Daddario v. Cape Cod Com'n

• Citation: 56 Mass. App. Ct. 764,780 N.E.2d 124
• Decision Date: 18 December 2002
• Docket Number: No. 00-P-1851.,00-P-1851.
• Parties: Francis E. DADDARIO v. CAPE COD COMMISSION.
• Court: Appeals Court of Massachusetts

780 N.E.2d 124

56 Mass. App. Ct. 764

Francis E. DADDARIO v. CAPE COD COMMISSION.

No. 00-P-1851.

Appeals Court of Massachusetts, Suffolk.

Argued September 17, 2002.

Decided December 18, 2002.

Further Appellate Review Denied February 27, 2003.

COPYRIGHT MATERIAL OMITTED

Thomas O. Moriarty, Braintree, for the plaintiff.

H. Hamilton Hackney, III (Eric W. Wodlinger with him) for the defendant.

Present: CYPHER, McHUGH, & KAFKER, JJ.

KAFKER, J.

The plaintiff, Francis E. Daddario, sought a permit to mine sand and gravel on thirty-two acres of a seventy acre parcel (locus) on Cape Cod. The Cape Cod Commission (commission), established by St.1989, c. 716 (Act),¹ and charged by the Legislature with regulating "developments of regional impact" (DRIs)² on the Cape, denied the permit. Next, a judge of the Land Court ruled that the commission's decision constituted a taking, but did not address the plaintiff's other claims. The Supreme Judicial Court reversed the takings decision, relying on "both the Federal ripeness doctrine and regulatory taking principles," and remanded the case to the Land Court for further proceedings. Daddario v. Cape Cod Commn., 425 Mass. 411, 681 N.E.2d 833, cert. denied, 522 U.S. 1036, 118 S.Ct. 644, 139 L.Ed.2d 621 (1997). On remand, another judge of the Land Court (the first judge had retired), decided, based on the Supreme Judicial Court's analysis in Daddario, to decline any further consideration of the takings claim. The judge also granted the commission's renewed motion to dismiss, under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), the plaintiff's claims that the Act was void for vagueness and, as applied, violated the plaintiff's rights to equal protection of the laws.³ The plaintiff appeals the Land Court's decision on remand. We affirm.

Background. 1. The Act and the regional policy plan. The Act recognizes the "unique natural, coastal, scientific, historical, cultural, architectural, archaeological, [and] recreational values" of the Cape. § 1(a) of the Act. It declares that these values are being "threatened and may be irreparably damaged by uncoordinated or inappropriate uses of the region's land and other resources." Ibid.

The purpose of the Act is to protect the Cape's unique natural and man-made environment and provide for "balanced and sustainable economic development." § 1 of the Act. The Act establishes a process for commission review of DRIs, along with standards and criteria for the review based on factors including:

"the impact of the development on the environment and natural resources ... [and on] existing capital facilities the physical size of the development ... the amount of pedestrian and vehicular traffic [generated by] the development ... the anticipated number of new residents or employees generated ... [and] the importance of the development to economic development in the region."

§ 12(b) of the Act.

The commission is directed to approve DRIs if, inter alia:

"the probable benefit from the proposed development is greater than the probable detriment; [and] ... the proposed development is consistent with the regional policy plan and ... the proposed development is consistent with municipal development by-laws."

§ 13(d) of the Act.

Notwithstanding these requirements, the commission is required to "approve or approve with conditions a development of regional impact where an applicant demonstrates that to disapprove the development of regional impact would constitute a taking of property in violation of the Massachusetts and United States Constitutions; provided, however, that no reasonably foreseeable danger to the public health or safety will arise from such approval or approval with conditions." § 13(f) of the Act.

The Act requires the commission to prepare a regional policy plan to "reflect and reinforce" the objectives set out in the statute, § 7(a) of the Act, and establishes a public process for its formulation. The plan developed by the commission includes "minimum performance standards" for applicants proposing DRIs, including requirements that developments be designed to minimize impacts on wildlife, plant habitat, and the alteration of natural topography.⁴ Commercial developments with regional impacts are required permanently to maintain forty percent of the lot being developed, excluding wetlands, as open space.

2. Daddario's proposal. The plaintiff owns seventy acres of land off Thomas Landers Road in Falmouth. The locus is undeveloped forested land with wetlands and a vernal pool, and is zoned for agricultural purposes. It abuts existing gravel operations, a residential subdivision, a great pond, and town-owned conservation property. It is within the zone of contribution to the Mares Pond public supply well and numerous private wells.

The plaintiff's proposal calls for thirty-two acres of sand and gravel extraction in seven sequential phases, each involving five acres or less. The proposal includes a two hundred foot buffer zone around the perimeter of the development. At the completion of the mining, the plaintiff proposes to develop the property for residential use. The plaintiff states the project would be beneficial for the area because of its potential to create jobs in the local community, increase the local availability of reasonably priced gravel, decrease the amount of vehicular traffic on the Cape caused by bringing in gravel, and increase town tax revenues while comporting with similar activity in the area.

The plaintiff rejected an alternative proposal by the commission that would have allowed mining on twenty-five acres. Daddario, 425 Mass. at 417, 681 N.E.2d 833.

3. The commission's action. The commission determined that "[m]ining the site would remove approximately [thirty-two] acres of mature, natural plant and wildlife habitat that could not be replaced through the proposed reclamation of the site." The commission also found that the project design failed to minimize (1) the impact on wildlife and plant habitat, and (2) alteration of natural topography, in violation of minimum performance standards 2.4.1.1B.1 and 2.4.1.1B.2 of the regional policy plan. The project also reduced open space and the "applicant refused to agree to any permanent restriction of open space in violation of [minimum performance standard] 6.1.5."

The commission further found that the proposal presented risks of groundwater contamination by bringing the land surface to within ten feet of the groundwater table. The commission also identified the soils in the locus as "transmissive."

The commission discounted the benefits claimed by the plaintiff, finding that the "project would not contribute to a balanced economy consistent with Cape Cod's environmental strengths and constraints." It (1) described mining as a "consumptive activity," (2) remarked on the "widespread availability" of sand and gravel on the Cape, and (3) found that the project had not been designed to minimize environmental impacts.

The commission concluded that the "probable benefit does not outweigh the project's probable detriment," and that the plaintiff had not met the minimum performance standards of the regional policy plan.

Discussion. 1. The takings claim. Over the plaintiff's objection, the Land Court judge on remand declined to further consider the takings claim because he concluded that the Supreme Judicial Court in Daddario had determined that the takings claim was not ripe. In a novel interpretation of Daddario, the plaintiff argues that the Land Court erred because the Supreme Judicial Court remanded the matter for a further determination whether his takings claim was ripe for adjudication based on additional analysis by the Land Court of the economic value of the locus. The plaintiff has misunderstood the essential point of the Supreme Judicial Court's decision, which is that, without further interaction between the commission and the plaintiff, the extent of the regulation and the resulting value of the locus cannot be determined, and therefore any takings claim is premature.

The court in Daddario emphasized that a regulatory takings claim "is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Daddario, 425 Mass. at 414, 681 N.E.2d 833, quoting from Williamson County Regional Planning Commn. v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). This involves "a final determination on the nature and extent of development that the commission will permit." Daddario, 425 Mass. at 415, 681 N.E.2d 833. The rationale is that a "court cannot determine whether a regulation has gone `too far' unless it knows how far the regulation goes." Ibid., quoting from MacDonald, Sommer & Prates v. County of Yolo, 477 U.S. 340, 348, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986). Compare Palazzolo v. Rhode Island, 533 U.S. 606, 620, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (where "permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened").

In the instant case, the plaintiff has submitted a single permit application to the commission in which he proposed to mine thirty-two acres of the property. In response, the "commission's staff proposed a plan which would have permitted sand and gravel extraction on twenty-five acres [in different sites with less environmental impact], but the plaintiff declined to consider this alternative or modify his proposal." Daddario, 425 Mass. at 417, 681 N.E.2d 833. The plaintiff contends that this proposal would have required him to excavate in violation of local zoning bylaws and therefore it was not feasible. Without further interaction between the plaintiff and the commission, however, it is not possible to determine whether any economically viable sand and gravel mining operation acceptable to the commission could be identified.⁵ The same is...