Others 1 v. Dep't Of Conservation, SJC-10626.

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 932 N.E.2d 267,457 Mass. 634
• Decision Date: 26 August 2010
• Parties: Clealand B. BLAIR & others 1 v. DEPARTMENT OF CONSERVATION AND RECREATION.
• Docket Number: SJC-10626.

457 Mass. 634
932 N.E.2d 267

Clealand B. BLAIR & others ¹
v.
DEPARTMENT OF CONSERVATION AND RECREATION.

SJC-10626.

Supreme Judicial Court of Massachusetts,Worcester.

Argued May 4, 2010.
Decided Aug. 26, 2010.

932 N.E.2d 268

COPYRIGHT MATERIAL OMITTED.

932 N.E.2d 269

George P. Kiritsy, Rutland, for the plaintiffs.

Seth Schofield, Assistant Attorney General, for the defendant.

The following submitted briefs for amici curiae: Heather A. Walsh & Peter Shelley, Boston, for Conservation Law Foundation.

Robert S. Mangiaratti, Quincy & Thomas J. Urbelis, Boston, for City Solicitors and Town Counsel Association.

Gregor I. McGregor & Luke H. Legere, Boston, for Massachusetts Association of Conservation Commissions.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

COWIN, J.

457 Mass. 635

The Watershed Management Act, G.L. c. 92A1/2, §§ 1-20(Act), is designed to protect certain water systems that are critical to the public water supply. The plaintiffs ² own lakefront property located within a 200-foot buffer zone created by the Act for land abutting particular sources of drinking water. Pursuant to G.L. c. 92A1/2, § 5, alterations within that buffer zone are prohibited unless a variance is issued. The plaintiffs' single-family home is located on the property. To increase the size of their lawn and double the extent of their existing sandy beach, the plaintiffs sought a variance to remove trees from a forested area of their property. The Department of Conservation and Recreation (department) denied the variance on the ground that the proposed alterations would be harmful to the water supply; the department determined that the trees in their natural state would better protect water quality than would a lawn and beach.

The plaintiffs sought judicial review, asserting that the denial of the variance was a regulatory taking of a portion of their property, and that they were entitled to compensation by art. 10 of the Massachusetts Declaration of Rights ³ and art. 49 of the Amendments to the Massachusetts Constitution, as amended by

457 Mass. 636

art. 97 of the Amendments (art. 49). ^{4 , 5} Because we

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decline to adopt the plaintiffs' argument that, for the purposes of a regulatory taking, the “relevant parcel” is the affected portion of the property, rather than the entire parcel, we agree with the determination of the Superior Court that the denial of the variance did not constitute a regulatory taking and affirm the judgment. ^{6 , 7}

1. Background and prior proceedings. The essential facts are not disputed. In 1977, the plaintiffs purchased a 2.87 acre parcel on Demond Pond in Rutland. ⁸ Demond Pond is deemed a “great pond” protected under G.L. c. 92A1/2, § 1; it drains into the Ware River, which intermittently enters the Quabbin Reservoir. ⁹ When the plaintiffs purchased the property, it was largely forested but contained a small vacation cottage and a sixty-foot sandy beach. In 1994, the plaintiffs received a building permit from

457 Mass. 637

the town of Rutland (town) to demolish the cottage and construct a year-round single-family home with a detached three-car garage; they occupy this home for “several months” each year. These modifications conformed with the provisions of G.L. c. 92A1/2, § 5 ( h ), which explicitly permit construction of a single-family home on any lot existing prior to July 1, 1992 (the effective date of the Act).

In 1997, the plaintiffs further modified a portion of the property within the buffer zone. They cut down trees; extended the lawn by 6,000 square feet; excavated topsoil along the shoreline and imported sand to lengthen the beach by sixty feet (8,000 square feet); installed an eighty-foot long by thirty-inch high retaining wall; and built a three-foot wide brick path across the lawn to the beach. Although the plaintiffs obtained a building permit from the town to make these enhancements, they did not seek a variance from the department.

Pursuant to G.L. c. 92A1/2, § 8, the department instituted enforcement proceedings, alleging that, by making the modifications without obtaining a variance, the plaintiffs had violated the terms of G.L. c. 92A1/2, § 5. A Superior Court judge rejected the plaintiffs' takings claim, determined that the plaintiffs had violated the Act, and ordered the property restored to the condition that it was in prior to the 1997 modifications. The plaintiffs appealed and the Appeals Court determined that, since the plaintiffs had not applied for and been denied a variance, their claims were not ripe for review. See Commonwealth v. Blair, 60 Mass.App.Ct. 741, 749, 805 N.E.2d 1011 (2004).

932 N.E.2d 271

The plaintiffs then entered into an agreement with the department whereby they removed portions of the beach and the retaining wall and replanted their property in accordance with the department's requirements. They applied subsequently for a variance to restore the improvements that had been removed pursuant to the agreement with the department. The department denied that application and the plaintiffs again sought review in the Superior Court, claiming that the denial of the variance constituted an unconstitutional taking without compensation in violation of art. 10 and art. 49. A second Superior Court judge denied the plaintiffs' claims and the plaintiffs appealed to the Appeals Court. We transferred the case on our own motion.

457 Mass. 638

2. Provisions of the Act. The Act was designed to protect designated reservoirs and their tributaries (the “watershed system”), including the Quabbin Reservoir, in order to provide a clean public water supply. See G.L. c. 92A1/2, § 1. The Act prohibits “alterations” within 200 feet of the banks of waters within the watershed system, and limits certain types of development within 400 feet of those banks. See G.L. c. 92A1/2, §§ 1, 5; 350 Code Mass. Regs. §§ 11.00 et seq. (1994). As applicable here, “alterations” are defined to include “draining, dumping, dredging, damming, discharging, excavating, filling or grading; ... [and] the changing of run-off characteristics.” G.L. c. 92A1/2, § 1. However, such alterations may be permitted if a variance is obtained. See G.L. c. 92A1/2, § 5 ( l ). The Act authorizes the department, on behalf of the Commonwealth, to “take by eminent domain ..., or acquire by purchase or otherwise, lands in fee, easements, rights and other property that it deems necessary or desirable for carrying out the powers and duties [conferred upon it by the Act].” See G.L. c. 92A1/2, § 17.

3. Takings claims. The plaintiffs argue that the Act is facially invalid under both art. 10 and art. 49, because it grants the department a de facto property interest in their real estate without compensation. Thus, they urge us to declare the Act unconstitutional on its face. In addition, the plaintiffs contend that provisions of the Act, as applied to them through the denial of the variance, represent a taking without compensation. The plaintiffs assert that the denial of the variance was a physical taking because it granted an easement or the equivalent of an easement to the department, including the right to enter onto the property. They claim further that we should interpret art. 10 (requiring that “no part of the property of any individual” may be taken without compensation) to provide more expansive protection than the just compensation clause of the Fifth Amendment to the United States Constitution (“nor shall private property be taken for public use, without just compensation”), and that, under this more expansive reading, the denial of their application for a variance was a regulatory taking without compensation and was thus unconstitutional.

a. Facial invalidity. The plaintiffs claim that the Act is facially unconstitutional because it grants the equivalent of an easement

457 Mass. 639

to the department without compensation. We presume that statutes are constitutional; a plaintiff making a facial challenge to a statute faces a heavy burden to prove otherwise. See Blixt v. Blixt, 437 Mass. 649, 652, 774 N.E.2d 1052 (2002). See also Sturges v. Chilmark, 380 Mass. 246, 256, 402 N.E.2d 1346 (1980). The plaintiffs fail to satisfy that burden.

A statute does not, on its face, effect an unconstitutional taking when there are any circumstances in which an owner

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retains an economically viable use of his or her property. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 295-297, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). The Act provides a variance procedure pursuant to which landowners may seek exemption from the prohibition on building in the buffer zone. G.L. c. 92A1/2, § 5 ( l ). In addition, the Act sets forth a number of explicit exceptions, among them uses lawfully existing prior to July 1, 1992, and the construction of a new single-family home on any lot existing prior to July 1, 1992. See G.L. c. 92A1/2, § 5 ( c ), ( h ). Moreover, the Act authorizes the department to take by eminent domain, see G.L. c. 92A1/2, § 17, necessarily invoking the right to obtain compensation pursuant to G.L. c. 79, § 10.

Because the Act includes explicit exceptions as well as a variance procedure, the Act does not, on its face, establish an interest in land without compensation under every possible circumstance. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, supra. See also Gilbert v. Cambridge, 932 F.2d 51, 64 (1st Cir.1991). Therefore, the Act is not facially invalid and we turn to the plaintiffs' as applied claims.

b. Physical taking. A physical or per se taking necessitating compensation under the Fifth Amendment requires a permanent physical intrusion on, or outright acquisition of, an interest in the property by the government for public use. See Yee v. Escondido, 503 U.S. 519, 522, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992); Philip Morris, Inc. v. Reilly, 312 F.3d 24, 33 (1st Cir.2002). See discussion in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional...