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Massachusetts Appeals Court Addresses Regulatory Taking of Property for Wetlands Protection

Owners of real property located in New England coastal areas or near other protected natural resources are subject to local, state, and federal laws that may restrict or prohibit construction on the property in ways that the owner may not expect. The Appeals Court of Massachusetts recently published an opinion in a case filed by a property owner who sought compensation from the municipal agency that denied her construction permits to construct a home on a vacant lot.

The plaintiff in the recently decided case is a woman who inherited an unimproved lot in a residential subdivision from her parents and desired to build a home on the property. Her parents purchased the land in 1975, but the plaintiff did not take action to build on the property until 2006. Between the time of the purchase of the property and the plaintiff’s attempts to construct a home, various wetlands protection ordinances were enacted that required the plaintiff to obtain the approval of the defendant town conservation commission before building on the property. The defendant denied the plaintiff’s application for a permit to construct her desired home, and the lot was deemed unsuitable for any residential construction because of the wetlands protection laws.

The plaintiff filed a lawsuit in state court against the defendant, seeking compensation from the town under the legal theory that the decision restricting her from constructing a home on her property amounted to a regulatory taking, for which she was entitled to just compensation. After a trial was held, a jury awarded the plaintiff the fair market value of the property as if it were suitable for construction, and the defendant appealed.

The defendant made two arguments to the Appeals Court of Massachusetts. First, the defendant claimed that the denial of construction permits under a municipal regulatory scheme was not a case in which the plaintiff was entitled to a trial by jury. The Court agreed that because the plaintiff’s claim was not a type of claim that was allowed at the time of the enactment of the state constitution, that the plaintiff was not entitled to a jury trial as a matter of right. Second, the defendant argued that the defendant’s actions in denying the plaintiff a construction permit could not be seen as a regulatory taking as a matter of law. The court agreed with the defendant, finding that the economic impact of the decision was not unfair to the plaintiff (as the property was still worth more than the purchase price, even if it was not buildable), and that the defendant’s actions did not constitute a physical invasion as required for a regulatory taking under state law. As a result of the Court’s decisions, the jury verdict will be reversed, and the plaintiff will not receive compensation from the town for their decision to deny construction on the plaintiff’s property.

Do You Have Concerns About Wetlands Protection Restrictions or Regulatory Takings?

If you own or are looking to purchase property and intend to construct a home or other building on the lot, you may be subject to conservation ordinances or easements that could hamper your plans and significantly reduce the value of your investment. With the advice of a skilled Rhode Island real estate attorney, you will have the best chance of obtaining the needed permits and being able to construct the home you desire. The Rhode Island real estate attorneys at Bilodeau Capalbo, LLC can advise you and represent your case to municipal boards, and take your case to court if necessary. Contact us with concerns you may have before you purchase a property or plan a construction project. Call and schedule a meeting with a skilled attorney at Bilodeau Capalbo today by contacting our offices at 401-300-4055.

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