LOPES v. PEABODY, 417 Mass. 299 (1994)

629 N.E.2d 1312

Supreme Judicial Court of Massachusetts. Suffolk.December 8, 1993.
March 14, 1994.

Present: LIACOS, C.J., WILKINS, NOLAN, LYNCH GREANEY, JJ.

Zoning, Wetlands, Validity of by-law or ordinance. Eminent Domain, What constitutes taking. Constitutional Law, Taking of property.

A purchaser of land subject to a zoning restriction at the time of his purchase is entitled to challenge the continued applicability of the restriction. [302-303] The court discussed the factors to be considered in light of Lucas v. South Carolina Coastal Council 112 S.Ct. 2886 (1992), on remand of an action challenging the validity of a section of a zoning ordinance establishing a wetlands conservancy district. [303-307]

CIVIL ACTION commenced in the Land Court Department on December 12, 1989.

The case was heard by Marilyn M. Sullivan, J.

After review by the Appeals Court and remand to that court by the Supreme Court of the United States, the Supreme Judicial Court granted a request for direct review.

Nicholas J. Decoulos for the plaintiff.

Lawrence J. O’Keefe, City Solicitor, for the defendant.

The following submitted briefs for amici curiae:

Daniel J. Popeo Paul D. Kamenar, of the District of Columbia, for Washington Legal Foundation.

Richard S. Emmet for Conservation Law Foundation another.

John D. Echeverria Sharon Dennis, of the District of Columbia, for National Audubon Society.

Scott Harshbarger, Attorney General, Stephen Dick,
Assistant Attorney General, for the Commonwealth.

Page 300

WILKINS, J.

We consider this case on remand from the Supreme Court of the United States in light of that Court’s opinion in Lucas v South Carolina Coastal Council, 112 S.Ct. 2886 (1992).[2] In its Lucas opinion, the Supreme Court held that a landowner was entitled to compensation for a taking when a zoning regulation effectively prohibited all economically beneficial use of the land, unless the prohibition could be independently justified under principles of South Carolina nuisance or property law Id. at 2900.

The plaintiff Lopes commenced this action in the Land Court in December, 1989, pursuant to G.L.c. 185, § 1 (j 1/2) (1992 ed.), and G.L.c. 240, § 14A (1992 ed.), to challenge the validity of a section of the Peabody zoning ordinance (§ 4.3.4). That section establishes a wetlands conservancy district, as an overlay district, in various parts of the city. Lopes owns a vacant parcel of approximately one-quarter acre which abuts Devil’s Dishfull Pond, a great pond (G.L.c. 131, § 1 [1992 ed.]), and lies, in large measure, within the wetlands conservancy district.[3] In 1981, six years after the city had adopted the challenged zoning provision,

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Lopes acquired the lot, along with three other noncontiguous parcels. The lot, which is in a single family residence district, is bounded on the south by a railroad right of way; on the east by Lake Street, a public way; and on the west and north by the great pond. The elevation of all but a small portion of the lot is below the 88.5 foot contour of the wetlands conservancy district.

The judge found that the elevation defining the district was based on the expected consequences of a one-hundred-year storm, taking into account the constraint on the flow of water created by Lake Street and the culvert that provides an outflow for the great pond. That outflow would ultimately reach the Ipswich River and the ocean. Lopes could locate a small house on the lot without impinging on the thirty-foot setback requirement but no such construction would be permitted, unless the minimum elevation allowed in the district were reduced.[4] The parties stipulated that Lopes “is unable to use his land as a result of the revision of the Zoning Ordinance.” The judge viewed Lopes’s use of the land to be a mixed question of law and fact. There was no evidence to permit a comparison of the fair market value of the property with and without the restrictions in effect.[5]

A judge of the Land Court ruled that the city’s determination of 88.5 feet as the minimum permitted elevation in the wetlands conservancy district at Devil’s Dishfull Pond was a valid exercise of legislative discretion, was not arbitrary or unreasonable, and was enforceable as applied to the Lopes lot. She further ruled that there had been no taking of Lopes’s land for which he was entitled to compensation. Lopes appealed to the Appeals Court.

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On July 7, 1992, the Appeals Court in an unpublished memorandum (32 Mass. App. Ct. 1124 [1992]) concluded that, although, in its words, Lopes had “no practical or beneficial use of his land,” due process considerations did not compel a decision in his favor. It concluded that conservation objectives and the prevention of flood damage to homes justified as rational the elevation contour selected to define the district at Devil’s Dishfull Pond. The Appeals Court thought it significant that Lopes had purchased his property with full knowledge of its location in the restricted district. In similar terms, it discussed Lopes’s claim that his land had been taken without compensation, noting authority for the adoption of reasonable restraints on land use for environmental reasons and concluding that Lopes, who knew of the regulations when he bought the parcel, “can hardly claim inverse condemnation.” On September 3, 1992, this court denied Lopes’s application for further appellate review. 413 Mass. 1105 (1992). About seven months later, the Supreme Court of the United States allowed Lopes’s petition for writ of certiorari and remanded the case to the Appeals Court. See note 2 above. We transferred the case here.

This action involves the validity of a zoning regulation and does not present a claim for damages as a result of a taking of Lopes’s property. Lopes’s argument in recent filings, however, has focused on the taking question.[6] Lopes’s right to damages cannot be resolved in this action.[7] But the validity

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of the ordinance is before us, and Lopes, a purchaser of land subject to the restriction at the time of his purchase, has every right to challenge the continued application of the restriction. See Barney Carey Co. v. Milton, 324 Mass. 440, 444-445 (1949). We see no reason to permit challenges to the validity of a zoning enactment only by those landowners who owned land when the zoning provision first affected it. A rule that a purchaser of real estate takes subject to all existing zoning provisions without any right to challenge any of them would threaten the free transferability of real estate, ignore the possible effect of changed circumstances, and tend to press owners to bring actions challenging any zoning provision of doubtful validity before selling their property. Moreover, such a rule of law would in time lead to a crazy-quilt pattern of the enforceability of a zoning law intended to have uniform applicability.[8]

We do not attribute to Peabody an intention to adopt a zoning restriction that denies all economically beneficial use to a parcel of land except where, in circumstances recognized by th Lucas opinion, that restriction is independently justified by other principles of land use law restricting the use of that land. Hence, if the ordinance denies the Lopes property all economically beneficial use and no justification exists for

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that restriction, a judgment should be entered that the restrictions of the ordinance are inapplicable to Lopes’s property to the extent necessary to eliminate that denial, that is, to permit an economically beneficial use of the land. We attribute to the city, as a matter of State law, the intention to have the ordinance enforced to the extent that it is constitutionally permissible to do so. No general order of invalidation of the ordinance, or of specific provisions of it, would be warranted as a result of a determination that, as applied to one lot, the limitations of the ordinance were invalid in whole or in part.

On the other hand, if the ordinance does not deprive the Lopes property of all economically beneficial use, the validity of the ordinance and the related question whether there has been a regulatory taking must be considered for Federal constitutional purposes under the principles that were applicable prior to th Lucas case (and, of course, in any event, pursuant to any further guidance that may be available from the Supreme Court before the Land Court should decide the case). See, as to the regulatory taking question, Agins v. Tiburon, 447 U.S. 255, 260 (1980), and Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978).

The case must be remanded to the Land Court for a new hearing and further consideration. The Lucas opinion appears to have changed, or at least refocused, the applicable standards for determining whether, for Federal constitutional purposes, there has been a regulatory taking of property. An essential fact question is whether application of the ordinance has caused the Lopes land to have no economically beneficial use. If the land has no economically beneficial use, a term that the Supreme Court has not yet defined,[9] the ordinance

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may be upheld only if it substantially advances legitimate State interests and its application to the Lopes land reflects established principles of State property and nuisance law. Se Lucas, supra at 2893-2894, 2900. If the ordinance makes a regulatory taking of Lopes’s property, the ordinance must be declared invalid to that extent (but only to that extent) as applied to Lopes’s property. It is apparent in retrospect that the Appeals Court should have remanded the case to the trial court for the taking of further evidence and for further findings, as was done in Commissioner of Natural Resources v S. Volpe Co., 349 Mass. 104, 111-112 (1965).[10]

The Land Court judge may elect first to consider the question whether Lopes has proved that the zoning restriction, particularly the 88.5 foot minimum elevation, does not substantially advance legitimate State interests as applied to his lot. See Lucas, supra at 2893-2894; Agins v. Tiburon, 447 U.S. 255, 260 (1980). There is no doubt that flood control and the prevention of pollution of surface and ground water (and great ponds)[11] are legitimate State interests. Lopes is

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entitled to try to prove that these legitimate State interests are not served by the 88.5 foot contour in any substantial way that a lower contour would not serve. The Land Court judge considered conflicting expert views on the soundness of the imposition of the 88.5 foot contour. She suggested that that line preserved a margin of safety, and that its selection was a peculiarly political decision. The Lucas case directs that the test must be made on a case by case basis as to the particular land involved. After the Lucas opinion, generally expressed political judgments concerning the desirability of a zoning regulation will do little to resolve the question whether a regulation substantially advances State interests. See Lucas, supra at 2896-2899.[12]

The Land Court judge, on the other hand, may wish first to decide whether the regulation deprived the land of all economically beneficial use. Of course, the land must be otherwise useable, economically and legally, for Lopes to demonstrate that the zoning regulation is unlawful. In other words, Lopes would have to show that his land, free of the regulation, has some economically beneficial use and that it has none when subject to the zoning regulation.

If the judge concludes that the zoning regulation deprives the parcel of all economically beneficial use, the Lucas opinion advises us that there is a categorical regulatory taking, unless under the land use law of the Commonwealth the proposed use would be a nuisance or otherwise impermissible. Lucas, supra at 2900. In that instance, a zoning regulation could validly prohibit in advance any use of land that State

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law would bar in any event. Id. It is not for us now to be specific on the subject of restrictions that, for example, the law of nuisance and the law of riparian rights impose on the use of land subject to periodic flooding. See von Henneberg v Generazio, 403 Mass. 519, 523 (1988); Lummis v. Lilly, 385 Mass. 41, 44-45 (1982); Tucker v. Badoian, 376 Mass. 907, 918 n. 2 (1978) (Kaplan, J., concurring); Turnpike Realty Co. v Dedham, 362 Mass. 221, 228 (1972), cert. denied, 409 U.S. 1108
(1973); Dartmouth v. Silva, 325 Mass. 401, 404 (1950) Parker v. American Woolen Co., 195 Mass. 591, 600 (1907).[13]

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The judgment of the Land Court is vacated, and the case is remanded to the Land Court for further proceedings consistent with this opinion.[14]
So ordered.

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