Petition for Writ of Certiorari — Leonard v. Town of Brimfield

Supreme Court, U.S.

FIL&ED

96 S89 SEP 1219%

OFFICE OF THE CLERK

No. 96-

In The

Supreme Court of the United States

October Term 1996

MARY E. LEONARD,

Petitioner,

Vv.

TOWN OF BRIMFIELD and CYNTHIA K.

POWERS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS

PETITION FOR A WRIT OF CERTIORARI

AND APPENDIX

Greg T. Schubert

Market Place

1365 Main Street

Springfield, MA 01103

(413) 746-1313

Counsel for Petitioner

October 1996

. _ rs . ~e .

eg LT Rs a o al PO sable. 2.

QUESTION PRESENTED

Was there a compensable taking where

a town enforced a one-thousand year flood

plain zone, for the first time, after the

petitioner purchased land, destroying her

investment-backed expectations for two

parcels in her four-parcel subdivision?

TABLE OF CONTENTS

QUESTION PRESENTED. ©. ccc ence cccsteonves i

TABLE OF AUTHORITIES .. ccc cieetivewuse iii

OPTICS BERANE. wie cw e ee ctu cebeceseus 02

Nit be toy te | Pe ren Geer ars mee wre os 02

CONSTITUIONAL PROVISIONS INVOLVED...... 03

STATE oo 0 eke eee eee Tee oP UO 60S 8S 03

REASONS FOR GRANTING THE WRIT.......... 10

a Massachusetts’ Interpretation

Of The Fifth Amendment’s

“Taking Clause” Conflicts

With Michigan’s Interpretation

Causing A Split Of Authority

In The State Courts......... 10

II. The Decision Of The Supreme

Judicial Court Of

Massachusetts Was Erroneous.

III. The Question Presented Is

pe. err eras et 28

COMRCLOSION . wc ccc ccccscncncnsesecesseses 30

INDEX TO APPENDIX

A. Opinion of the Massachusetts

Supreme Judicial Court.............. Al-19

B. Massachusetts Superior Court’s

I A19-30

ie Opinion of the State of

Michigan Court of Appeals.......... A31-69

D. Massachusetts Superior Court’s

Rulings and Order in earlier

ap gentle alia caesar A70-75

TABLE OF AUTHORITIES

Cases

noi >i € Ti

447 U.S. 255 (1980) ....... eee eee erence 16

C U : 2 ej

Guar. Corp., 475 U.S. 211 (1986)....14,15

: lish E lical Lut)

Church of Glendale v. County

of Los Angeles California

G52 0.0. BOG Clee ic roo akc wte rs Fae CR 28

Fragopoulos v. Rent Control Bd

See. Se... Oe SEE ec ckceenhanee hee 23

Jacobs v. United States

Se Oe ee a a Pea es oes 28

K_& K Construction Inc. v._

Department of Natural Resources,

Me. TGBISS.. came OG, Bee Occccuccascsecie 12

K ) 3; , er

v. DeBenedictis,

PY SR Pe me ys Tg Re oe 17 n.6

Lopes _v. City of Peabody

Gar SG. we. Seen 6h Ss Ks hots Gees anecews 26

Council, 505 U.S. 1003 (1992)

igre tira id ath bo hans 11,15,16,17,17n.6,18,19-29

iv

a) ee peapee 11,12,16,29

9 F.20 15 (19987... 16,19,21,22

438 U.S. 104 (1978)........ 15,19, 21, 22,23

26 U.8. 355 GS... US ae a gs

467 U.S. 986 (1984)....... btn cna 15

Vv. Beckwith, 449 U.S. 155 (1980)....... 13

Other Authorities

Rose, Mahon Reconstructed:

Why The Taki is Stil]

Muddle

57 S$. Cal. L. Rev. S61 (1984)...___ 17 n.6

In The

Supreme Court of the United States

October Term 1996

MARY E. LEONARD,

Petitioner,

Vv.

TOWN OF BRIMFIELD and CYNTHIA K.

POWERS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT FOR THE

COMMONWEALTH OF MASSACHUSETTS

MARY LEONARD respectfully petitions

this Court for a writ of certiorari to

review the order and opinion of the

Massachusetts Supreme Judicial Court

affirming the judgment of a Massachusetts

Superior Court that the Town of Brimfield

did not effectuate a compensable taking

of two parcels of land.

OPINIONS BELOW

The opinion of the Massachusetts

Supreme Judicial Court is reported at 423

Mass. 152, 666 N.E.2d 1300 (1996) and is

Appendix A to this petition. The rulings

and decision of the Massachusetts

Superior is Appendix B. The opinion of

the State of Michigan Court of Appeals is

Appendix C, and the Findings, Rulings and

order for Judgment of the Brimfield

Zoning Board of Appeals is Appendix D.

JURISDICTION

The opinion and order of the

Massachusetts Supreme Judicial Court was

rendered on July 11, 1996. The

jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

Unites States Constitution, Fifth

Amendment :

* nor shall private property be

taken for public use, without just

compensation.”

United States Constitution, Fourteenth

Amendment :

Section 1. *. . . nor shall any State

deprive any person of life, liberty, or

property, without due process of law.

STATEMENT OF THE CASE

On July 9, 1987, Mary Leonard of

Brimfield, Massachusetts sued the Town of

Brimfield (Brimfield) . In Count III,

Leonard asserted that Brimfield’s

decision to enforce a one thousand

a

rr wa ar ee ae ae

(1,000) year flood plain zone,+ was a

regulatory taking subject to the Just

Compensation Clause. A Massachusetts

Superior Court entered judgment for

Brimfield on Count III. (A.19-30). The

Massachusetts Supreme Judicial Court

affirmed the judgment (A.1-18).

In August 1986, Leonard bought a

sixteen acre lot between the Quaboag

River and Dunhamtown Road, Brimfield,

Massachusetts. She immediately hired

Engineer Donald Smith to draw a plot plan

subdividing the land into parcels 12A

through 12D. (A.70-71). The parcel

described on Leonard’s original building

permit application was 3.9 acres, which

1 See footnote 4, for calculation of

estimated flooding frequency.

4

corresponded with lot 12B of her

subdivision. (A.21-23).

Leonard testified that she prepared

her subdivision plan in early 1987. The

board approved it in 1988 and Leonard

recorded it on January 13, 1989.2 (a.24-

25). After her land purchase, Leonard

hired contractor Robert Simcus who

applied for a building permit to build

specifically on parcel 12B of Leonard's

subdivision as drawn by Engineer Donald

Smith. (A.70-72). Building inspector Jack

2 The Superior court found that Leonard’s

property was a single l6-acre lot and that

Leonard had taken no action to subdivide her

property until one year after she filed the

civil action on appeal before this Court. It

found that the ZBA’s decision to restrict

construction to an elevation greater than three

hundred seventy (370) feet allowed Leonard to

build on six of the Sixteen acres originally

purchased.

Keogh issued a permit, but revoked it

when he determined that Leonard’s land

was in a flood plain zone and not

formerly subdivided and planning board

approved . . . even though Leonard’s

subdivision was designated “approval not

required.” (A7-8) .?

Leonard learned, for the first time,

that her land was in a flood plain when

Mr. Keogh revoked her building permit.

Consequently she sought a special permit

before the Brimfield Zoning Board of

Appeals (ZBA). Nine months later, in June

3 Mr. Keogh explained that he revoked

the permit when he notice that the application

indicated that the permit applied to a plot of

3.9 acres and the land was in a flood zone. He

made it clear that the absence of the stamped

and approved subdivision was immaterial to his

decision because the planning board would have

approved the subdivision merely by stamping it

approved. The flood plane zone was the issue.

2, 1987, the ZBA issued a special permit

containing the restriction that Leonard

build her house at an elevation of at

least three hundred seventy (370) feet,

which is approximate elevation of a one

thousand year (1,000) year flood plain

zone (A.70-73) .4

4 Michael Koprowski, who was chairman

of the ZBA when it reviewed Leonard’s special

permit application in 1987, testified

incorrectly that Leonard’s entire property was

in a one hundred (100) year flood plain zone.

Leonard’s trial counsel suggested that the flood

plain zone existing above Leonard’s property was

a five hundred (500) year zone. The trial court

“seemed to recall that (Welch, J.) found that

part of Leonard’s land was in the one hundred

(100) year plain and part of it was in a five

hundred (500) year plain.

Koprowski also testified incorrectly that

the elevation of the Quaboag River was three

hundred sixty (360) feet and that the ZBA wanted

a ten (10) foot elevation between Leonard’s

house and the river. Three hundred sixty (360)

feet is the elevation of the one hundred (100)

year flood plain zone and not the elevation of

the river. Some of Leonard’s land is below the

ome (100) hundred year flood plain, some is in

7

a ee ».

eo a ee

a

The Brimfield bylaws require that

anyone in a flood plain must get a

special permit to build. The Chairman of

the Zoning Board of Appeals testified by

implication that persons, who built homes

near the Quaboag River on Dunhamtown

Road, in the flood plain, before Leonard,

built without special permits because

the one hundred (100) hundred year plain (above

360 feet) some of her land is in the five

hundred (500) year flood plain (above 365 feet)

and some is in the one thousand to twelve

hundred year flood plain (above 370 feet, which

the elevation required in this case for

construction) (A.70-73 [findings of Welch, J.]).

Each vertical foot of elevation corresponds

approximately to an additional one hundred years

in expected frequency of flooding. See for

example, three-hundred sixty (360) foot

elevation is the elevation for the one hundred

year flood plain zone and three-hundred sixty-

five (365) is the elevation for the five hundred

(S00) year flood plain zone. The estimated

flood frequency at the three hundred seventy

(370) foot elevation, therefore, is one thousand

years (1,000) (A.70-73).

there was a different building inspector.

The record shows that Brimfield

allowed construction of two houses in the

flood plain without enforcing the bylaws

requiring a special permit to build at

any elevation. The trial court noted (at

trial) that Leonard’s case represented

the first incidence of the town enforcing

the flood plain zone by proscribing

construction below the elevation of three

hundred seventy (370) feet.

Economic Impact On Leonard

Parcels 12€ and 12D of Leonard’s

subdivision have elevations substantially

below three hundred seventy (370) feet.

(A.20-24). A uncontradicted expert

testified that parcels 12C and 12D could

have been further subdivided into four

Seti igh

de Me cr ee a ed

Bp REL

lots, in compliance with the town’s

building code, having a fair market of

twenty to twenty five thousand dollars

($20,000.00 to $25,000.00) each.

REASONS FOR GRANTING THE WRIT

I. The Opinion Of The Massachusetts

Supreme Judicial Court Conflicts

With The Opinion Of The State Of

Michigan Court Of Appeals.

The Massachusetts Supreme Judicial

Court reasoned that Leonard did not hold

a “reasonable” investment-backed

expectation to subdivide her land because

the land was in a flood plain when she

purchased it. Because Leonard “purchased

the property subject to the restrictions

on building in a flood plain, the

reasoning continued, she may not complain

about the loss of a right she never

10

Pome os,”

eee ee eee

acquired. (A.11), citing Lucas v. South

Carolina Coastal Council, 505 U.S. 1003,

1027 (1992), and ignoring Nollan v.

California Coastal Comm'n, 483 U.S. 825,

833 n.2 (1987) (The landowners’ rights

were not altered because they acquired

the land well after the commission had

begun to implement its policy. So long as

the commission could not have deprived

the prior owners of the easement without

compensation, the prior owners must be

understood to have transferred their full

property rights in conveying the lot) .5

On June 4, the State of Michigan

5 The Supreme Judicial Court also

determined that the economic impact on Leonard

was not severe since she was able to build one

house and finally, it determined that the

character of the governmental action did not

show physical invasion. (A.12-14).

11

State Court of Appeals followed Nollan v.

California Coastal Comm'n, reasoning that

a sequence of regulation and then

ownership would not preclude compensation

for a taking where it would otherwise be

due. See K_& K Construction Inc. v.

Department of Natural Resources. (A.31-

69, {specifically A.44-46]). This

reasoning directly conflicts with the

reasoning of the Massachusetts Court that

land restriction whith existed at the

time of purchase bars an action for

taking because the government cannot take

what did belong to the petitioner.

II. The Opinion of the Massachusetts

Supreme Judicial Court Was Erroneous

Because There Was A Compensable

Taking Where Brimfield Enforced A

One-Thousand Year Flood Plain Zone,

For The First Time, After ‘* Leonard

Purchased Land, Which Destroyed Her

Investment-Backed Expectations For

Two Of Four Parcels.

A. Unless Governmental Action

The Takings Clause of the Fifth

Amendment provides that "private

property" shall not "be taken for public

use without just compensation." U.S.

Const., Amend. V. The Takings Clause is

applicable to the states through the

Fourteenth Amendment. See, e.g., Webb's

13

ve ae eT eee Vee O)

449 U.S. 155, 160 (1980).

| This Court has refused to develop

any set formula for determining which

property-right infringements amount to

compensable takings, relying "instead on

ad hoc, factual inquiries into the

circumstances of each particular case."

Connolly v. Pension Benefit Guar. Corp.,

475 U.S. 211, 224 (1986). Three factors

paramount in this inquiry are: (1) the

regulation's “economic impact" on the

property owner; (2) the extent to which

the regulation interferes with "distinct

investment-backed expectations:" and (3)

the "character" of the interference, that

is, whether the governmental action is

more akin to a physical invasion or to a

necessary readjustment of economic

14

benefits and burdens. Penn Central

Transportation Co. v. New York City, 438

U.S. 104, 124 (1978). accord Connolly,

475 U.S. at 225; Ruckelshaus_ v. Monsanto

Co., 467 U.S. 986, 1005 (1984).

This Court identified two categories

of governmental action that are per se

compensable violations of the takings

clause and require no further case-

Specific analysis. See Lucas v. South

Carolina Coastal Council, 112 S.ct. 2886,

120 L.Ed.2d 798, 812 (1992). ‘The first

category is a physical invasion of

property no matter what the

justification. Id. The second category

is regulatory action that denies “all

economically beneficial or productive use

of land.” Id. 112 S.ct. 2886, 120 L.Ed.2d

15

-

;

;

at 813, citing, Agins v. City of Tiburon,

447 U.S. 255, 260 (1980) (hallmark of per

se compensable taking is denial of

"economically viable use of [an owner's]

land”); Nollan _v. California Costal

Comm'n, 483 U.S. 825, 834 (1987) (same) ;

McAndrews v, Fleet Bank Of Massachusetts,

N.A., 989 F.2d 13, 18 n.7 (1993). Other

less sweeping regulatory action, however,

even action that does not unquestionably

deny “all economically beneficial or

productive use of land,” may still amount

to a compensable taking under federal

law. The determination depends upon the

results of a case-specific three-pronged

test. See the last paragraph in this

Section and Section I.C., below.

According to the Lucas Court, the

Standard, “all economically beneficial or

Productive use of land,” is difficult to

apply and causes inconsistent results.

Lucas, 112 S.ct. 2886, 120 L.Ed.2d. at

813 n.7. Justice Scalia pointed out that

this standard lacks precision because it

does not make clear the “property

interest” against which the loss of value

is to be measured. Lucas, 112 S.ct. 2886,

120 L.Ed.2d at 813 n.7.§

6 Because of this lack of precision,

even this Court had produced disparate holdings.

Lucas, 112 S.ct. 2886, 120 L.Ed.2d at 813 n.7.,

comparing , 260

U.S. 393, 414 (1922) (law restricting subsurface

extraction of coal held to effect a taking),

with j j

DeBenedictis, 480 u.s. 470, 497-502 (1987)

(mearly identical law held not to effect a

taking). See also Rose, Mahon Reconstructed: why

j j , 37 8. Cal.

L. Rev. 561, 566-569 (1984). It is important,

for this reason, to clarify “takings”

jurisprudence for the States.

17

Justice Scalia suggests that the

resolution to this imprecision, even for

per se compensable takings, requires

consideration of the property owner’s

reasonable expectations. Lucas, 112

S.Ct. 2886, 120 L.Ed.2d at 813. Justice

Scalia made it clear that property

owners, such as Leonard, who may not be

able to claim the benefit of the

categorical formulation (*all

economically beneficial or productive use

of land”), may still rely upon a well-

established rule that “the economic

impact of regulatory action on the

claimant and .. . the extent to which

the regulation has interfered with [her]

distinct investment-backed expectations”

are keenly relevant to takings analysis.

18

Td. 112 S.Ct. 2886, 120 L.Ed.2a at 815

n.8, citing Penn Central Transportation

Co, _v. New York City, 438 U.S. 104, 124

(1978).

B. Brimfield’

Caused Leonard to Lose The Market

Value of Two Complete Parcels in Her

Subdivision.

Leonard suffered a severe economic

penalty when the Zoning Board of Appeals

enforced the one-thousand year (1,000)

year flood. Penn Cent. Transp, 438 U.S.

at 124; McAndrews, 989 F.2d at 18.

Leonard showed that parcels 12C and 12D

are below three hundred seventy (370)

feet in elevation (R.73,75-76,175-176).

The special permit issued to Leonard

barred construction below this elevation

(R.73). Consequently, as a result of

Brimfield’s ZBA special permit

19

restriction, parcels 12C and 12D lost all

resale value as building lots.

Uncontradicted testimony from

Leonard and from a real estate expert

showed that the market value of these

four parcels (12C and 12D each further

subdivided) was at least in the range

$80,000.00 and $120,000.00 (R.122-25,83).

The appraiser suggested that the parcels’

frontage on the Quaboag River very likely

further enhanced their resale value

(R.135). When Brimfield enforced its

flood plain zone substantially above the

five hundred year flood plain, for the

first time, (R.40-42,73), Leonard lost

the entire resale value of parcels 12C

and 12D. For these reasons, the economic

impact on Leonard was severe and

satisfied the first prong in a “takings”

analysis. Penn Cent. Transp, 438 U.S. at

124; McAndrews, 989 F.2d at 18.

C. Brimfield’s Regulatory Action

: co i —hhbe

Investment Backed Expectations,

Brimfield frustrated Leonard's

"distinct investment-backed

expectations." Lucas, 112 §.ct. 2886,

120 L.Ed.2d at 815 n.8; Penn Cent,

Transp, 438 U.S. at 124; McAndrews, 989

F.2d at 18. Leonard testified that, when

she bought her land, she intended to

subdivide it and sell some lots. To this

end, she hired engineer Donald Smith to

draw a plot plan subdividing the land

into four parcels. (A.70-72). Even her

Original building permit reflected

Leonard’s subdivided four parcels (A.70-

21

72), which the Brimfield Planning Board

eventually approved, and which she

recorded on January 13, 1989. (A.24-25).

Because the special permit elevation

limitation completely destroyed resale

value of two of the subdivided lots,

Leonard’s distinct investment-backed

expectations similarly frustrated.

Lucas, 112 S.Ct. 2886, 120 L.Ed.2d at 815

n.8 (investment-backed expectations

keenly relevant to takings analysis);

Penn Cent. Transp, 438 U.S. at 124

(same); McAndrews, 989 F.2d at 18 (same).

Leonard recognizes that a takings

analysis ordinarily does not consider the

effect of a governmental restriction on

particular segments of the claimant’s

property, but on the parcel as a whole.

22

Fragopoulos v. Rent Control Bd., 408

Mass. 302, 308 (1990); Penn Cent.

Transp., 438 U.S. at 130-131. In this

case, however, Leonard’s particular

investment-backed expectation was profit

from subdividing and selling certain

parcels, which should permit treating

each of the four parcels separately.

Otherwise the “distinct investment-backed

expectations” prong of the federal

analysis becomes meaningless.

D. Brimfield Imposed its Special

To further inform a “takings”

analysis, courts should consider whether

other landowners, Similarly situated,

were permitted to continue a use denied

23

Leonard. Lucas, i112 §.Ct. 2866; -i290

L.Ed.2d at 822. Brimfield bylaws require

that persons building in a flood plain

obtain a special permit.

ZBA Chairman Koprowski testified

that other persons who built on

Dunhamtown Road, before Leonard, were

allowed to build without obtaining the

required special permit because there was

a different building inspector. The

restrictions imposed on Leonard

represented not only the first time that

the ZBA imposed the three hundred seventy

(370) foot elevation limitation, but also

was the first time that Brimfield

enforced its flood plain, at all

regardless of the proposed building

elevation.

24

That Brimfield enforced a one

thousand (1,000) year flood plain zone,

for the first time, and required a

special permit to build in this flood

Plain (at any elevation) for the first

time, is relevant to this Court’s review

of whether the action was a compensable

“taking” because other land owners who

were similarly situated (to the extent

that they built in a flood plain) were

permitted a use denied Leonard. Lucas,

112 S.Ct. 2886, 120 L.Ed.2d at 822.

Leonard recognizes that the validity

of the ZBA’s action is not at issue.

However, whether the ZBA’s action was

discriminatory, unfair, or ostensibly

“regulated” a highly unlikely event is

relevant to whether this Court should

25

deem the action a “taking” under federal

law. See Lopes v, City of Peabody, 417

Mass. 299, 301-03 (1994) (distinguishing

between an action which challenges the

validity of regulatory action, and an

action which asserts that valid

regulatory action is a “taking”). See

Also Lopes, 417 Mass. 305 12.9

(emphasizing that this Court did not say

that a regulatory taking occurred only

when property was rendered valueless),

referring to Lucas, 112 S.Ct. 2886.

According to the Supreme Judicial

Court in Lopes, regulatory action based

on an event likely to occur only once

each hundred (100) years may not warrant

the action. Lopes, 417 Mass. 306 n.12.

Here, the event anticipated by

26

regulation, presumably will occur

approximately once every one thousand

(1,000) years and, for this reason,

further supports the conclusion that

Brimfield’s action should be deemed a

“taking” because it was discriminatory

and was based on the occurrence of a

highly unlikely event. ic.: Igicas, 112

S.Ct. 2886, 120 L.Ed.2d at 822.

Considered in perspective, Brimfield

may wait five times the age of the United

States before the Quaboag River will rise

to a level of three hundred seventy (370)

feet. The river has presumably has risen

to this level only twice since the time

of Christ. For these reasons, Brimfield’s

regulatory action should be deemed a

taking.

27

hy me The Questions Presented Are

Important.

Because the government has the right

to interfere with or to take private

property, its continued obligation to pay

for such property is important to citizen

owners’ due process rights. See First

English Evangelical Lutheran Church of

Glendale v. County of Los Angeles

California, 482 U.S. 304, 314 (1987). The

right to just compensation is grounded in

the Constitution itself. Jacobs v. United

States, 290 U.S. 13, 16 (1933).

There is a tension between a

citizen’s right not to be deprived of

private property without due process and

the government’s land-use planning

function. Although a taking is plain when

28

there is exercise of eminent domain,

whether a land regulation becomes a

taking is less clear. Consequently,

Massachusetts has misapplied Lucas v.

South Carolina Coastal Council, 505 U.S.

1003 (1992), ignored Nollan v. California

Coastal Comm'n, 483 U.S. 825 (1987) and

permitted Brimfield to take Leonard’s

property without paying for it. In so

doing, Massachusetts engaged in a

“taking”, and the Supreme Judicial Court

engaged in a “takings clause” analysis in

conflict with Michigan’s analysis.

Because governments will and must

continue to regulate land use, this issue

will continue to arise. Therefore, the

question presented is ripe. This Court

should resolve the conflict between the

29

states and give further guidance on how

to analyze correctly an alleged

regulatory taking.

CONCLUSION

The petition for writ of certiorari

should be granted.

Respectfully Submitted

Greg T. Schubert

Counsel of Record

Market Place

1365 Main Street

Springfield, MA 01103

(413) 746-1313

Attorney for Mary Leonard

30

APPENDIX A

MARY E. LEONARD vs. TOWN OF BRIMFIELD ¢&

another.1

SJC-07008

423 Mass. 152, 666 N.E.24 1300

March 5, 1996, Argued

July 11, 1996, Decided

PRIOR HISTORY: Hampden. Civil action

commenced in the Superior Court

Department on July 9, 1987. Motions to

amend and to dismiss were heard by

William H. Welch, J., and the case was

heard by John F. Murphy, Jr., J. The

Supreme Judicial Court on its own

initiative transferred the case from the

Appeals Court.

DISPOSITION: Judgment Affirmed

COUNSEL: Greg T. Schubert for the

Plaintiff.

William Hewig, III, for the Defendants.

JUDGES: Present: Liacos, C.J., Wilkins,

1 Cynthia K. Powers, individually and

as chairperson of the Brimfield conservation

commission.

Al

Abrams, Lynch, & Greaney, JJ.

OPINION: LYNCH, J.

The plaintiff owns sixteen acres of

land in the town of Brimfield (town).

This action, commenced in 1987, is one of

three filed by the plaintiff involving

this property contesting actions by the

town which effectively limit the

plaintiff's use of this land. The

plaintiff alleges that the town is

artificially channeling surface water

onto the property and is improperly

enforcing a flood plain zone which

restricts development of the property.

As required by the town zoning-by-

law, the plaintiff applied to the zoning

board of appeals (board) for a special

permit to building on her land as it was

A2

located in an area designated as a flood

plain zone. The board issued a special

permit which limited construction on land

at or above the 370-foot elevation mark.

This effectively limits construction to

approximately six of the Plaintiff's

sixteen acres.

In the first action the plaintiff

appealed from the board's special permit

restriction as arbitrary or capricious.

A Superior Court judge upheld the board’s

decision, and the Appeals Court affirmed.

27 Mass. App. Ct. 1408 (1989). We denied

further appellate review. 405 Mass. 1204

(1989).

The second action involved water

channeling claims and was settled by a

released dated October 28, 1988. In that

A3

i

release, the plaintiff discharged the

town and the town’s insurer from ail

water channeling claims to the date

including the channeling claims in the

present case.

In this action the plaintiff alleges

that: (1) the town is liable for damages

for artificially channeling surface water

onto her property (counts one and two);

(2) the town’s enforcement of its flood

plain restriction constituted a

compensable taking under the United

States Constitution (count three); and

(3) the plaintiff's civil rights had been

violated by the chairperson of the

Brimfield conservation commission and she

was entitled to damages under G.L. c. 12,

A4

§ 11I (1994 ed.) (count four) .?

The defendants moved to dismiss

counts one, two, and three of the

complaint arguing that the water

channeling release of October 28, 1988,

barred those claims. The plaintiff

countered by filing a motion to amend

with alternative amended complaints. In

the first amended complaint, she sought

to limit her water channeling claim to

damages incurred after the date of the

release. In the second amended

complaint, she alleged that the

enforcement by the town of the flood

plain restriction constituted a

compensable taking under State law.

2 There was no appeal from the denial

of that claim.

- As

The motion judge denied the motion

to amend, and allowed the defendants’

motion to dismiss counts one and two,

treating it as a motion for summary

judgment. ome

A bench trial was held on counts

three and four of the present action.

The judge found for the defendants on

both counts and dismissed the plaintiff’s

claims for damages. We transferred the

case here on our own motion. The

plaintiff argues that the judge applied

the wrong standard to decide whether the

enforcement of -the flood plain

restriction was a compensable “taking”

under Federal law. She also argues that

the motion judge erred in denying her

motion to amend the complaint.

A6

The validity of -the board’s

enforcement of this zoning by-law has

been adjudicated. Therefore, we do not

consider issues settled in previous

litigation as to the actual likelihood of

flooding at the various elevations, nor

the validity of the special permit as

applied to the plaintiff’s land. The only

issues before use are whether the

plaintiff should be compensated by the

town for the decrease in value of her

land caused by the restriction and

whether she should have been permitted to

amend her complaint.

The regulatory “taking” issue. The

plaintiff argues that the town’s actions

constitute a taking under the Fifth

Amendment to the United States

A7

Constitution.

When a regulatory taking involves

neither a physical invasion nor a

complete deprivation of use, as in the

case here, Federal law has established

several interrelated factors which are to

be considered in determining whether a

compensable taking has occurred; “(1)

‘the economic impact of the regulation on

the claimant’; (2) ‘the extent to which

the regulation has interfered with

distinct investment-backed expectations’;

and (3) ‘the character of the

governmental action.’” Connelly v.

Pension Benefit Guar. Corp.,, 475 U.S.

211, 225, 89 L. Ed... 2D 166, 106 §&. Ct.

1018 (1986), quoting Penn Cent. Transp.

Co. v. New York City, 438 U.S. 104, 124,

A 8

397 L.Ed. 2D 631, 98 S. Ct. 2646 (1978).

(1) Investment-backed expectations.

The plaintiff contends that, at the time

of purchase, she intended to subdivide

the sixteen acres and because of the

special permit restriction, she lost the

market value of two parcels in her

subdivision.

A property owner’s investment-backed

expectations must be reasonable and

predicated on existing conditions.

Buckelshaus v. Monsanto Co., 467 U.S.

986, 1005, 81 L. Ed. 2D 815, 104 Ss. ct.

2862 (1984. It must be more than a

“unilateral expectation or an abstract

need." Id., quoting Webb's Fabulous

Pharmacies, Inc, v. Beckwith, 449 U.S.

155, 161, 66 L. Ed. 2D 358, 101 s. Ct.

A9

446 (1980). The plaintiff's argument

fails because she could not have had a

reasonable, investment-backed expectation

that she would have been permitted to

subdivide the flood plain property.

Her property was within a designated

flood plain zone and a special permit was

required for construction on the lots in

question.? A the time she purchased the

property she had constructive notice of a

zoning map, which was available for

viewing at the building inspector’s

office. Her position that the flood plain

3 We have held that a purchaser of

land subject to a restriction at the time of

purchase has a right to challenge the continued

application of the restriction. Lopes y.

Peabody, 417 Mass. 299 303, 629 N.E.2d 1312

(1994). Here, the plaintiff availed herself of

her right to contest the special permit

restriction, but did not prevail.

A10

map should have been recorded with the

registry of deeds is without merit. The

statute which sets forth the requirements

of municipal zoning regulations contains

no such requirement, see e.g., G.L. c.

40A (1994 ed), and she offers no citation

to support this argument.

Because she purchased the property

subject to the restriction on building in

a flood plain, she may not complain about

the loss of a right she never acquired.

see Lucas v. South Carolina Costal

Council, 505 U.S. 1003, 1027, 120 L. Ea.

2D 798, 112 S. Ct. 2886 (1992). “The

government is not required to compensate

an individual for denying him the right

to use that which he has never owned.”

Fragopoulos v. Rent Control Bd. of

All

Cambridge, 383 Mass. 152, 160, 418 N.E.2d

335 (1981).

Furthermore, the trial judge found

that the parcel at issue is a single

sixteen-acre parcel, not individual lots

within this parcel as the plaintiff

contends, and that the plaintiff had

taken no action to subdivide the

property. This finding is completely

supported by the record. Mass. R. Civ. P.

52 (a), 365 Mass. 816 (1974). Kendall _v.

Selvaggio, 413 Mass. 619, 620, 602 N.E.2d

206 (1992). The plaintiff did not have a

reasonable investment-backed expectation

that she could subdivide the property.

(2) Economic Impact. The plaintiff’s

theory of economic impact on the property

was also made without considering the

A 12

existing zoning restrictions.

Even if we ignore the fact that the

zoning restriction was in place prior to

the plaintiff’s purchase of the property,

the evidence was insufficient to show

that the economic impact was severe. The

plaintiff's economic loss argument is

based on her inability to build houses on

approximately ten acres of her sixteen-

acre parcel. This has not frustrated her

purpose to build her own home on the

parcel which she has done. There is no

dispute that the complete sixteen acres

is Suitable for agricultural,

horticultural, and recreational purposes.

The land was used for agricultural

purposes prior to her purchase and can

continue to be used as such. As stated by

A 13

the United States Supreme Court: “Zoning

laws are, of course the classic example

{of land use regulations] which have been

viewed as permissible governmental action

even when prohibiting the most beneficial

use of the property” (citations omitted.)

Penn Cent. Transp. Co. v. New York City,

Supra at 125.

(3) The character of the

governmental action. The final factor

that may be considered is the character

of the governmental action. “A ‘taking’

may more readily be found when the

interference with property can be

characterized as a physical invasion by

government.” Id. at 124. Here, there was

no physical invasion of the plaintiff's

property alleged apart from the water

Al4

channeling claims. Those claims are

barred by the release given in connection

with her prior litigation.‘ Her takings

claim is based on the zoning restriction

and special permit process which is not a

physical invasion by the government.

Thus, in view of the facts before

us, the effect of the zoning and special

permit restriction on the plaintiff’s

land does not constitute a compensable

taking under federal law.

(4) Disallowance of motions to

amend. The plaintiff also argues that she

should have been permitted to amend her

complaint to include claims based on

4 The release states in pertinent

part: “This release excludes cases # 87-1238

(the instant case] except as to water

(channeling) claims.’

A15

water channeling that occurred after

October 28, 1988, and, in the

alternative, a claim for damages under

State law for the devaluation of her

property caused by the zoning

restriction. Under the rules of civil

procedure, leave to amend a complaint

shall be “freely given when justice so

requires.” Mass. R. Civ. PP. 15(a), 365

Mass. 761 (1974). The decision to grant

such a motion lies within the discretion

of the judge, but leave should be granted

unless there are good reasons for denying

the motion. Mathis v. Massachusetts Elec.

Co., 409 Mass. 256, 264, 565 N.E.2d 1180

(1991).

The judge denied the motion to amend

for the following reasons: (1) the motion

A16

—————— —_ —————————

Se a ee ee

to amend was filed more than five years

after the plaintiff filed the original

complaint; (2) the case had been called

as an “inventory case,” thus the judge

believed that the trial was imminent; (3)

the claims were interrelated with the

Claims that had been adjudicated or

settled in prior proceedings.

In these circumstances it was not an

abuse of discretion for the judge to deny

the motions to amend. We have considered

undue delay, imminence of trial, as well

as futility of the claim to be valid

reasons for the denial of a motion to

amend. See All Seasons Servs., Inc, v.

pa € Healt) ' of E

416 Mass. 269, 272, 620 N.E.2d 778

(1993); Mathis v. Massachusetts Elec.

Al7

Co., Supra, at 265-265; Castelluci-v.

United States Fidelity & Guar. Co., 372

Mass. 288, 292, 361 N.E.2d 1264 (1977).

Although the case was not actually

tried for seventeen months after the

denial of the motion to amend, the case

had been pending for over five years and

the judge believed the trial was

imminent. Those facts alone provided a

sufficient basis for the judge’s action.

The plaintiff's motion to amend was

properly denied.

Judgment Affirmed.

APPENDIX B

MARY E. LEONARD vs. TOWN OF BRIMFIELD &

another.>

Superior Court Civil Action No.

87-1238H

FINDINGS, RULINGS AND ORDER

The plaintiff filed this action in

the Hampden County Superior Court, C.A.

No. 87-1238 on July 17, 1987. On July 31,

1992, Superior Court (Welch, J.)

dismissed Counts I. And II of the

plaintiff’s Complaint (relating to

allegations of water damage) as based on

claims which were the subject of an

earlier release. That left for the trial

Count III (claim for compensable taking

5 Cynthia K. Powers, individually and

as chairperson of the Brimfield conservation

commission.

A19

under the fifth amendment of the United

States Constitution, and through the due

process clause of the fourteenth

amendment, alleging an unconstitutional

taking of the 10 acres of property below

the 370-foot-elevation level, (upon which

the plaintiff cannot build a house), and

Court IV (violations of M.G.L. c. 12,

§11I, alleging a “joint venture” by the

defendants Cynthia Powers and members of

the Conservation Commission to have a

building permit issued by Building

Inspector Jack Keough revoked through

coercion, intimidation and threats).

Based upon all of the credible

evidence, the exhibits and the reasonable

inferences to be drawn therefrom, I find

and rule as follows:

A20

1. The plaintiff, Mary E. Leonard,

was at the time of the filing of this

suit the owner of 16 acres of land lying

between the Quaboag River and Dunhamtown

Road in Brimfield, Massachusetts. The

area was and is zoned Flood Plain under

Brimfield’s zoning bylaws.

On March 30, 1987, Jack Keough,

Brimfield’s Building Inspector, issued

building permit no. 8726 upon request of

the plaintiff, for construction of a

Single-family house upon so-called “lot

12B” of the Leonard property. On or about

April 1, 1987, Mr. Keough had a

conversation with Cynthia Powers, of

Brimfield’s Conservation Commission. In

that conversation, Ms. Powers told Mr.-

Keough that lot 12 (which as then the

A21

designation for the entire 16 acres) was

in a wetland and required a special

permit from the Board of Appeals.

Following that conversation, Mr. Keough

checked the Town’s zoning maps and

determined that Lot 12 was within the

Town’s flood plain zone, and therefore,

under the Town’s zoning bylaws,

construction required a special permit.

As a result of his own research, Mr.

Keough then proceeded to revoke the March

30th building permit on April 2, 1987.

The plaintiff Mary Leonard then

filed a request for a special permit with

the Board of Appeals on or about April

13, 1987. By a decision dated June 2,

1987, the Board of Appeals granted the

request for a special permit but limited

A 22

construction to land at or above the 370-

foot-elevation mark. Approximately 6 our

of the total 16 acres are situated above

the 370-foot-elevation mark. The

plaintiff then appealed the Board of

Appeals’ June 2 1987 decision as

arbitrary and capricious to the Superior

Court. Her case was captioned “Mary E.

Leonard v. Zoning Board of Appeals of

Brimfield” and assigned Hampden Superior

C.A. No. 87-1077. After trial the

Superior Court (Welch, J.) upheld the

June 2, 1987 decision in his Findings,

Rulings and Order for Judgment dated

October 19, 1987. The Plaintiff appealed

to the Massachusetts Appeals court, which

affirmed the judgment of the Superior

Court on April 27, 1989, 27 Mass. App.

A23

Ct. 1405 (1989). The Supreme Judicial

Court denied further appellate review on

August 17, 1989, 405 Mass. 1204 (1989).

Following the exhaustion of her appeals,

the plaintiff then proceeded to

construction her house on the 6 acres of

her parcel located above the 370-foot-

elevation mark.

2. At the time of the issuance of

the original building permit, (March 20,

1987), and also at the time of filing of

this lawsuit, (July 17, 1987) the subject

property was a single 16-acre lot and the

plaintiff had taken no action to

subdivide her property. Approximately

one year after she filed this action, an

Approval Not Required (“ANR”) subdivision

plan was filed with the Brimfield

A 24

Planning Board. This plan was not

recorded until January 13, 1989 (Book

263, Page 33 of the Hampden County

Registry of Deed) .§

Under the terms of the special

permit, 6 acres of the 16 acre parcel was

available for building construction. A

portion of this 6 acres was used by

Plaintiff to construct her own home.

A previous owner of the property had

registered the property under G.L. c. 61A

as agricultural land. The Plaintiff's

predecessor in title had purchased the

property subject to the agricultural lien

6 This plan indicates it was prepared

for “Gregory Schubert’ in March of 1987. It was

submitted to the Planning Board July 20, 1988,

and was not recorded until January 13, 1989.

Plaintiff’s name does not appear on the plan.

(Exhibit #4).

A 25

with the intention of operating a nursery

on the property (pg. 12, transcript

deposition Brian Haley). When plaintiff

purchased the property the lien was

removed as was the agricultural

designation. ’ There is no dispute that

the complete 16 acres is suitable for

agricultural, horticultural and or

recreational purposes. ,

RULINGS

3. Plaintiff seeks damages, alleging

a constructive taking of two building

lots shown as lots 12C and 12D on the

Schubert plan of land (Exhibit #4). The

plaintiff refers to Lucas v. South

7 At attempt was made by members of

the Conservation Commission to have the town

exercise its right of first refusal and purchase

the property. The town’s financial problems

prevented the exercise of this right.

A 26

Carolina Coastal Council, 112 S. Ct. 2886

(1992). The plaintiff’s reliance on

Lucas is misplaced. The Lucas case dealt

with a situation where after the

plaintiff purchases the beach front

property the state declared the property

to be within the “critical area’, thereby

depriving the owner of all beneficial

economic use of his property. That is

not the case at bar. In the case at bar

the Flood Plain Zoning Maps. and

requirements for a special permit were in

effect at the time plaintiff purchased

the land.

Nor did the regulatory action

deprive plaintiff of all beneficial use

of her property. Turnpike Realty Company,

inc. v. Dedham, 362 Mass. 721 (1972);

A 27

also Lovequist v. Conservation Commission

of Dennis, 379 Mass. 7 (1979).

Unconstitutional takings are those

actions which “strip private property of

all practical value to them or to anyone

acquiring it, leaving them only with the

burden of paying taxes on it.” Lovequist

id., at 20. In the case at bar the

plaintiff cannot fairly claim that she

has been deprived of all beneficial use

of her property.

4. The evidence at trial is

undisputed that the actions of the

Brimfield’s Zoning Board of Appeals, and

Brimfield’s building inspector Jack

Keough in enforcing Brimfield’s bylaws

were at all times in compliance with the

Town’s bylaws, and General Laws Chapter

A 28

a a Ee

40A.

There is no credible evidence the

Cynthia Powers either individually or as

chairperson of the Conservation

Commission pursued a coarse of opposition

to plaintiff or of plaintiff's right

secured by the constitution or laws of

the Commonwealth. Nor is there any

credible evidence that she sought a

selective enforcement of the flood plain

zone. The actions attributable to Cynthia

Powers fall far short of proof of acts

intended to *. .. Frighten, harass, or

humiliate by actual use of threats,

intimidation or coercion” required to

prevail under G.L. c. 12, § 11I. Silva v.

oe ; =

et al., 35 mass. App. Ct. 451 (1993).

A 29

ORDER

Count III - Plaintiff’‘s claim for

damages against the Town of Brimfield is

dismissed. Judgment for defendant Town of

Brimfield.

Count IV - Plaintiff's claim for

Violation of M.G.L. c. 12, §11I is

Gismissed. Judgment for the defendant

Cynthia K. Powers individually and as

Chairperson of the Brimfield Conservation

Commission.

John F. Murphy, Jr.,

Justice of the Superior Court

Entered: April 13, 1994

a30

APPENDIX C

K & K CONSTRUCTION, INC. J.F.K COMPANY,

AND RESORTS AND COMPANY, vs. DEPARTMENT

OF NATURAL RESOURCES AND MICHIGAN

ASSOCIATION OF HOME BUILDERS.

No. 168393

June 4, 1996, Published “

JUDGES: Jansen, P.J., and Taylor and J.P.

Noecker. JJ.

OPINION by: JANSEN, P.J.

This is a regulatory taking case.

Defendant Department of Natural Resources

Appeals as of right from a September 8,

1993, judgment of the Court of Claims in

plaintiff's favor. The Court of Claims

determined that a taking had occurred as

a result of defendant’s decision to deny

plaintiff’s application for a permit to

build a restaurant on a parcel of land on

the basis that the land was protected

A3l

wetlands. The Court of Claims awarded

$3,245,256 for the property taken, plus

interest of $1,574,522.60, and $459,400

based on a temporary taking of part of

the land. We affirm.

I.

Plaintiffs own approximately 82

acres of property in Waterford Township

in Oakland County. The property was

acquired in 1976 by Joseph and Elain

Kosik. J.F.K. Company is a Michigan

limited partnership consisting of the

five children of the Kosiks. J.F.K.

Company is a part owner of the property

throvgh a quit claim deed executed by the

Kosiks. K & K Construction is a Michigan

corporation, of which Joseph Kosik and

one of his sons are the sole

A32

wm CAN

shareholders. K & K Construction has no

ownership interest in the property

involved in this case. Resorts and

Company is a Michigan co-partnership and

is a part owner of the 82 acres of

property.

The Court of Claims concluded that

the property consisted of four distinct

parcels. The parcel at issue was parcel 1

on which J.F.K. Company wished to build a

C.J. Barrymore’s Restaurant. Parcel 1

covered approximately 55 acres of the

total property. On May 28, 1988,

plaintiffs applied for a permit to

develop this property. On November 7,

1988, defendant denied the permit based

on a determination that approximately 28

acres of the property was protected

A 33

wetlands under the Wetland Protection Act

(WPA), M.C.L. 281.701 et seq.: M.S.A.

18.595 (51) et seq.

Plaintiffs then filed the present

action on December 29, 1988, in the Court

of Claims. Plaintiffs initially sought a

Geclaratory ruling that the area is not

wetlands, and injunctive relief against

defendant from enforcing the WPA and

seeking damages under the WPA. Plaintiffs

sought a determination that defendant's

actions constituted a taking of their

property for which they were entitled to

just compensation. On May 1, 1990,

plaintiffs submitted a second application

for a permit to fill approximately 3.17

acres of wetlands and to convert 5.26

acres of upland to wetlands. This plan

A 34

DOR AMAR NR ni ci i a nce

was known as the “Goga Plan” and involved

a total of over 72 acres of property on

parcels 1, 2, and 4. This second

application was also denied on July 26,

1990.

Trial was held before the Court of

Claims, sitting as the factfinder, on

December 17, 1991. The only issue before

the court was whether there was a taking

because of the permit denial such that

plaintiffs were entitled to just

compensation. On November 2, 1992, the

Court of Claims issued its opinion and

order determining that a taking occurred

because the wetlands restrictions

rendered the property essentially

worthless as commercial real estate, and

that plaintiffs were therefore entitled

a 35

to just compensation. After various post-

judgment motions, and consideration of

the Goga Plan, the Court of Claims

awarded a total of $3,279,178 in favor of

plaintiffs.

ES

Plaintiff contend that defendant’s

action of denying the permit to fill the

wetlands constitute an unconstitutional

taking of property without just

compensation. The Fifth Amendment to the

federal Constitution provides: “nor shall

private property be taken for public use,

without just compensation.” Similarly,

the Michigan Constitution provides:

“Private property shall not be taken for

public use without just compensation

therefor being first made or secured ina

A36

manner prescribed by law.” Const. 1963,

art. 10, § 2. The Takings Clause of the

Fifth Amendment has been made applicable

to the states through the Fourteenth

Amendment . Dolan v. City of Tigard, 512

U.S.wmu|; 114 S. Ct. 2309; 129 L. Ed. 304,

315 (1994; Peterman v. Dep't of Natural

Resources, 446 Mich. 177, 184 n.10; 521

N.E.2d 499 (1994).

A.

Property may only be taken when

there exists an essential nexus between a

legitimate state interest and the taking.

If the nexus exists, then there must be a

“rough proportionality” between the

manner of the taking and the actual state

interest involved. Dolan, supra. p. 317;

Peterman, supra, p. 201. The parties do

A37

not question that the state has a

legitimate interest in preserving and

protecting wetlands. See Attorney General

ex rel Dep't of Natural Resources v.

Huron Co. Road Comm’n, 212 Mich. Ap. 510,

516; 538 N.W.2d 68 (1995) )"[(t]he primary

purpose of the WPA is to ensure that

wetland habitats are preserved and

protected”). See Harkins v. Denp’t of

Natural Resources, 206 Mich. App. 317,

324; 520 N.W.2d 653 (1994) (“the WPA

unquestionably advances a legitimate

state interest”). Thus, the crucial issue

with which we are faced is whether there

is a taking within the meaning of the

Fifth Amendment to require just

compensation.

The United States Supreme Court has

A38

explained that the Fifth Amendment is

violated when land use regulation does

not substantially advance legitimate

states interests or denies an owner

economically viable use of the owmner’s

land. Lucas _v. South Carolina Coastal

Council, 505 U.S. 1003; 112 S. Ct. 2886;

120 L. Ed. 2D 798, 813 (1992. In land use

regulation cases, such as this, it has

been recognized that when property may be

regulated to a certain extent, if the

regulation goes to far it will be

recognized as a taking. Id., p. 812;

Yolkema_v. Dep’t of Natural Resources,

214 Mich. App. 66, 69; 542 N.W.2d 282

(1995). The Supreme Court has not set

forth any set formula regarding what

constitutes going “too far,” but has

A39

rather engaged in ad hoc, factual

inquires. Lucas, supra, p. 812.

However, there are two distinct

categories of regulatory action that

require compensation without case-

specific inquiry. The first category

encompasses regulation that compel the

property owner to suffer a physical

invasion of the property. The second

category is where regulation denies all

economically beneficial or productive use

of the land. Id., pp. 812-13. The Court

of Claims concluded that application of

the WPA denied plaintiffs all

economically beneficial or productive use

of the land.

The United States Supreme Court has

noted that “affirmatively supporting a

A 40

MA AA AE SAT SAAN a Seo

compensation requirement ii es Se

regulations that leave the owner of land

without economically beneficial or

productive options for its use-typically

by requiring land to be left

substantially in its natural state.” Id.

p. 814. In Lucas, the court held that

where the state seeks to sustain

regulation that deprives property of all

economically beneficial use, the state

may resist compensation only if an

inquiry into the nature of the owner’s

property shows that the proscribed use

interest were not part of the title to

begin with. i. . i. Bees... cean« @

regulation that prohibits all

economically beneficial use of land

cannot be newly legislated or decreed

A4l

without compensation, but must inhere in

the title itself, with the restriction

that background principles of state

property law may already place on land

ownership. Id. p. 821.

In che case before us, we reject

defendant’s claim that the permit denial

was based on a fundamental principle of

Michigan property law. Defendant claims

that such a principle is found in our

state Constitution:

The conservation and

development of the natural

resources of the state are

hereby declared to be of

paramount public concern in

the interest of health, safety

and general welfare of the

people. The legislature shall

provide for the protection of

the air, water and other

natural resources of the state

from pollution, impairment and

destruction. [Const. 1963,

ene. @, 3: Bands

A42

In Lucas, the Supreme court made

clear that the state must do more than

proffer the legislatures declaration that

the uses the landowner desires are

inconsistent with the public interest.

Rather, the state must identify

background principles of nuisance and

property that prohibit the uses of the

landowner intends in the circumstances in

which the property is found. Lucas,

Supra, pp. 822-23.

The constitutional provision cited

above is not a principle of nuisance and

property law. The decision to build a

restaurant on land, or a request to fill

in wetland, do not constitute nuisances

that the government may abate. See Id. ,

p. 821; Miller Pros v. Dep’t of Natural

aA 43

Resources, 203 Mich. App. Ct. 674, 682;

513 N.W.2d 217 91994). We are not aware

of any common law preventing the building

of a restaurant on plaintiff's land.

Thus, the generalized invocation of

public interests in the state

Constitution, and the legislatures’s

declaration in the WPA and the Michigan

Environmental Protection Act. M.C.L.

691.1201 et. Seq.; MSA 14.528(201) et

seq., do not constitute background

principles if nuisance and property law

sufficient to prohibit the use of

plaintiffs’ land without just

compensation.

B.

Defendant also contends that because

the regulation, the WPA, was enacted

A 44

before the quit claim deed passed title

to J.F.K. Company, plaintiffs are

precluded from compensation. We do not

agree that the timing of the regulation

and ownership would act to preclude just

compensation where it would otherwise be

due. See Nollan v. California Coastal

Comm'n, 483 U.S. 825, 833 n.2; 107 S. Ct.

3141; 97 L. Ed. 2D 677 (1987) (The

landowner’s rights were not altered

because they acquired the land well after

the commission had begun to implement its

policy. So long as ti.e commission could

not have deprived the prior owners of the

easement without compensation, the prior

owners must be understood to have

transferred their full property rights in

conveying the lot.).

A 45

In this case, the property was

acquired by Joseph and Elaine Kosik in

1976. They transferred the property

through a quit claim deed to J.F.K.

Company in 1986. The WPA went into effect

in 190. The passage of the WPA cannot be

understood as depriving J.F.K Company of

just compensation merely because the WPA

as in effect when the quit claim deed was

executed. Because we have concluded that

the proscribed use interest in this case

do not inhere in the title itself, the

timing of the regulation and the transfer

of the land do not dictate that

plaintiffs are not entitled to just

compensation. Lucas, supra, pp. 820-23.

c.

Next, in order to determine if

A 46

plaintiffs were deprived of all

economically beneficial or productive use

of their land, we must decide what

specific property was affected by the

permit denial. It is defendant’s

contention that the Court of Claims

should have considered all 82 acres of

the property in determining whether a

taking occurred in this case. At trial,

plaintiffs argued that the Court of

Claims should only consider the 28 acres

that were declared to be wetlands. The

Court of Claims. rejected both contentions

and found that it would consider the 55

acres designated as parcel 1. On appeal,

plaintiffs urge use to affirm the Court

of Claims’ ruling. We find that the Court

of Claims’ factual finding is this regard

A 47

is not clearly erroneous. MCR 2.613(c).

A proper resolution of this issue is

not subject to any clear rule. In Bevin

v. Brandon Twp. 438 Mich. 385, 393; 475

N.W.2d 37 (1991), modified 439 Mich. 1202

(1991, our Supreme Court held that

generally , a person’s property should be

considered as a whole when deciding

whether a regularity taking has occurred.

In Bevin, however, the property in

question consisted of two contiguous

parcels under the same ownership and

subject to a single zoning scheme. In the

case before us, parcel 1 is zoned for

commercial use, while parcel 2, 3, and 4

are zoned for residential use. Further,

there is no single owner of all four

parcels. Parcel I is owned in part by

A48

J.F.K. Company, and parcels 2 and 4 are

owned solely by J.F.K. Company. Parcel 3

is owned by both J. F.K. Company and

Resorts and Company. Finally, the

regulation is this case does not affect

all four parcels. Only parcel 1 is

affected by the WPA.

More recently, this Court relied on

Loveladies Harbor, Inc. V. United States,

28 F.2d 1171 (CA Fed. 1994) in analyzing

a similar issue. See Volkema., supra, pp.

71-72. In Loveladies Harbor, the

plaintiffs originally owned 2%vU acres of

land which and been acquired in 1958. By

1972, 199 acres of the land had been

developed, before the enactment of § 404

of the Clean Water Act. The plaintiffs

sought a fill permit to develop the

A49

remaining 51 acres for residential use.

The permit was initially denied, but the

state eventually entered into an

agreement whereby the plaintiffs could

develop 12.5 acres of the land. However,

the plaintiffs also had to seek permit

approval from the Army Corps of

Engineers. The Corps ultimately denied

the permit.

The court in Loveladies Harbor had

to determine the “denominator parcel” in

order to determine whether a talking had

occurred. The court rejected any

brightline rule and instead adopted a

flexible approach to account for factual

muances of each individual case.

Loveladies Harbor, supra. p.1181. This

approach was also recently adopted by

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this Court in Yolkema., supra, p. 73. The

court in loveladies Harbor, found that

the 199 acres that had been developed

before enactment of § 404 of the Clean

Water Act should not be considered as

part of the denominator because no effort

had been made by the state to regulate

that land. With regard to the remaining

51 acres, the court found that the 38.5

acres had been essentially given to the

state in exchange for the permit to

develop the remaining 12.5 acres. The

court refused to include the 38.5 acres

as part of the denominator because that

land had no value to the plaintiffs.

Thus, the court concluded that only 12.5

acres would be considered as the

denominator, and that because the value

A5l

was de minimus, the owner was deprived of

all economically feasible use of the

property and was entitled to just

compensation. Loveladies Harbor, supra,

pp. 1181-1182.

In Volkema, the Court employed the

same “factual nuances” analysis, but

reached a different conclusion. The

plaintiffs in YVolkema, bought 45 acres of

commercial property in 1963 and a

contiguous five-acre parcel in 1979. The

plaintiffs developed the property and

were left with 24.6 acres at the time of

the litigation. The plaintiffs sought a

permit to fill 4.3 acres of wetlands, but

that permit was denied. The plaintiffs

sought compensation for the six acres

they claimed were rendered useless

A 52

because of the denial of this fill

permit.

This Court held that it would not

include the entire 45 acres as the

denominator because approximately half of

that land was developed before enactment

of the WPA. However, this Court held that

it would consider the remaining 24.6

acres as the denominator, rather than the

six acres as urged by the plaintiffs. In

Volkema, the entire 24.6 acres was of

high value to the plaintiffs, and the

land, when viewed as a whole, continued

to have substantial value because it

could still be developed for commercial

purposes. Thus, this Court concluded that

the plaintiffs had suffered no taking

where a majority of the land could be

A>3

developed for commercial purposes.

Volkema, supra. p.74.

In the present case, the Court of

Claims properly considered only the 55

acres of parcel 1. Parcels 2, 3, and 4

are zoned for residential purposes, while

parcel 1 is zoned for commercial uses.

Parcel 3 was developed before plaintiffs

first applied for the permit. Parcels 2

and 4 are not developed. Because of the

differences in zonimg of the four parcels

and the differences in ownership, we

conclude that the Court of Claims’

factual finding that the 55 acres should

be considered as the denominator is not

clearly erroneous.

D.

Defendant next contends, however,

aA 54

that even in light of the regulation,

there was no taking because the property

retained significant value. The Court of

Claims found that parcel 1, as regulated

by the permit denial, was essentially

worthless as commercial real estate. This

factual finding is not clearly erroneous

based on the evidence presented at trial.

The Court of Claims credited the

testimony of plaintiffs’ experts who

concluded that the property was

essentially worthless. The Court of

Claims discounted the conclusion of the

defendant's expert that the edges of the

parcel could still be developed, because

that conclusion was refuted by

plaintiffs’ experts. We note that the 28

acres of wetlands is irregularly shaped

A 95

within the 55-acre parcel. Thus, it is

not possible to simply leave the wetlands

area undeveloped and build on the

remaining 27 acres. If the 28 acres of

wetlands was not developed, the only area

that could be feasibly developed would be

the edges of the area of parcel 1. This

was apparently not economically feasible

because of the land needs for a

restaurant, including parking lots. Thus,

this case is unlike Volkema because there

the plaintiffs could still use the

remaining 18 acres of the 24 acres of

property. Here, the plaintiffs could not

develop the remaining 27 acres because of

the configuration of the wetlands within

the parcel.

Accordingly, the Court of Claims did

A 56

not err in concluding that the regulation

in this case denied the owners of all

economically beneficial or productive use

of the land. Thus, a taking occurred

within the meaning of the Fifth Amendment

and plaintiffs were entitled to just

compensation for the 55 acres of land

affected by the regulation.

bbb

Defendant next argues that the Court

of Claims erred in rejecting its option

to cure the taking by permitting

implementation of the “Goga Plan.”

Plaintiffs first submitted an

application on May 28, 1988 regarding

development of parcel 1. On November 7,

1988, defendant denied a permit to

develop the property because 28 acres of

A 57

the parcel was determined to be protected

wetlands. Plaintiffs then filed their

complaint on December 29, 1988.

Thereafter, William Goga, a civil

engineer retained by plaintiffs,

developed a mitigation plan. He proposed

that some wetlands be filled in parcel 1,

but that wetlands could be created in the

parcel out of non-wetland area. This plan

was submitted cto defendant in April 1990.

Defendant rejected this plan after its

submission and denied a permit

application based on Goga’s plan in July

1990.

Trial in this matter was held on

December 17, 1991. On November 5, 1992,

the Court of Claims issued its opinion

and order finding that a taking had

A 58

occurred because plaintiffs were denied

all economically beneficial or productive

use of the land because of the permit

denial. It was not until after this

determination that defendant agreed to

accept the Goga Plan. The Court of Claims

issued a second opinion and order, dated

May 4, 1993, which mainly dealt with

various compensation issues. The Court of

Claims specifically found that defendant

was entitled to accept the Goga Plan

pursuant to MCL 281.721(3)(c); MSA

18.595(71) (3) (ce). This provision

specifically allows defendant to modify

its action so as to minimize the

detrimental effect to the property’s

value after the court determined that

defendant's action constituted a taking.

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The Court of Claims found to objection to

this approach. The Court of Claims then

stated that those portions of the

property defined as being part of the

Goga Plan may be exempted from the

taking, while those portions that were to

be transformed into wetlands would be

considered to be condemned.

In considering what constituted just

compensation, the Court of Claims ruled

that plaintiffs would be awarded interest

and fair market value of the portion of

land actually condemned. The court

specifically did not include that portion

of the land that could still be

commercially developed under the Goga

Plan. Thus, defendant’s characterization

of the Court of Claims action as being a

a0

rejection of defendant’s decision to

accept the Goga Plan is not supported in

the record.

pantie; we cannot agree with

defendant’s contention that its decision

to offer a permit for the Goga Plan

eliminates the taking. The Court of

Claims found, and we agree, that there

was an unconstitutional taking in this

case due to the regulation of the

wetlands area. It was not until after a

finding by the Court of Claims that

defendant decided to accept

implementation of the Goga Plan. However,

this action does not eliminate a taking.

As the Court of Claims correctly

determined, 27 acres of the parcel were

temporarily taken and 28 acres were

A 61

permanently taken.

In First English Evangelical

Lutheran Church of Glendale v. Los

Angeles Co., 482 U.S. 304, 321, 107 S.Ct.

2378; 96 L. Ed. 2D 250 (1987), the

Supreme Court held that where the

government’s activities have created a

taking of all use of property, so

subsequent action by the government can

relieve it of the duty to provide

compensation for the period during which

the taking was effective. Such “temporary

takings” are also entitled to just

compensation.

Therefore, we find that the Court of

Claims did not err in awarding

compensation. The court properly found

that there was a temporary taking

A 62

concerning part of the land and a

permanent taking concerning the remaining

portion of the land. Thus, the court’s

order awarding compensation complied with

MCL 281.721(4); MSA 18.595(71) (4) in that

it found a temporary taking concerning

part of the land that could be developed

under the Goga Plan.

IV.

Next, defendant contends that the

trial court erred in finding MCL

281.721(4); MSA 18.595(71) (4)

unconstitutional in that it violated the

just compensation clause of the Fifth

Amendment and Const. 1963, art. 16, § 2.

The Court of Claims did not err in

finding § 21(4) is unconstitutional

because it limits plaintiffs recovery to

A63

twice the state equalized value of the

property taken. Both the federal and

state constitutions provide that private

property cannot be taken for public use

without just compensation. Just

compensation means the full monetary

equivalent of the property taken. Abttota

Farmers Elevator & Warehouse Co. v.

Unites States, 409 U.S. 470, 473; 93 S.

Ct. V3i; 35 &. Ba. 20 202972). Guec

compensation is that amount that places a

property owner in a condition as good as

the owner would have been had the taking

not occurred. JId.; Qakland Hills

Development Corp, v. Lueders Drainage

District, 212 Mich. App. 284, 292-293;

537 N.W.2d 258 (1995).

The determination of the measure of

A64

just compensation for a taking is a

judicial, not a legislative, question.

488 U.S. 371, 417 n.30; 100 S.Ct. 2716;

65 L.Ed. 463 (1980), citing Monongahela

Navigation Co. v. Unites States, 148 U.S.

312, 327; 13 S.Ct. 622; 37 L.Ed. 1209

(1936). Because the determination of the

proper measure of compensation for a

taking is solely a judicial question, the

legislature may not restrict the measure

of just compensation in a takings case.

Balti - Ohio Rail ic Uni

States, 298 U.S. 349; 368; 56 S. Ct. 797;

80 L. Ed. 1209 (1936). Thus, statutes

that set forth the compensation rate for

a taking, such as MCL 281.721(4); MSA

18.595(71) (4), are unconstitutional. See

ao5

Baltimore and Ohio, supra; Monongahela,

supra.

Because MCL 281.721(4) ; MSA

18.595(71) (4) mandates the method of

computing just compensation for a taking,

the Court of Claims correctly held that

it is unconstitutional.

Vv.

Last, defendant argues that the

Court of Claims awarded excessive damages

for the taking. We disagree.

The purpose of just compensation is

to put property owners in as good a

position as they would have been had

their property not been taken from them.

Miller Bros, supra, p. 685. The public

must not be enriched at the property

owners’ expense, but neither should

A 66

property owners be enriched at the

public’s expense. Id. There is no formula

or artificial measure of damages

applicable to all condemnation cases. The

amount of damages to be recovered by the

property owner is generally left to the

discretion of the trier of fact after

consideration of the evidence presented.

Poirier v. Grand Blanc Twp, after remand,

192 Mich. App. 539, 543; 481 N.W.2d 762

(1992).

In avoiding windfalls to property

owners, the nature of the taking must be

considered. Where there is a temporary

taking, the just compensation awarded

must reflect its temporary nature. Miller

Bros. supra. p. 687. This Court has

recognized that money damages are

A 67

recoverable for a temporary,

unconstitutional taking. Courts should

engage in a flexible approach in

determining compensation for a temporary

taking. Some factors to consider include:

rental return, option price, interest on

lost profit, before and after valuation,

and benefit to the government. Poirer,

Supra, p. 544-545.

The Court of Claims awarded

$3,245,236, plus interest of

$1,574,522.60 for the property taken. The

Court of Claims also awarded $459,400 for

the temporary use of the property. The

court’s award of damages is based on the

evidence presented and does not appear to

be an abuse of discretion. In this case,

because of the difficulty in determining

A 68

the fair market value of the land with

the use restrictions placed on it, the

court appeared to engage in a flexible

approach in computing damages. Defendant

has not shown that the Court of Claim’s

computation of damages was erroneous or

excessive.

Affirmed.

APPENDIX D

COMMONWEALTH OF MASSACHUSETTS

HAMPDEN SUPERIOR COURT

C.A. CO. 87-1077

MARY E. LEONARD

V.

TOWN OF BRIMFIELD, ZONING BOARD OF

APPEALS

FINDINGS, RULINGS AND ORDER OF JUDGMENT

The plaintiff owns sixteen acres of

land lying between the Quaboag River and

Dunhamton Road in Brimfield,

Massachusetts. The area is zoned a Flood

Plain Zone. It is shown on Exhibit 5,

Plan of the land by Smith Associates,

march 1987, which divides the land into

four lots. The house which the plaintiff

proposed to build is shown on lot 12B on

that plan. The plan has not been recorded

in the registry. The Brimfield building

inspector granted a building permit dated

March 30, 1987 for a single family house.

Then in an April letter he revoked the

permit for the reason that a permit ina

Flood Plain Zone required a finding by

the Board cf Appeals that the use would

not endanger the health or safety of the

occupants thereof.

Mary Leonard then filed a request

for a special permit on or about April

13, 1987. By a decision dated June 2,

1987, the Board granted the request but

limited construction to land at and above

the 370’ elevation mark. The plan of the

A7l

land by Smith Associates dated March 1987

(Exh.5), prior to her request for a

permit, placed the house at a point which

was at an elevation of 370 feet or

higher. The top of the well installed by

Mary Leonard, seen by the court on a

view, was within 50 feet of Dunhamton

Road at an elevation of 368 feet.

The 100 year flood zone would

indicate flooding from the Quaboag river

would bring water onto the property up to

the elevation of 360 feet. A neighbor,

Demers, who testified indicated that the

1955 flood covered Dunhamton Road at the

southern end of the property , and he

Grew a pencil on Exhibit 5 where he

recalled the flood waters from the 1955

flood to have reached. Exhibit 10 showed

A’2

the position on the property of the 360’

line, 100 year flood, and the 365’ line,

the 500 year flood. The line drawn by

witness Demers would come close to the

top of the well as shown on that plan.

In an appeal from the decision of

the zoning board of appeals, the court’s

function is to determine de novo whether

there was adequate basis for the board’s

decision and to see that it was not made

on legally untenable basis, was not

arbitrary or capricious, and made for

some legally impermissible reason. If the

reasonable minds differ as to the

issuance of a permit, it is the boards’

decision that will govern, not the

court’s. Kinchla yv. Planning Board of

Assessors of Falmouth, 11 Mass. App. Ct.

A73

927 (1981). See Garvey v. Board of

Appeals of Amherst, 9 Mass. App. Ct. 856

(1980); Malcomb v. Board of Appeals of

Southborough, 361 Mass. 887 (1972).

The Superior Court in reviewing the

board’s decision may consider only the

evidence which formed the basis of the

board’s action. See McDonald’s

Corporation v. Town of East Longmeadow,

25 Mass. App. Ct. 9$04,. 9035 (i983)

(rescript). The court cannot substitute

its judgment of that of the Board.

McDonald's Corporation v. Board of

Selectmen of Randoph., 9 Mass. App. Ct.

830, 832 (1980) (rescript).

I find that the plaintiff has not

demonstrated by a fair preponderance of

the evidence that the Board’s decision

a74

was out-side the scope of its authority

and should be annulled, or that there was

not adequate basis for the Board's

decision. I therefore affirm the decision

of the Brimfield Zoning Board of Appeals

and dismiss the appeal.

William H. Welch

Justice of the Superior Court

Entered: October 19, 1987.

a75