Whether enforcement of the Massachusetts Watershed Management Act, GL. c. 92A½, effects a regulatory taking requiring just compensation under the Massachusetts Constitution.

The Watershed Management Act of 1992 prohibits alterations to land within 200 feet of a lake. GL. c. 92A½.  However, the Act allows construction of a single family dwelling on lots existing prior to 1992, or other development if a variance is granted stating that the development will not affect the public water supply.  Id., § 5.

The appellants were permitted to build a single-family home on their lakefront property in 1994.  However, they were denied a variance to make other alterations, such as an enlarged beach, removal of trees, and a brick path.  An expert for the Commonwealth apparently testified that any removal of trees on the property would result in decreased water quality, despite other mitigation procedures.

The essential issue of this case is how the Court should evaluate the complete regulatory deprivation of economically beneficial use of a small part of a property.  

Under the Federal constitution, a regulation constitutes a categorical taking, requiring just compensation, in “the extraordinary circumstance when no productive or economically beneficial use of land is permitted,” looking at the parcel as a whole.  Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 330 (2002).  If some part of the parcel remains viable, the Federal Constitution employs a more flexible test considering the economic impact of the regulation, the property owner’s reasonable expectations, and the character of the government action.  Penn Central Transp. Co. v. New York, 438 u.s. 104 (1978).

The appellants raise the novel claim that, under the Massachusetts Constitution, it is a categorical taking to deprive them of economically beneficial use of even a small part of their property.  The appellants ground their claim for greater protection on Article 10 of the Declaration of Rights, which (unlike the Federal Constitution) specifies that “no part of the property of any individual” can be taken without just compensation.

The defendant’s claim is unlikely to succeed.  The problem of regulatory takings is tricky — it is clear on the one hand that the government must be able to regulate harmful land use, and on the other hand must not be able to forbid all use of property without compensation.  There is no definitive way to draw a line between those two important principles, and the compromise crafted by the Supreme Court is not necessarily the best one for the Commonwealth.

The appellants fail to offer a viable alternative, however.  Rather, they suggest that they must be compensated for any part of their property they are not permitted to develop.  As the Commonwealth observes, this rule would have a dramatic impact on a wide range of land use regulations, such as zoning requirements that a house be set back a certain distance from the street.  The Court is unlikely to go so far.  Nor does Article 10 require it to.  It is already settled law under both constitutions that physical taking of any part of an individual’s property requires compensation; the Court need not read the “no part” language in Article 10 to also apply to regulatory takings.