REGULATORY TAKING CLAIMS IN MASSACHUSETTS
FOLLOWING THE LINGLE AND GOVE DECISIONS
by Robert S. Mangiaratti, Esq.
In 1922, the Supreme Court of the United States first recognized that a governmental
regulation could be the equivalent of an uncompensated taking of private property in
violation of the Fifth Amendment1. Writing for the majority in Pennsylvania Coal Co. v.
Mahon, Justice Holmes said, “while property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking.”2 In the years since that imprecise
beginning, the Supreme Court developed a series of sometimes overlapping tests to
determine when a regulation went “too far”. One such test came from Agins v. City of
Tiburon3, in which the Court said that a regulatory taking would be recognized if a
regulation did not substantially advance legitimate state interests. In 2005, the Supreme
Court reexamined its takings jurisprudence in Lingle v. Chevron U.S.A. Inc.4 and addressed
the confusion that arose from prior decisions that applied a due process analysis to takings
claims.
The Court in Lingle discarded the Agins test for regulatory takings and stated that
such an inquiry was more appropriately directed to a due process analysis of whether the
regulation was a valid exercise of governmental authority.
Shortly after Lingle, the
Massachusetts Supreme Judicial Court also rejected the “significantly advances” test in
Gove v. Board of Appeals of Chatham.5
In addition to eliminating the Agins test, both Lingle and Gove emphasized that regulatory
taking claims in the future should be analyzed under one of the three following
approaches:6
“[N]or shall private property be taken for public use, without just compensation.” U.S. Const. Am. V.
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)
3 Agins v. City of Tiburon, 447 U.S. 255 (1980)
4 Lingle v. Chevron U.S.A. Inc, 125 S. Ct. 2074 (2005)
5 Gove v. Board of Appeals of Chatham
444 Mass. 754 (2005)
6 Lingle at 2081, Gove at 761-762
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1. Where a regulation causes a “permanent physical invasion” of private property, the
owner is entitled to compensation.7
2. A regulatory taking will also be recognized where a regulation deprives an owner of
“all economically beneficial use” of private property except to the extent that
background principles of nuisance and property law independently limited the
owner’s use of the property.”8
3. Finally, where the first two approaches are inapplicable, regulatory taking claims are
governed by the flexible economic impact factors set forth in Penn Central
Transportation Co. v. New York City.9
This article will discuss the “significantly advance legitimate state interests” test that both
Gove and Lingle abandoned and examine the three remaining categories of regulatory
taking claims with particular emphasis on how Massachusetts courts have applied them.
1. Failure to “Substantially Advance Legitimate State Interests” is no longer part of
takings jurisprudence.
Lingle v. Chevron U.S.A, Inc.10 arose from a challenge to a statute that Hawaii enacted to
restrict the rent that oil companies could charge their lessee service stations. The purpose
of the statute was to prevent high retail gasoline prices. Relying on Agins v. City of
Tiburon11, the trial court determined that the statute caused a regulatory taking because it
did not substantially advance legitimate state interests. The United States Supreme Court
reversed and unequivocally rejected “failure to substantially advance a legitimate interest” as
an appropriate test for determining whether a regulation has caused an uncompensated
taking of private property. In her majority opinion, Justice O’Connor characterized the test
Loretto v Teleprompter Manhattan CATV, 458 U.S. 419 (1982)
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)
9 Penn Central Transportation Co. v. New York City 438 U.S. 104 (1978)
10 125 S. Ct. 2074.
11 447 U.S. 255
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as a “commingling of due process and taking inquiries” that was “regrettably imprecise”. 12
She also pointed out that a regulation which fails to serve any legitimate governmental
objective may be so arbitrary or irrational that it deprives persons of property rights in
violation of the Due Process Clause.
Such a regulation would be unconstitutional
regardless of the degree of financial impact that it might have on an individual landowner.
By contrast, the Takings Clause of the Fifth Amendment “does not prohibit the taking of
private property, but instead places a condition on the exercise of that power.” 13
The policy underlying the Takings Clause is to prevent government from placing a financial
burden on some people that should rightly be borne by the public as a whole.14 In typical
eminent domain cases, the public compensates a party for dedicating that party’s private
property to a public purpose. Justice O’Connor in Lingle stated that regulatory taking cases
must be analyzed in the context of the fundamental nature of all governmental takings.
[R]egulatory [taking] actions are functionally equivalent to the classic taking
in which government directly appropriates private property or ousts the
owner from his domain. Accordingly, each of the …[recognized tests for
regulatory takings] focuses upon the severity of the burden that
government imposes upon private property rights15
Recognizing that the “substantially advances” test has nothing to do with the underlying
policies of the Taking Clause, the Court concluded, that it “…prescribes an inquiry in the
nature of due process, not a takings test, and it has no proper place in our takings
jurisprudence.” 16
Immediately following Lingle, the Massachusetts Supreme Judicial Court decided Gove v.
Zoning Board of Appeals17 where the claimant argued that a coastal conservancy district
Lingle 125 S. Ct. 2074 at 2083
Lingle at 2080 citing First English Evangelical Lutheran Church of Glendale v. County of Los Angeles 482 U.S. 304, 314
(1987) (internal quotes omitted)
14 Id. at 2080
15 Id at 2082
16 Id at 2083
17 Gove v. Board of Appeals of Chatham,444 Mass754 (2005)
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by-law that prohibited development on her lot did not substantially further legitimate state
interests. Massachusetts had previously recognized the Agins test in Lopes v. Peabody.18
Referring to Lingle, the Supreme Judicial Court simply stated the “substantially advances
legitimate state interests” test would no longer would be recognized in takings cases.
The Court in Gove went on to hold that the prohibition against residential development on
claimant’s lot had a sufficient relationship to legitimate state interests to withstand a due
process challenge. Both Lingle and Gove indicated the failure to substantially advance
legitimate state interests would not be a standard applicable to due process claims. The
Lingle decision made repeated references to the “deferential reasonableness” standard that
the Court has repeatedly applied to “determine whether a challenged regulation was a valid
exercise of police power under the Due Process Clause.”19
In his concurring opinion,
Justice Kennedy stated that the Lingle decision did “not foreclose the possibility that a
regulation might be so arbitrary or irrational as to violate due process.”
20
Yet he did not
suggest that the heightened scrutiny of the “substantially advances” test would be
applicable to such claims. A regulation which does not substantially advance state interest
could nonetheless have enough of a rational purpose to overcome a claim of being arbitrary
or irrational. The Supreme Judicial Court in Gove emphasized that due process challenges
to zoning regulations will not succeed unless the regulation “bears no reasonable relation to
the State’s legitimate purpose.”21
Thus, is seems settled in Massachusetts, that the
“substantial advances legitimate state interests” stated in Agins v. City of Tiburon22 is no
longer applicable to constitutional challenges of governmental regulations on either taking
grounds or due process grounds.
Lopes v. Peabody, 417 Mass. 299 (1994)
Lingle at 2083 citing Lawton v. Steel 152 U.S. 133, 137 (1894) (internal quotes omitted).
20 Lingle at 2087
21 Gove at 760 citing Exxon Corp. v. Governor of Maryland , 437 U.S. 117, 125 (1978)
22 447 U.S. 255
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2. The Physical Invasion Factor.
When discussing the concept of regulatory takings, courts have consistently recognized that
“…where government requires an owner to suffer a permanent physical invasion of her
property-however minor—it must provide just compensation.”23 The Supreme Court has
classified any such physical invasion of private property as a “categorical” regulatory
taking.24 The precedent frequently cited to support this factor is Loretto v. Teleprompter
Manhattan CATV Corp.25 which held that a state law compelling apartment building
owners to permit cable television companies to install cable facilities in their buildings
constituted a taking. Earlier in United States v. Cress, the Supreme Court recognized that
repeated floodings of land caused by a water project were a taking.26 Similarly, in what
might be characterized as more than a mere figurative invasion of private property, the
Court in Portsmouth Co. v. United States held that the firing of guns over a claimant’s land
by the U.S. military was a taking.27
More recently, in Nollan v. California Coastal
Commission28 the Supreme Court held that the exaction of a public beach easement as
condition for a permit to construct a house was a physical invasion which constituted a
taking.
While the physical invasion test for regulatory takings has often been mentioned by
Massachusetts courts29, no reported Massachusetts decision has determined that a
governmental regulation caused so great a physical invasion that it would entitle a property
owner to compensation. Moreover, in at least two cases where the government did take
physical possession of the claimants’ property, their regulatory taking claims did not
succeed.
In Davidson v. Commonwealth,30 the Massachusetts Department of Public
Health took over the operation of a nursing home after the governor declared a public
Lingle at 2081
Lucas at 1015
25 458 U.S. 419 (1982)
26 Untied States v. Cress, 243 U.S. 316 (1917)
27 Portsmouth Co. v. United States, 243 U.S. 327 (1922)
28 Nollan v. California Coastal Commission 483 U. S. 825 (1987)
29 E.g. Gove v. Zoning Board of Appeals of Chatham at 762, Daddario v. Cape Cod Commission 425 Mass. 411,415 (1997)
30 Davidson v. Commonwealth, 8 Mass. App. Ct. 541 (1979)
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health emergency for the protection of the nursing home patients. The Court drew a
distinction between an exercise of eminent domain power which is compensable and an
exercise of police power which is not.
[I]n the exercise of eminent domain a property interest is taken from the
owner and applied to the public use because such use is beneficial to the
public, while in the exercise of police power an owner’s property interest is
restricted or infringed upon to prevent its use in a manner detrimental to
the public interest.31
Similarly, in Nassr v. Commonwealth,32 the Supreme Judicial Court found no compensable
taking when the state took possession of a contaminated property to clean up hazardous
waste. The Court characterized the governmental action as a “classic exercise[ ] of the
State’s police power to maintain the public health.”
33
These cases applied a due process
analysis that was rejected for regulatory takings claims in the subsequent Lingle decision.
Furthermore the distinction between preventing harm to the public and promoting a public
benefit was discredited in Lucas v. South Carolina Coastal Council .34 Yet it seems unlikely
that these Massachusetts cases would be decided differently today. For one thing, neither
case caused a permanent physical invasion of claimant’s property and the takings test has
always been described in terms of permanent invasion. Furthermore, it could be argued
that the hazardous waste in Nassr and the unsafe nursing home in Davidson constituted
public nuisances for which the Supreme Court carved out an exception to so called
“categorical” takings in Lucas v. South Carolina Coastal Council discussed below.
3. The Lucas Test
The United States Supreme Court announced a second categorical test for regulatory
takings in Lucas v. South Carolina Coastal Council.35 The Court held that a regulatory
taking occurs whenever a regulation eliminates all economically valuable use of land, except
Id. at 548.
Nassr v. Commonwealth, 394 Mass. 767 (1985)
33 Id. at 771
34 505 U.S. 1003 (1992)
35 Id.
31
32
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where the regulation prohibits a violation of common law nuisance or property principles.
The Lucas holding has often been recognized in Massachusetts decisions.36 Yet, despite its
notoriety, the Lucas test offers little practical guidance because as the Appeals Court
declared in 2004, “No Massachusetts appellate court has addressed the circumstances in
which compensation is warranted for a per se or categorical taking under Lucas
principles.”37 The unanswered question in both federal and state cases is: How far does a
regulation have to go to make land valueless? Apparently in Massachusetts, the regulation
must go extremely far because state courts always have found some residual value to land
that had been made less valuable by a regulation.38 The residual value of land affected by
state regulations is discussed below in the section of this article about the economic impact
of regulations.
Lucas arose from a case where petitioner purchased two beach front lots in 1986 which at
the time were legal building sites. In 1988, the State of South Carolina enacted the
Beachfront Management Act to prevent beach erosion. Under the Act, the construction of
houses on the two lots was prohibited. The state trial court made a finding that the
legislation “deprived Lucas of any reasonable economic use of the lots…and rendered
them valueless.”39 Justice Blackmon’s dissent characterized the trial court’s finding to be
“unreviewed and implausible”40 and pointed to obvious residual uses for the property.
“Petitioner still can enjoy other attributes of the property…[he] can picnic, swim, camp in a
tent, or live on the property in a movable trailer.”41
Although the majority of the Lucas court acknowledged that a regulation that caused a
complete deprivation of all economic beneficial use
would be an “extraordinary
Eg. Lopes v. Peabody 417 Mass. 299 (1994) The Supreme Court remanded a case to determine whether a regulation had
deprived the owner of all economically beneficial use of land.
37 Zanghi v. Board of Appeals of Bedford, 61 Mass. App. Ct. 82, 85, (2004)
38 E.g. Leonard v. Brimfield 423 Mass. 152 (1996)
39 Lucas at 1009
40 Id. at 1036 (parenthesis omitted)
41 Id. at 1044
36
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circumstance”,42 it used the facts found by the trial court to diminish the breadth of the
state’s police power in the area of regulatory takings. Previously, state action adversely
affecting a private property right would not have been characterized as a taking if it
proscribed a harmful or noxious use of property.43 The right to compensation would only
arise when the regulation adversely impacted private property rights for the sake of
promoting the public good. The Lucas decision discarded the previously recognized
distinction between regulations which prevent harm and regulations which confer a public
benefit. The Court stated that as a general rule, where a regulation deprives the owner of all
economical valuable use of the land, regardless of how the public purpose is categorized,
the owner is entitled to compensation under the Takings Clause.44 However, the Lucas
court carved out an exception to its categorical rule by stating that a regulation depriving an
owner of all economically beneficial use of land will not be deemed a regulatory taking if it
is based upon common law principles of nuisance and property law. The Court reasoned
that the bundle of rights that attach to land ownership did not include the right to create a
nuisance or violation of property rights under the common law. If a regulation were to
abate such nuisance or violation of property rights, then it would be affecting rights that
the land owner never had in the first place. Thus, states may still deprive an owner of all of
his interest in real estate to prevent harm but only if that particular harm had been
previously recognized in the common law.
4. The Penn Central Factors
In light of the infrequency of circumstances that would fall under the categorical tests
discussed above, it seems likely that most future Massachusetts regulatory takings claims
will be determined through an application of the flexible economic impact factors set out in
Penn Central v. City of New York.45 The case arose when the New York City Landmarks
Id. at 1017
Id at 1023
44 Id. at 1030
45 Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), See Pat A. Cerundolo, The Limited Impact of
Lucas v. South Carolina Coastal Council on Massachusetts Regulatory Jurisprudence, 25 B.C. Envtl. Aff. L. Rev. 431 (1998).
42
43
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Preservation Commission prohibited the erection of an office tower with more than fifty
stories on top of Grand Central Station. The landmark station was constructed in 1913 and
was regarded as a “magnificent example of French beaux-arts style”. Penn Central argued
that the Commission’s decision constituted a regulatory taking.
Writing for the majority, Justice Brennan recognized that regulatory taking claims cannot be
decided according to a “set formula”.46 He argued that each claim “depends upon the
particular circumstances in that case”47 including “the economic impact of the regulation
and particularly the extent to which the regulation has interfered with distinct investmentbacked expectations…. [and] the character of the governmental action.”48
The Massachusetts Supreme Judicial Court in Leonard v. Brimfield49 broke down the Penn
Central holding into three distinct factors for determining when a regulatory taken has
occurred:
a. The economic impact of the regulation on the claimant;
b. The extent to which the regulation has interfered with distinct
investment-backed expectations; and
c. The character of the government action.
Each of the three factors has been considered in several federal and state cases since the
Penn Central decision.
Economic Impact
A claimant seeking compensation for a regulatory taking must show that its economic loss
was severe.50 In Penn Central, after assessing the economic impact of the Landmark
Id. at 124
Id.
48 Id.
49 Leonard v. Brimfield, 423 Mass 152, 154 (1996)
50 FIC Homes of Blackstone v. Conservation Commission of Blackstone, 41 Mass. App. Ct. 681, 694 (1994).
46
47
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Preservation regulations on Grand Central Station, the Court held that the economic
impact was not sufficiently severe to rise to the level of a taking. The Court emphasized
that Penn Central “may continue to use the property precisely as it has been used for the
past 65 years: as a railroad terminal containing office space and concessions.”51
In evaluating the severity of economic losses, courts will look to the whole of the claimant’s
property rather than the losses suffered with respect to any particular discrete segment of
the land.52 In FIC Homes of Blackstone v. Conservation Commission of Blackstone,53 a
regulation that caused an owner to lose one lot out of a total of thirty-eight lots on a parcel
was not a sufficiently severe economic loss. In Leonard v. Brimfield,54 the loss of the right
to build houses on ten out of a total of sixteen acres on plaintiff’s land was not severe
enough to sustain a regulatory taking claim. The Court in Leonard also noted that the land
that was left not available for building remained suitable for agriculture, horticulture and
recreational purposes.55 Zanghi v. Board of Appeals of Bedford56 decided that the loss of a
single lot in a subdivision as a result of a zoning amendment did not amount to a severe
economic loss, particularly where the owner had already made a profit on the other lots in
the subdivision and the lot unavailable for building could still be used for forestry,
agriculture and conservation uses. The Court also discussed residual value in Daddario v.
Cape Cod Commission57 where the Cape Cod Commission did not allow claimant to use
the land for a sand and gravel mining operation to the full extent proposed. The Court
noted that the possibility of a less extensive mining operation and alternative uses including
community service, agriculture and residential uses and held that a taking had not
occurred.58
Penn Central at 136.
Daddario v. Cape Cod Commission 425 Mass. 411, 416 (1997)
53 41 Mass. App.Ct. 681 (1994)
54 Leonard v. Brimfield at 156
55 Id.
56 Zanghi v. Board of Appeals of Bedford, 61 Mass. App. Ct. 82, 90 (2004)
57 425 Mass. 411
58 Id at 417-418.
51
52
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An additional observation about economic impacts in Massachusetts regulatory taking
decisions, is that the economic impact must be a direct consequence of the governmental
regulation.
The claimant in W.R. Grace-Conn v. Cambridge City Council59 sought
regulatory taking damages for a temporary building moratorium that affected its 29 acre site
in Cambridge. In rejecting its economic impact argument, the Court observed that the
landowner chose not to develop the entire parcel in large part because of market factors
unrelated to the City’s zoning regulations. The economic impact for which plaintiff sought
compensation was not actionable in a regulatory taking claim because it was not entirely the
product of the regulation.
Interference with Investment-Backed Expectations
Penn Central took a long view of investment backed expectations and looked to the
original purposes for which Grand Central Station was constructed. Because it could still
be utilized as a railroad station, the regulation did not “interfere with what must be
regarded as Penn Central’s primary expectation concerning use of the parcel.” 60
Additionally the Court observed that according to the record in the case, Penn Central was
able to obtain a reasonable return on its investment from the existing use of the building61.
In Massachusetts regulatory taking decisions that have discussed interference with
investment backed expectations, courts have insisted that the expectation of the landowner
must be legitimate and reasonable. The Supreme Judicial Court in Gove v. Board of
Appeals of Chatham stated that prior to adoption of coastal conservatory regulations that
expressly prohibited construction on the claimant’s land, it was a “highly marginal parcel” 62
that was exposed to flooding and had long been considered unsuitable for building. After
adoption of the regulation, appreciation of property values in the area had increased to the
point that the land might have had some potential for development.
In these
W.R. Grace & Co.-Conn. v. Cambridge City Council, 56 Mass. App. Ct. 559, 573-574 (2002)
Penn Central at 36
61 Id.
62 Gove at 765
59
60
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circumstances, the Court held that, “[t]he takings clause was never intended to compensate
property owners for property rights that they never had.”63 The land owner’s legitimate
investment backed expectations had to take into account existing rules and understandings
with respect to land use. Furthermore, property owners must also expect that new zoning
regulations may be enacted from time to time that will frustrate development plans for a
particular parcel. The Massachusetts Appeals Court bluntly cautioned land owners in the
W.R. Grace & Co-Conn v. Cambridge City Council:
[A] developer with designs on improving its property consistent with
existing zoning framework had best get its shovel into the ground. That
the zoning change prevents an owner from exploiting the investment
potential of the property to the fullest does not make it a taking. 64
Massachusetts Courts have also considered the date on which a regulation was adopted in
relation to the time when the claimant acquired the land affected by the regulation. If the
land were acquired when the regulation was already in effect, the claim of interference with
investment backed expectations would be considerably weaker. The claimant in Leonard v.
Town of Brimfield claimed a taking because a special permit regulation diminished the
value of her sixteen acre subdivision. Her argument about investment backed expectations
failed because the regulation was in effect when she purchased the land. The court held
that “because she purchased the property subject to the restrictions on building in a flood
plain, she may not complain about the loss of a right that she never acquired.”65 Similarly,
the Supreme Judicial Court stated in Flynn v. City of Cambridge66 that condominium
owners who bought their units after adoption of a rent control regulation that prohibited
removal of controlled units from the rental housing stock were “fairly warned that they are
purchasing property which may be used for rental housing only.”67
Id.
W.R. Grace & Co.- Conn. v. Cambridge City Council at 574.
65 Leonard v. Town of Brimfield 423 Mass at 155; But see Lopes v. City of Peabody, 417 Mass. 299 (1994). While timing of
the acquisition of land in relation to the date of the adoption of a regulation is relevant to an inquiry in regulatory taking cases, it
is not, by itself, determinative. The Court in Lopes expressly allowed a landowner to challenge a regulation despite the fact that
the regulation was in effect when the land was purchased.
66 Flynn v. City of Cambridge 383 Mass. 152, (1981)
67 Id. at 160
63
64
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Flynn v. City of Cambridge provided an additional level of analysis about regulations which
interfered with owners’ expectations. The rent control regulation in that case also applied
to a second class of owners who had purchased units and had rented them to tenants
before the regulation was adopted. Those owners were also not allowed to evict the
tenants and remove their units from rental housing stock. The Court citing Penn Central
held that no taking had occurred because the governmental action did not interfere with
the owners’ primary expectation concerning use of the property and that the owners still
were able to obtain a reasonable return on its investment. The owners were using the units
for rental purposes when the ordinance went into effect. Thus, the primary and original
expectation of the owners had not been frustrated. Furthermore, under the applicable rent
control regulations, owners were entitled to receive a fair net operating income from the
unit. The fact that owners could make a more profitable use of their units but for the
regulations was not sufficient interference with investment backed expectations to support
a regulatory taking claim.
The Character of Governmental Action
The third guidepost from the Penn Central analysis of regulatory takings claims is “the
character of governmental action”.
While discussing the “character of governmental
action” factor, the Supreme Court in Penn Central examined cases in which a regulation
was upheld if it “served a substantial public purpose”.68 It cited Miller v. Schoene69 where
the state ordered claimants to cut down a large number of ornamental red cedar trees
because they produced a disease fatal to nearby apple trees. In view of the recent holding
in Lingle mentioned above, inquiries about whether a regulation serves a substantial public
purpose might now be characterized as due process issues rather than indications of
whether a regulatory taking had occurred. After Lingle, courts may not be able to deny
takings claims by simply finding that the state action was an exercise of legitimate state
68
69
Penn Central at 127.
Miller v. Schoene 276 U.S. 272 (1928)
13
police power.
The court in Miller approved “destruction of one class of property without
compensation in order to save another, which in the judgment of the legislature, is of
greater value to the public.”70 The legitimate exercise of police power will continue to
withstand a due process challenge but economic impacts imposed upon the property owner
may have to be analyzed to decide whether compensation is required under the Takings
Clause.
Despite the holding in Lingle that inquiries about the legitimacy of state action more
properly should be directed to a due process analysis, the Supreme Judicial Court in Gove
v. Zoning Board of Appeals of Chatham71 nonetheless examined the purposes of the
regulation in its takings analysis of the “character of governmental action”. The Court
characterized the Chatham coastal regulations as the type of limited protection against
harmful private use of land that routinely withstands regulatory taking claims. The court
noted that potential flooding of the subject property would adversely affect the
surrounding areas. It went on to state, “Reasonable governmental action mitigating such
harm, at the very least when it does not involve a ‘total’ regulatory taking or a physical
invasion, typically does not require compensation.”72 Thus, it seems that in Massachusetts,
where a regulation does not cause a so called categorical taking, courts may examine the
purposes of a regulation in a regulatory taking claim as part of its Penn Central analysis of
the character of the governmental action in question.
Several other Massachusetts decisions that have discussed the “character of governmental
action” factor indicate that in the absence of a physical invasion of the property, the
governmental action does not amount to a taking.73 Consequently, it appears that an
overlap exists between the physical invasion categorical test typified by Loretto v.
Miller v. Schoene at 279. See also Davidson v. Commonwealth 8 Mass. App Ct. 541, (1979)
444 Mass. 754 (2005)
72 Id. at 767
73 E.g. Leonard v. Town of Brimfield, 423 Mass. 152, 156 (1996); Zanghi v. Board of Appeals of Bedford, 61 Mass. App. Ct.
82, 90 (2004); W.R. Grace & Co.-Conn. v. Cambridge City Council, 86 Mass. App. Ct. 559, 575 (2002)
70
71
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Teleprompter Manhattan CATV74 as discussed above and the character of governmental
action prong of the Penn Central test.
5. Conclusion
Lingle v. Cheveron U.S.A., Inc. says that regulatory taking claims should be decided by
measuring the magnitude and character of the burden that a regulation places upon private
property.
The decision suggests that an inquiry about whether a regulation serves a
legitimate state interest does not fall within the constraints of the Takings Clause.
According to Lingle, challenges to the purposes and effectiveness of a regulation should be
controlled by the Due Process Clause. However, in Gove the Massachusetts Supreme
Judicial Court ostensibly accepted all of Lingle, yet still chose to point out in its takings
analysis that the challenged by-law was typical of regulations that served the public interest.
The Court in Lingle acknowledged with approval the categorical taking test in Lucas v.
South Carolina Coastal Council. However, for courts to apply the Lucas exceptions for
common law nuisance and property law violations, the purposes of the regulation must be
examined. Whether a regulation abates a common law nuisance is part of an inquiry about
the legitimate exercise of police powers. Despite the Court’s efforts in Lingle to separate
due process from takings issues, both concepts are going to remain relevant whenever
someone challenges the effect that a land use regulation has upon private property. The
unhappy landowner will typically believe that the state has no legitimate business interfering
with his private property and the state will invariably point to promoting the public good as
justification for its regulation. Furthermore, it seems that the “character of governmental
action” factor in the Penn Central analysis compels both sides to make such arguments
concerning the purposes of the regulation. Unquestionably, however, governments no
longer have to contend with the difficult burden under Agins v. City of Tiburon of
74
458 U.S. 419 (1982)
15
showing that a regulation substantially advances legitimate state interests. Regardless of
how the purpose of the underlying regulation is challenged, governments now need only
show that the regulation bears some reasonable relation to the state’s legitimate interests.
On a practical level, Lingle strongly recommends to claimants that pleadings should be
carefully constructed to allege due process challenges and taking claims separately. Courts,
in turn, should discern the difference between the two constitutional principles when
addressing challenges to regulations that diminish the value of private property.
The flexible three factor test of Penn Central remains the most useful tool for analyzing
regulatory takings claims. Its far from a simple litmus test approach but it does identify the
rational factors to be considered when deciding whether a regulation has caused an
uncompensated taking of private property. To date almost no cases in Massachusetts have
addressed a regulation that imposed a burden on a land owner that was disproportionate to
the point of being an uncompensated taking. However, despite their reluctance to actually
find regulatory takings, courts on both the state and federal levels repeatedly maintain that a
regulatory taking will occur if, as Justice Holmes observed more that eighty years ago, the
“regulation goes too far”.
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