Opinion
No. 98-2758-G.
June 6, 2000.
MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
The plaintiff, the Commonwealth of Massachusetts (the "Commonwealth") has brought this enforcement action seeking injunctive relief against the defendants, Clealand B. Blair and Nancy J. Blair ("the Blairs"), for violations of the Watershed Protection Act ("WPA" or "the Act"), G.L.c. 92, §§ 104 and 107A, arising from certain modifications the Blairs have made to their property in Rutland, Massachusetts. The Blairs contend that (1) they are exempt from the WPA requirements; (2) that the Act effects an unconstitutional, compensable 'taking' of their property under provisions of both the U.S. Constitution and the Massachusetts Constitution; and (3) that the Act's requirements are void as unconstitutionally vague. Both parties now move for summary judgment pursuant to Mass.R.Civ.P. 56(c). For the following reasons, the Commonwealth's motion for summary judgment is ALLOWED , and the defendants' cross motion for summary judgment is DENIED .
FACTUAL BACKGROUND
The following facts are undisputed for the purpose of resolving these motions:
In 1977, the Blairs, as tenants by the entirety, purchased the parcel of property at issue in this case, located on Maple Springs Drive on Demond Pond in Rutland, Massachusetts (the "property"). At the time the Blairs purchased the property, the only improvements thereon were a "camp house" and a lawn and beach area. For seventeen years thereafter, the Blairs used the property for recreational purposes.
In September, 1994, the Blairs applied for the necessary permits to the town of Rutland to demolish the camp house and build a new house on the property. The permits were granted, and the Blairs built the house as planned. In June, 1995, seeking to expand the existing lawn and beach areas, the Blairs filed a Notice of Intent with the Rutland Conservation Commission ("RCC") seeking an Order of Conditions pursuant to the requirements of the Wetlands Protection Act found in G.L.c. 131, § 40. On July 18, 1995, the RCC approved the plans and issued the Order of Conditions permitting the Blairs to perform the expansion work on the lawn and beach.
The Order of Conditions expressly stated that "[t]his order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state or local statutes, ordinances, by-laws or regulations."
Between July, 1995, and July, 1997, the Blairs performed the expansion work on their property. This work included: (1) enlarging the lawn; (2) enlarging the shoreline opening of the beach from at least 60 feet to 120 feet; (3) clearing trees and other vegetation from the shorefront area; (4) excavating, filling, and grading sand and soil, including the removal of 12 inches of topsoil and subsoil from the beach area; (5) placing 12 additional inches of sand on the beach; (6) placing a retaining wall 75 to 85 feet long and at least 30 inches in height; (7) the placement of a three foot wide, 80 foot long brick walk through the lawn area.
The water from Demond Pond flows downstream into the Ware River and through the Ware River intake into the Quabbin Resevoir, a major source of drinking water for the Greater Boston area. As such, the Blair's property on Demond Pond is effected by the WPA. Consequently, the critical material facts relating to the jurisdiction of the Metropolitan District Commission ("MDC") in this matter are not in dispute.
To this date, the Blairs have not sought a variance from the requirements of the WPA from the Division of Watershed Management of the MDC.
The Commonwealth requests that this court grant summary judgment on the issue of whether the Blairs have violated the WPA by their actions expanding their beach and lawn area. The Commonwealth further requests that this court order the Blairs to restore their property to its condition prior to the beach and lawn expansions conducted after July, 1995. The Blairs also move for summary judgment on the ground that they are exempt from the WPA's requirements. Furthermore, the Blairs seek a declaration, pursuant to G.L.c. 231A, that the WPA, both on its face and as applied to them, amounts to an unconstitutional, compensable "taking" of their property under both the United States and Massachusetts Constitutions.
DISCUSSION
Summary judgment is appropriate when there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56; Kourouvacilis v. General Motors Corp., 410 Mass. 706 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The non-moving party cannot merely rest on its pleadings in order to establish a disputed issue of material fact; it is necessary to respond with specific admissible evidence to establish a triable issue of fact. Mass. R. Civ. P. 56(e); Pederson v. Time, Inc., 404 Mass. 14, 17 (1989).
I. Application of the Watershed Protection Act
The WPA was enacted in July, 1992, for the purposes of protecting the watersheds of the Commonwealth so as to preserve drinking water reserves. G.L.c. 92, § 105; 350 Code Mass. Regs. § 11.01. Such protected watersheds include Demond Pond, a natural basin for the Ware River that feeds the Quabbin Reservoir. G.L. c. 92, § 104. The WPA empowered the MDC, Watershed Management Division, to enforce its provisions, to create such regulations for the protection of watersheds, and to hear and decide requests for variances from the WPA's requirements. G.L.c. 92, § 108.
The WPA specifically prohibits the "alteration" of land within two hundred feet of "surface waters" within the watershed. G.L.c. 92, § 107A(a). The parties do not dispute that Demond Pond is a "surface water" within the meaning of the WPA, nor that the property is within the two hundred foot buffer zone. "Alteration," within the meaning of the WPA, includes, inter alia:
draining, dumping, dredging, damming, discharging, excavating, filling, or grading; the erection, reconstruction, or substantial expansion of any buildings or structures; . . . the construction or reconstruction or paving of roads and other ways . . .
G.L.c. 92, § 104.
Based on the undisputed facts, the work here constitutes "alterations" within the meaning of the WPA. Specifically, the Blairs have admitted, both in their Superior Court Rule 9A(b) Statement of Disputed Facts and through Clealand Blair's deposition testimony, that their work included excavation, grading, and filling, which falls squarely within the statutory definition of "alteration". See G.L.c. 92, § 104. Furthermore, the installation of a retaining wall constitutes the erection of a structure, and thus an "alteration". Id.
As the above mentioned "alterations" occurred within the protected two hundred foot buffer zone, G.L.c. 92, § 107A(a), the Blairs have violated the express provisions of the WPA.
II. Application of the Exemption of G.L.c. 92, § 107(c):
The Blairs argue that the alterations at issue are exempt by statutory definition. That exemption states:
This section [107] shall not apply to uses, structures, or facilities lawfully in existence or for which all applicable municipal, state and federal permits and approvals, other thanbuilding permits and permits for septic systems, have been obtained prior to July [1, 1992]. This section shall not apply to any reconstruction, extension, or structural change to any structure in lawful existence as of said date; provided, however, that such reconstruction, extension, or structural change (i) does not constitute a substantial change to or enlargement of that lawfully existing structure, and(ii) does not degrade the quality of the water in the watershed.
G.L.c. 92, § 107A(c). Specifically, the Blairs assert that although this exemption may permit the expansion of "structures," subject to the limitation that such expansion is neither a substantial change nor will effect water quality, it does not limit the expansion of "facilities". They argue that their beach and lawn are "facilities" and that any limitation that applies to "structures" does not apply to "facilities" on account of the exemption language.
The court agrees with the Commonwealth that the Blairs' reading of the statute is a strained interpretation that lacks merit. G.L. § 107A is a flat prohibition on certain activities and conditions within a certain distance from a watershed. G.L. § 107A(c) explicitly exempts "structures or facilities" that existed prior to July, 1992, from the prohibitions of the WPA.
G.L. § 107A(c) explicitly allows, conditionally, the expansion of structures. Such expansions are conditioned on a finding that such expansion would be neither a substantial change nor enlargement to the existing structure, and such change would not adversely effect the watershed the WPA was designed to protect. Id. There is no such conditional allowance of the expansion of "facilities" found in this section. Id. If the Legislature had intended to permit "facilities" to be subject to possible exemption, it could have explicitly done so. It does not follow that because an exemption to the flat prohibition on land development may be granted for the expansion of a structure, that the expansion of facilities is not within the ambit of the prohibition. Accordingly, since G.L. § 107A(c) does not exempt the expansion of "facilities", conditionally or unconditionally, from the reaches of G.L. § 107A(a), the Blairs are subject to the prohibition on "alterations".
Based on the undisputed facts, the Blairs violated the WPA by their modifications of the property between 1995 and 1997, and never sought to obtain a variance from the MDC. Furthermore, as discussed, the exemptions in the statute do not apply to the Blairs' modifications as a matter of law. Therefore, the Commonwealth is entitled to judgment as a matter of law on the issue of whether the Blairs violated the WPA.
III. The Ripeness of the Blairs' Takings Claims:
The Blairs argue in support of their motion for a declaration under G.L.c. 231A that the WPA effects a taking of their property, both on the face of the statute and as applied to them, under both the United States Constitution and the Massachusetts Constitution. These challenges are issues of first impression, being the first constitutional attacks on the WPA. The Commonwealth argues that the Blairs' takings claims are not ripe for adjudication and alternatively that the WPA does not amount to a taking of the Blairs' property either on its face or as applied. Before reaching the merits of these contentions, the court must clarify this court's power to consider them.
The Blairs' facial challenge and as-applied challenge to the WPA are both ripe for adjudication. Generally, a court should refuse to exercise its discretion to grant declaratory relief under G.L.c. 231A where a party challenging an agency action has not exhausted available administrative remedies. See East Chop Tennis Club v. Massachusetts Commission Against Discrimination, 364 Mass. 444 (1973); Cella, Administrative Law, § 1853 et. seq. Nonetheless, the court finds that the controversy is ripe because of the nature of the enforcement proceedings currently before the court.
In its argument, the Commonwealth relies on federal precedent concerning exhaustion of administrative remedies in the regulatory takings context. See MacDonald, Sommer, Frates v. County of Yolo, 477 U.S. 340 (1986); Williamson County Regional Planning Comm'n. v.Hamilton Bank of Johnson City, 473 U.S. 172 (1985); Gilbert v. Cambridge, 932 F.2d 51, 61 (1st Cir. 1991); Kinzli v. Santa Cruz, 818 F.2d 1449 (9th Cir. 1987). These cases make clear that a court should not consider the merits of a takings claim until administrative remedies have been exhausted. Williamson, 473 U.S. 172. Typically, the exhaustion doctrine requires that an applicant seeking a permit from a government agency file least one completed application for a variance, followed by a denial of that application, before the exhaustion of administrative remedies can be considered futile. Gilbert, 932 F.2d at 61.
The court notes that the federal exhaustion doctrine in the context of regulatory takings claims controls the determination of whether the court can consider the merits of the Blairs' federal constitutional claims. In regard to the Blairs' State constitutional claims, state law controls on the issue of whether and how the exhaustion doctrine applies. There are few distinctions between the Federal and Massachusetts exhaustion doctrines.
The exhaustion doctrine, specifically as it applies in the context of actions for declaratory relief brought pursuant to c. 231A, is based largely on the desirability of knowing the exact extent of a regulation, as applied to the party asserting the takings claim, before attempting to adjudicate whether such regulation effects an unconstitutional taking.Williamson, 473 U.S. at 186. In order to know the extent of a regulation, it is critical that the agency whose actions are being challenged has had the opportunity to issue a "final decision" regarding acceptable uses of the property subject to the regulation. Id. In all of the federal cases cited by the Commonwealth, and following an exhaustive independent search by this court, it appears that the exhaustion doctrine is always employed to bar unripe takings claims where the party alleging that a taking has occurred has initiated a lawsuit prior to seeking redress before the agency.
This court is unaware of any case explicitly holding that exhaustion requirements are waived in the event of an agency enforcement action, such as the case at bar. Nonetheless, there is support, both within the dicta of the cases discussing the exhaustion doctrine, and from the basic purposes underlying the doctrine, that where the agency initiates an enforcement action, a defendant should be able to seek declaratory judgment on the validity of the agency action. In Woods v. Newton, 349 Mass. 373, 376 (1965), the court noted, without explicitly so holding, that "[o]wners [of land] who have been denied permits or who, being about to make a new use of their land, are threatened with enforcement proceedings, are in dispute with the public officials concerned. Such a dispute is an controversy [for the purposes of invoking judicial review pursuant to] c. 231A. . . ." Woods, 349 Mass. At 376; See also Stop Shop Companies, Inc. v. Board of Registration in Pharmacy, 394 Mass. 1008, 1009 (1985) (declaratory relief improper where no "actual controversy" existed as result of either the denial of a permit or a threat of enforcement proceedings). This language implicitly recognizes that an enforcement action is essentially the same as a denial of a permit when considering whether an agency decision is final and forms an "actual" controversy capable of being brought before this court. In considering the issue of ripeness, the forefront of the court's concern should be focused on whether there is a final agency action regarding the application of regulations to a particular piece of property. See Williamson, supra, at 190. See also Gilbert, supra, at 49, where in discussing applicability of the statute of limitations to the plaintiff's claims, the court noted:
[t]he effected party may place himself in the posture of a defendant in an enforcement action by noncompliance with the ordinance at any time. His noncompliance and the consequent enforcement action will provide a vehicle for him to challenge the constitutionality of the provision.
It is undisputed here that the Blairs did not avail themselves of the variance procedure to achieve compliance with the WPA. However, the Commonwealth is the party that has brought this matter to the court in the form of an enforcement action seeking injunctive relief, in essence that the Blairs should be required to return their property to the condition it was in prior to the modifications at issue. In other words, the Commonwealth has made a final determination as to what the WPA requires of the Blairs, and in the absence of the Blairs' right to seek a variance, the Commonwealth is asking for this court to enforce that determination.
The court reaches the merits of the takings claims at issue here, specifically because the exhaustion doctrine does not apply to bar constitutional challenges to a regulation when the government seeks to enforce that regulation in court against an individual. Moreover, instances exist where the court may declare the rights of the parties even where exhaustion may have technically been required. Circumstances where the exhaustion of administrative remedies is not required include instances where the controversy at issue has a public interest beyond the immediate parties. See Massachusetts Retired Police Firefighters Assn., Inc. v. Retirement Bd. of Belmont, 15 Mass. App. Ct. 212, 218 (1983). Whether the WPA is constitutionally valid on its face, an issue that has yet to be decided by the Massachusetts courts, has significant impact not only on other landowners whose property is within the buffer zone of the watersheds protected by the Act, but also on the approximately two million Massachusetts residents that depend upon the enforceability of the Act for the protection of their drinking water supplies.
IV. The Merits of the Takings Claims:
The Blairs cast their takings claims as both facial and as-applied, and they argue under both the U.S. Constitution and the Massachusetts Constitution. As such, the court will address them in consideration of the separate sources of law for their arguments.
A. Takings Claims under the U.S. Constitution:
It is well settled that a federal or state governmental regulation may constitute a compensable "taking" if that regulation goes "too far", even though the regulation does not amount to an actual physical occupation of a claimant's property.; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922); U.S. Const. Amend. V and XIV. It is clear that where a regulation deprives a property owner of all economically viable use of his property, a "categorical" taking per se is accomplished, and compensation must be paid. Lucas v. South Carolina Coastal Council, 505 U.S. 1015 (1992). Contrary to the defendants' assertions, the undisputed facts show that this is not the case here (see discussion of as-applied challenge below regarding economic impact). Since there is no categorical taking through the denial of all beneficial use of the property, it is necessary to examine three primary criteria to determine if the WPA nonetheless goes too far as applied to the Blairs property: (1) the character of the government action; (2) the economic impact of the regulation on the claimant; and (3) the extent to which the regulation has interfered with distinct, investment backed expectations.Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978); Lucas v.South Carolina Coastal Council, 505 U.S. 1003 (1992); Leonard v. Town of Brimfield, 423 Mass. 152 (1996).
The Blair's try to cast the nature of governmental action with the supplemental proposition that the WPA prohibitions effecting their land amount to an actual physical occupation of their property, i.e., an exercise of the government's powers of eminent domain for which the government must pay. See e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982). They argue that, in essence, the Commonwealth is forcing them to convert their property into a natural water filter. The court finds little merit to this contention, given that the WPA's restrictions cannot be viewed in a vacuum without regard to its purpose to protect the public health and welfare. See Lucas, 505 U.S. at 1029 ("[t]he owner of a lakebed, for example, would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others' land.").
In order to survive the Commonwealth's motion as to their facial challenge to the WPA, it is necessary to consider whether the statute, by its mere enactment, effects a taking without just compensation. See e.g., Gilbert, 932 F.2d at 56, citing Hodel v. Virginia Surface Mining Reclamation Ass'n., Inc., 452 U.S. 264, 295 (1981). In order for the statute to effect a taking on its face, it must deny the property owner economically viable use of his land. Id., at 295. A statute that promotes a permit and variance procedure that possibly allows uses otherwise flatly prohibited by the statute on its face cannot effect a taking per se. Gilbert, 932 F.2d at 56, citing United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). Because the WPA has a permit procedure by which the Blairs could have sought relief, the WPA does not effect a taking because the Blairs should have sought such a permit.
In regard to the Blairs' as-applied taking claims, an application of the three criteria listed above also indicates that the WPA does not effect a taking.
1. The Character of the Government Action:
In construing the character of the government action, it is necessary to balance the liberty interest of the owner of the property with the nature and purpose of the government action. See e.g., Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1176 (Fed. Cir. 1994). A court should examine whether the interest or right that the challenged regulation effects is, under common law principles such as the nuisance doctrine, available to the owner of the property or to the government.Lucas, 505 U.S. at 1029; Loveladies, 28 F.3d at 1182. A nexus must exist between the public purpose of the challenged regulation and the means by which the regulation seeks to accomplish that purpose. Id. The regulatory means must be "roughly proportional" to furthering the state interest. Del Monte v. Monteray, 95 F.3d 1422, 1430 (9th Cir. 1996).
The purpose of the WPA is to ensure the quality of public drinking water supplies, including the water resources of the Quabbin Reservoir which the Ware River and Demond Pond directly feed. c. 92, § 105. There can be little dispute that this is a legitimate, if not compelling, government interest. Restriction of wetlands development for similar reasons has been upheld by courts, holding that the protection of groundwater is a valid public interest. See, e.g., Turnpike Realty Co. v. Dedham, 362 Mass. 221, 227 (1972); United States v. D'Annolfo, 474 F. Supp. 220 (D.Mass. 1979). Recognizing that activities closest to the water's proximity would have the most significant impact on the relationships between land use and water quality, the legislature created the two hundred foot buffer zone as the means to protect the integrity of the land that possesses the greatest potential impact on the public water supplies. G.L.c. 92, § 107A. This means of regulating land use near the effected watersheds, by a prohibition on development subject to possible exemptions and variances for uses that would not substantially effect water quality, is a reasonable one to achieve the overall purpose of protection of water quality. It is particularly reasonable in light of the availability of variances for uses that will not substantially effect water quality.
The Blairs maintain that the right to develop their beachfront land is ancillary to ownership of the land, and that this right cannot be alienated by a regulation without compensation. The court disagrees. The rights of a property owner to utilize lakefront property comes with significant limitations when the regulatory concern is for the health and welfare of society. Conduct effecting a public resource, such as public water supplies, that could be actionable at common law by under a public nuisance theory, may be aptly regulated, or at minimum, be regulated with a decreased risk of having the regulation adjudicated an unconstitutional taking. See Keystone Bituminous Coal Ass'n. v. DeBenedictis, 480 U.S. 470, 492 n. 22 (1987). It could hardly be argued that an unreasonable interference with the use and enjoyment of a public resource would not be actionable as a public nuisance at common law. The Supreme Judicial Court has, at minimum, suggested that a public nuisance could exist where a landowner places fill in a great pond. See Weinstein v. Lake Pearl Park, Inc., 347 Mass. 91, 95 (1964). The character of the government action here, therefore, is much akin to prohibiting acts which may have been prohibited, at least in part, at common law prior to the enactment of the WPA in 1992.
The Supreme Court has directed lower courts to look to background common law principles of property and nuisance law when considering if total deprivations of value require compensation. Lucas, 505 U.S. at 1029. The court, however, is not faced with such a deprivation here. Nonetheless, the court considers such principles helpful in considering both the nature of the government's restrictions and the Blairs' property interest subject to those restrictions.
The Blairs further argue that they enjoy no reciprocity of benefit from the WPA restrictions, and therefore those restrictions effect a taking as applied to their property. They assert specifically that they bear all of the burdens with none of the benefits of the statutory protections because they do not use the drinking water from the Ware watershed. The court finds this conclusory and without merit. The fact that the WPA "has a more severe impact on some landowners than on others . . . does not mean that the law effects a taking. Legislation designed to promote the general welfare commonly burdens some more than others". Moskow v.Commissioner of Environmental Management, 384 Mass. 530, 534 (1981), citing Penn Central, supra, 438 U.S. at 133.
The court notes that it is unclear whether the Blairs use the water from the watershed or not. They argue, in their memorandum that they have a well on the property which draws water from a source different from the watershed that the Act is designed to protect. There is no admissible factual support for this contention. The court merely notes that there may be a direct reciprocity of benefit.
In Moskow, a landowner's property was subject to a flat prohibition on dredging or filling of wetlands, and he alleged that this constituted a compensable taking. The trial judge found as a fact that the area receiving the benefit of such restriction was "an area downstream and far removed from the locus." Moskow, 384 Mass. at 534. The Supreme Judicial Court found this to be irrelevant in holding that no taking had occurred, although noted that the landowner may have received indirect benefits from the restrictions nonetheless. Id., at 535, n. 4.
Based on the foregoing, the court finds and rules that the WPA sets forth reasonable means to accomplish the legitimate ends of water quality protection, and that the Blairs' interests in developing their property on Demond Pond are outweighed by the public purpose at stake here.
2. The Economic Impact of the Government Action:
The second criteria that must be examined under federal takings jurisprudence is the extent of the economic impact on the landowner. Penn Central, supra, 438 U.S. at 130. Specifically, the inquiry is whether the governmental action has deprived the landowner of "economically viable use" of his property. Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). In considering whether any given parcel retains an economically viable use in the wake of government regulation, courts look to the entire parcel to serve as the denominator in measuring the extent of diminution in value. Penn Central, 438 U.S. at 130-131; Moskow, 384 Mass. at 534; FIC Homes of Blackstone, Inc. v. Conservation Comm'n. of Blackstone, 41 Mass. App. Ct. 681 (1996). In order to find that a compensable taking has occurred, the landowner must demonstrate that the entire parcel has suffered a severe diminution in value, i.e., that no beneficial use for the entire property remains. See e.g., FIC Homes of Blackstone, 41 Mass. App. Ct. at 694. The application of this test to the Blairs' claim proves fatal to the claim's merits.
It is undisputed that without the improvements on the property as they currently exist, it would be worth approximately $350,000.00 or more. It is further undisputed that the value of the property with the current beach improvements is $750,000.00. Therefore, at most the property has suffered a diminution in value of less than sixty per-cent of what the Blairs' may have expected from the beachfront improvements. More importantly, prior to the beach and lawn improvements at issue, the Blairs were still able to use their single family home on the property and use the land for recreational purposes with access to Demond Pond. The fact that the beach without the improvements at issue would not be as large as it currently exists in its non-compliant state does not imply that the viable use of the property has been severely curtailed. Although there may be no set formula on how to calculate whether a taking has occurred, the less than overly substantial diminution in value and use here is insufficient, by itself, to constitute a taking.
3. Interference with Distinct, Investment-Backed Expectations:
The Blairs argue, in essence, that because they owned the property prior to the enactment of the WPA in 1992, that they had a reasonable, investment-backed expectation in expanding their beachfront property. They assert that they now cannot make any improvements to their property as of right, and this has interfered with reasonable expectations predicated on the conditions existing at the time they purchased the property in 1977.
To determine what the Blairs' reasonable expectations were with respect to the property, the court's focus in on the use of the property, not its value. See Penn Central, surpa 438 U.S. at 136. In Penn Central, the Court held that because the New York City landmarks law did not deprive the landowner of the use of the land, as a railroad terminal, as it existed prior to the enactment of the landmarks law, the landowner had not been deprived of the primary use of the land, and hence no interference with investment-backed expectations.
Here, prior to the enactment of the WPA, the Blairs were able to use their property for exactly what the undisputed facts demonstrate was their primary purpose: to use the property for the construction of a single-family residence, with a beach, with access to Demond Pond for recreational purposes. Furthermore, when the Blairs purchased the property in 1977, the land was already subject to existing regulatory regimes such as the Wetlands Protection Act that may have limited expansions of the property. G.L.c. 131, § 40. The fact that the Blairs were able to secure an Order of Conditions pursuant to Wetlands Protection Act does not, in hindsight, lead this court to conclude that the Blairs reasonably expected to expand their beach to almost double its original size. This court finds the Blair's expectation to have a beach nearly twice what it was when they purchased the property, along with other 'improvements', in a watershed protection zone, similarly unreasonable.
In sum, as to the Blairs' takings claims under the United States Constitution, based on the nature of the regulatory regime here that contains variance procedures, as well as possible exemptions, the WPA does not effect a taking on its face in violation of the United States Constitution. In addition, the effect of the government action as applied to the Blairs property here does not amount to a categorical taking. Finally, this analysis leads this court to conclude that the relief sought by the government today does not amount to a taking requiring compensation.
V. The Blairs' Takings Claims under the Massachusetts Constitution:
The Blairs further argue that regardless of the application of the federal standards, the government action here is a compensable taking in violation of the Massachusetts Constitution, Declaration of Rights Articles 10 and 49. The Blairs' argument is first predicated on both the different language found in Article 10, and the history surrounding its adoption. The second argument posits that Article 49 requires compensation by expressly authorizing the Commonwealth to take land to protect the human health and environment. For the following reasons, the court refuses to go beyond the Federal standards, and therefore finds that no facial or as-applied taking has been accomplished here in violation of the Massachusetts Constitution.
The Massachusetts Constitution may provide broader protections than its Federal counterpart. See Planned Parenthood League of Massachusetts, Inc. v. Attorney General, 424 Mass. 586, 590 (1997); citing Moe v.Secretary of Admin. Fin., 382 Mass. 629 (1981). Although the Massachusetts Supreme Judicial Court is the final arbiter as to how, if at all, the Massachusetts Constitution differs from Federal standards, courts reviewing state constitutional claims "owe respect to conclusions reached by the Supreme Court interpreting language similar to that in our Declaration of Rights." Planned Parenthood, supra, 424 Mass. at 590.
A. Article 10 Analysis:
The crux of the Blairs' argument that the WPA violates Article X rests on the text of that Article, which provides:
Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection. But no part of property of any individual can, without justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. And whenever public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.
MA. CONST. Declaration of Rights, art. X. (emphasis added). The Blairs conclude that because the drafters chose to use "no part of property" as opposed to merely "property" as in U.S. CONST. amend. V., the Massachusetts Constitution flatly prohibits what has become known in takings jurisprudence as 'partial takings'. Accepting this conclusion would modify any given takings analysis, so that instead of looking to the entire parcel of property as the denominator to determine the effect of government regulation on such property, the court would look only to the portion of property actually effected by the government action. Although this is a well conceived argument, the court refuses to accept this construction of Article 10.
Apart from analyzing the texts of the Constitutions together for fundamental distinctions, the court should pay close attention to the precedents surrounding the provisions of these venerable documents, and the reasoning therein. Planned Parenthood, supra, 424 Mass. at 590.
The Federal takings precedent makes clear that, under federal constitutional review, courts still look to the entire parcel of property to determine the extent of diminution in value of the property, and consequently whether a taking has occurred. Penn Central, supra, at 130.Cf. Loveladies Harbor, 28 F.3d at 1179-1182 (Fed. Cir. 1994).
The Supreme Judicial Court, although never presented with the precise issue here, has held in the takings context that the Constitution of the Commonwealth affords protection parallel to that of the U.S. Constitution. Bromfield v. Treasurer Receiver Gen., 390 Mass. 665, 668 (1983). See also Steinbergh v. Cambridge, 413 Mass. 736, 738 (1992) (plaintiff advanced no argument why Article X should require a takings standard different from that U.S. CONST. amend. V). The specific issue of whether Article X should, because of its text, provide for a different takings test has received indecisive attention. See Yankee Atomic Electric Co. v. Sec. of the Commonwealth, 403 Mass. 203, 216, fn. 2 (1988) (Lynch, J., dissenting).
The Blairs point to the circumstances surrounding the adoption of Article 10, as derived from the Journal of the Massachusetts Constitutional Convention of 1779-1780, in support of their argument. They highlight the sentence "[a]nd whenever the public exigencies require, that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor," pointing out that this was added to the final draft of Article 10 after debate. This changes nothing, and lends no support to the Blairs' argument. The inclusion of this language indicates on its face that where a taking is found, reasonable compensation will be required, just as the Federal standards dictate.
Commonwealth v. Boston Advertising, 188 Mass. 348 (1905), does not compel the result the Blairs request. This case held that a statute prohibiting the erection of advertising signs within view of a public parkway constituted a taking under Article 10. Id., at 353. In addition to the distinguishable nature of this case on factual grounds, this holding was limited. The Supreme Judicial Court specifically stated that "rules intended to prohibit . . . signs dangerous to the physical safety of the public, no doubt would be reasonable within the meaning of the statute and valid." Id. The protection of public drinking water resources protects the physical safety of the public, and therefore falls outside the ambit of the Boston Advertising holding, even if it is otherwise applicable. To hold otherwise would completely upset the balance between public and private interests.
B. Article 49 Analysis:
Article 49 of the Articles of Amendment of the Massachusetts Declaration of Rights provides:
The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.The general court shall have the power to enact legislation necessary or expedient toprotect such rights.
In the furtherance of the foregoing powers, the general court shall have the power to provide for the taking, upon payment of just compensation therefor, or for the acquisition by purchase or otherwise, of lands and easements or other such interests therein as may be deemed necessary to accomplish these purposes.
MA. CONST., art. 49 (emphasis added).
The Blairs conclude that this language indicates that the Commonwealth is duty-bound to acquire interests relevant to the protection of drinking water which the Commonwealth determines to need protection, and that such acquisition requires that the landowners be compensated. As such, this argument implies that any regulatory restriction on land use for the purpose of protecting drinking water equates to an acquisition of property. There is no basis for the contention that the restrictions of the WPA amount to a need for the government to acquire the property, essentially by eminent domain. The Blairs cannot cite any authorities supporting their interpretation of Article 49. This court finds none. In the absence of more compelling authority to adopt this interpretation, this court refuses to do so.
In sum, as to the Blairs' facial and as-applied challenges to the WPA prohibitions under the Massachusetts constitution, this court finds as a matter of law: first, that the WPA does not on its face or as-applied to the Blairs property effect a taking in violation of Article 10 of the Massachusetts Declaration of Rights. Second, that Article 49 does not require the Commonwealth to compensate landowners for restrictions on land development absent a finding of a compensable taking under established takings jurisprudence.
VI. Laches:
The Blairs further argue that the Commonwealth's enforcement action should be barred by the equitable doctrine of laches. Their undisputed factual support for this argument is that one John Scannell, a member of the RCC when the Blairs received their Order of Conditions pursuant to the Wetlands Protection Act, was a full-time employee of the MDC. The Blairs argue, in essence, that the MDC should have been on notice of the proposed plan and did nothing until a substantial portion of the beach work was done, to the prejudice of the Blairs. The court finds no merit to the defendants' contentions.
First, as a matter of law, laches will generally not serve as a bar where a public right is to be enforced. Wang v. Board of Registration in Medicine, 405 Mass. 15 (1989), citing Cullen v. Building Inspector of North Attleborough, 353 Mass. 671, 675 (1968) and Lincoln v. Giles, 317 Mass. 185, 187 (1944). Second, it is undisputed that most of the land alterations at issue here were conducted in the summer of 1997. At the end of July, 1997, the MDC gave notice to the Blairs orally that the work that was being performed was not in compliance with the WPA. A writing to the same effect followed August 27, 1997. This court rules that the Blairs have not met their burden of demonstrating that they were unduly prejudiced by the Commonwealth's timing in bringing this action. An agency must have a reasonable time in which to respond to an apparent statutory violation. The Blairs conducted the work on their property at their own peril, with prior knowledge that the WPA applied to their property as the result of notice letters sent by the MDC.
The Blairs allege that they received letters relating to other properties that "exempted" those properties from the requirements of the WPA, and therefore they reasonably believed that this property on Maple Springs drive was also exempt. This argument is hardly worth discussion; the WPA does not posit a general permit or exemption scheme.
VII. Vagueness and Arbitrariness:
The Blairs further assert that the prohibitions of the WPA are both vague and arbitrary, and thus cannot be enforced. They reason that because the WPA allows landowners of effected parcels to build a single family house, beaches and lawns are "accessory" uses to that single family house. Their conclusion is that any prohibition on the construction or modification of any accessory uses makes the allowance of a single family home illusory. In support of this argument, the Blairs contend that the MDC has held accessory uses to be exempt from the WPA.
The court finds this argument is also without merit. A plain reading of the WPA and its associated regulations reveal that there is nothing vague or arbitrary about them. The Blairs have not offered any evidence to support their argument that the MDC has applied the Act and its exemptions inconsistently or outside the legislative mandate.
ORDER
For the foregoing reasons, the plaintiff's motion for summary judgment is ALLOWED ; the defendants' cross-motion for summary judgment is DENIED . The court hereby ORDERS the Blairs to restore the property to the condition it was in prior to the alterations to the beach and lawn areas of their property on Maple Springs Drive, Rutland, Massachusetts made between July, 1995, and July, 1997.