In a recent decision out of the U.S. District Court for the District of Massachusetts, Symes Dev. & Permitting LLC v. Town of Concord, et al., Civil Action No. 21-10556-NMG, 2022 U.S. Dist. LEXIS 4178 (D. Mass. Jan. 10, 2022), Judge Nathanial Gorton balanced the interplay between federal and state law and between federal constitutional supremacy and home rule authority. In doing so, he applied the familiar yet ever-evolving rules of government takings, in particular regulatory takings, to a somewhat novel situation, further developing, and highlighting the tension between, these various legal themes.
In Symes, the plaintiff received approval from defendant Town of Concord Planning Board for the development of an 18-lot subdivision. That approval, however, was conditioned on the plaintiff’s reservation of five of the 18 lots for three years for possible future use by defendant Town of Concord, with the option for the town to purchase or take those lots during that period. Through this reservation condition, the planning board precluded the plaintiff from developing, disturbing, or improving the reserved lots in any manner. The plaintiff filed suit claiming that the reservation condition consituted an uncompensated taking of those five lots pursuant to 42 U.S.C. section 1983. The defendants sought to dismiss the suit, claiming that the reservation could not be considered a taking because the condition was merely temporary. Judge Gorton rejected that argument, noting that courts, including the United States Supreme Court, have repeatedly rejected the argument that government action must be permanent to be a taking. Judge Gorton ultimately held that the plaintiff’s allegations of a taking were sufficient to survive the motion to dismiss, relying on Nollan v. Cal. Coastal Com., 483 U.S. 825 (1987), Dolan v. City of Tigard, 512 U.S. 374 (1994), and Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595 (2013).
It is unconstitutional for the government to take private property without just compensation. See U.S. Const. amend. V; Knight v. Metro. Gov't of Nashville & Davidson Cty., No. 3:20-cv-00922, 2021 U.S. Dist. LEXIS 221927 (M.D. Tenn. Nov. 16, 2021) (“If a city or state government simply requires a property owner to dedicate a portion of her property for public use, without compensation, that would unambiguously be an unconstitutional taking.”) (citing Dolan, 512 U.S. at 384 and Nollan, 483 U.S. at 831). The U.S. Constitution requires not just that there be fair compensation for the “taking” but also that there be a valid public purpose for the taking. See Lingle v. Chevron USA Inc., 544 US 528 (2005). “Traditionally, unconstitutional takings are manifest either through a ‘physical taking’ or a ‘total regulatory taking.’” Symes, 2022 U.S. Dist. LEXIS 4178, at *7–8. However, in Koontz, the courts recognized a third kind of taking: land use exactions. Koontz, 570 U.S. at 612. Frequently, this kind of taking arises in the context of zoning regulations, where a municipal board imposes a condition on the grant of a permit. These types of conditions may be constitutional, provided that there is (1) an essential nexus between some legitimate state interest and the permit condition at issue; and (2) there is rough proportionality between the exaction and the condition—that is, “whether the degree of the exactions demanded by the city’s permit conditions bears the required relationship to the projected impact of petitioner’s proposed development.” Dolan, 512 U.S. at 388.