COMMONWEALTH vs. CLEALAND B. BLAIR & another. [Note 1]

MILLS, J. This case concerns the enforcement of the Watershed Protection Act (act), St. 1992, c. 36, codified in part at G. L. c. 92, §§ 104 and 107A (as in effect prior to July 1, 2003, the effective date of St. 2003, c. 26, §§ 289 and 290, which repealed the act and inserted the Watershed Management Act, G. L. c. 92A 1/2 . See St. 2003, c. 26, § 715). [Note 2], [Note 3]

Upon the Commonwealth's complaint that Clealand B. Blair and Nancy J. Blair (the Blairs) had violated the act by altering the beach and lawn of their waterfront property, the Blairs defended, in part, by claiming that the act was invalid under the Federal and State Constitutions. On cross motions for summary judgment, a Superior Court judge ruled the act constitutional, facially and as applied to the Blairs' property, and determined that no taking had occurred. He ordered the Blairs to restore the altered shorefront.

1. Factual background. In 1977, the Blairs purchased the property at issue, a lot on Demond Pond (locus), in the town of Rutland. When they purchased it, the only improvements were a "camp house," some lawn, and a beach area. For approximately seventeen years the Blairs used the property for recreational purposes. In September, 1994, they applied to the town for

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permits to demolish the camp house and build a new house. The permits issued, and the new house was built. In June, 1995, desiring to expand the existing lawn and beach areas, they filed a notice of intent with the Rutland Conservation Commission (RCC), seeking an order of conditions authorizing the work. See G. L. c. 131, § 40. On July 18, 1995, the RCC issued an order authorizing the expansion work on the existing lawn and beach. [Note 4] Between July, 1995, and July, 1997, the Blairs performed work on their property, including enlarging the lawn; enlarging the shoreline opening of the beach from approximately sixty feet to 120 feet; clearing trees and other vegetation from the shorefront area; excavating, filling, and grading sand and soil, including the removal of twelve inches of topsoil from the beach area; placing twelve additional inches of sand on the beach; building a retaining wall seventy-five to eighty-five feet long and at least thirty inches in height; and placing a three-foot wide, eighty-foot long brick walkway through the lawn area. The Blairs never sought a variance from the requirements of the act.

The water from Demond Pond flows into the Ware River and, through the river, into the Quabbin Reservoir, a major source of drinking water for the greater Boston area. We shall note other facts as necessary.

2. Statutory and regulatory framework. The act prohibits "alteration[s]" within 200 feet of the bank of a "surface water[]" in designated "watersheds." G. L. c. 92, § 107A(a). The act defines alterations to include "excavating, filling or grading" or "changing of run-off characteristics." G. L. c. 92, § 104. The act exempts construction of a single family dwelling on a pre-existing lot, but provides that "[w]herever possible there shall be no alterations within the area regulated." G. L. c. 92, § 107A(h). The act also exempts extensions to structures lawfully existing in 1992, provided those extensions do not substantially change or enlarge the structure or "degrade the quality of the water in the watershed." G. L. c. 92, § 107A(c).

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The act contains provisions by which the landowner can request, and the Metropolitan District Commission (MDC or agency) can issue, a variance "from the provisions of [§ 107A]." G. L. c. 92, § 107A(l). [Note 5] The agency is directed to enforce the provisions of the act (see G. L. c. 92, § 110) and, after consultation with the Department of Environmental Protection, to issue regulations, which appear at 350 Code Mass. Regs. §§ 11.00 et seq. (1994) (regulations). G. L. c. 92, § 108.

3. The enforcement action, defenses, and counterclaims. In a relatively simple complaint, the Commonwealth alleged that the Blairs violated the act by making alterations within the watershed, and requested a restoration order. As relevant to this appeal, the Blairs, by answer, affirmative defenses, and counterclaim, asserted that: (1) the alteration of the locus was exempt under the statute; (2) the Commonwealth's action was barred by laches; and (3) the act and regulations were void for vagueness and were unconstitutional under both Federal and State Constitutions because they effected a taking of private property without just compensation. The Blairs sought damages and a declaration as to the unconstitutionality of the act, or, at a minimum, the exemption of the locus from the act.

The Commonwealth moved for summary judgment on its claim that the Blairs had violated the act and on the exemption and constitutionality issues raised in the Blairs' counterclaim. The Blairs moved for summary judgment on the Commonwealth's statutory claim and on their counterclaims. On the statutory claims, the judge determined that the Blairs' alterations amounted to a violation of the act and that the exemptions in the act did not apply to the alterations. The judge found the Blairs' constitutional challenges to the act ripe for adjudication and determined that the act was not facially invalid. [Note 6] As to the Blairs' as-applied takings claims, the judge concluded that no taking under the Fifth Amendment to the United States Constitution occurred because therewas

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no categorical taking [Note 7] and the act survived the three-prong test of Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978) (Penn Central) [Note 8]; no taking occurred under art. 10 of the Massachusetts Declaration of Rights, as the State constitutional analysis parallels the Federal; and art. 49 of the Amendments to the Massachusetts Constitution provided no independent basis for relief. The judge further determined that the action was not barred by the doctrine of laches and that the act and regulations were not void for vagueness or arbitrariness. Concluding further that the Blairs had not offered any evidence to support their argument that the MDC had applied the act and its exemptions inconsistently or outside the legislative mandate, the judge ordered the Blairs to restore the locus to its pre-alteration condition.

On appeal the Blairs argue that the act is invalid under the Federal and Massachusetts Constitutions; that the Commonwealth's action is barred by laches; and that the act and regulations are void for vagueness. [Note 9]

4. Analysis. (a) Ripeness of the Federal takings claim. [Note 10] As we have discussed, see notes 6 & 7, supra, the Blairs have waived their claim that the act effects a categorical taking of the locus under the Federal Constitution. Unlike the motion judge,

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we conclude that, because the Blairs failed to utilize the variance provision of the act, [Note 11] their taking claim under the Penn Central test, see note 8, supra, was not ripe. Generally, a regulatory taking claim is not ripe until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Daddario v. Cape Cod Commn., 425 Mass. 411, 414, cert. denied, 522 U.S. 1036 (1997), appeal after remand, Daddario v. Cape Cod Commn., 56 Mass. App. Ct. 764, 768-770 (2002), cert. denied, 540 U.S. 1005 (2003), quoting from Williamson County Regional Planning Commn. v. Hamilton Bank, 473 U.S. 172, 186 (1985). See Wilson v. Commonwealth, 413 Mass. 352, 356 (1992); FIC Homes of Blackstone, Inc. v. Conservation Commn. of Blackstone, 41 Mass. App. Ct. 681, 690 n.13 (1996). The Supreme Court has stated that "it is impossible to determine the extent of the loss or interference until the [government entity] has decided whether it will grant a variance from the application of the regulations." Williamson County Regional Planning Commn. v. Hamilton Bank, 473 U.S. at 191 n.12. A final decision is an essential element of a regulatory taking claim:

"It follows from the nature of a regulatory takings claim that an essential prerequisite to its assertion is a final and authoritative determination . . . . A court cannot determine

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whether a regulation has gone 'too far' unless it knows how far the regulation goes."

MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 348 (1986).

In Palazzolo v. Rhode Island, 533 U.S. 606, 620-621 (2001), the Supreme Court recently affirmed the Federal requirements for ripeness:

"Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner's first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established."

In essence, a claim is not ripe until the landowner has exhausted available administrative remedies and the agency has made a final decision. Because the agency has not made a final determination, on a variance application, of the extent of allowed alteration, the Blairs' as-applied taking claim was not ripe. The motion judge equated enforcement with a permit denial, ruling that the Commonwealth's enforcement action constituted a final determination of the act's requirements. While this might be true in some circumstances, see, e.g., the "futility exception" to the exhaustion requirement, Daddario v. Cape Cod Commn., 56 Mass. App. Ct. at 770, and cases cited, it is not the case here. The enforcement action at issue here did not necessarily indicate what the agency's final determination would be after considering a variance application and applying the variance regulations to the locus.

As provided for in G. L. c. 92, § 107A(l), the variance process gives landowners an opportunity to rebut the statutory presumption that alterations in the waterfront area would be harmful to drinking water quality. Before granting or denying a

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variance allowing some or all of the proposed alterations, the agency is to consider several factors, including possible mitigating measures. This kind of factual development is not possible where the defendant has simply gone forward without first applying for a variance. Thus, the taking claim is premature. A decision on a variance application, not an enforcement action, would show with finality the extent of the restrictions applied to the locus.

(b) The art. 10 takings claim. As the Blairs acknowledge, the Supreme Judicial Court, to date, has evaluated takings claims under the Federal analysis. See Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 19-20 (1979); Moskow v. Commissioner of Envtl. Mgmt., 384 Mass. 530, 533 (1981); Steinbergh v. Cambridge, 413 Mass. 736, 741-744 (1992), cert. denied, 508 U.S. 909 (1993); Lopes v. Peabody, 417 Mass. 299, 304 (1994); Daddario v. Cape Cod Commn., 425 Mass. at 415-418. The Blairs also correctly note that the Supreme Judicial Court has mentioned, without decision, the question whether art. 10 grants a property owner greater protection than the owner has under the Fifth and Fourteenth Amendments to the United States Constitution. See Lopes, supra at 300 n.2. That said, the Blairs argue that, under an art. 10 analysis, the act effected a categorical taking of the locus notwithstanding their concession (see note 7, supra) that no such taking occurred under the United States Constitution. The crux of the Blairs' argument rests on the text of art. 10. [Note 12] The Blairs urge that we construe the phrase "no part of the property" in art. 10 to mean that, in examining

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the extent of their economic loss, we should consider only that portion of the locus restricted by the act, rather than the locus as a whole. Contrast, e.g., Moskow v. Commissioner of Envtl. Mgmt., 384 Mass. at 533. [Note 13] Thus, the Blairs argue, there has been a categorical taking of the portion of the locus that was the subject of the enforcement action.

While this may be an interesting theory, [Note 14] the Blairs' argument is prematurely asserted on the facts of this case. The matter was no more ripe than the Federal taking claim discussed supra, due to the Blairs' failure to utilize the variance provision in the act. [Note 15], [Note 16]

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(c) The art. 49 claim. The Blairs argue that the act fails expressly under art. 49 of the Amendments to the Massachusetts Constitution, as amended by art. 97 of the Amendments. [Note 17] Because the Commonwealth has the constitutional authority, in furtherance of the people's right to a clean environment, to provide for the taking of land (and payment of "just compensation"), the Blairs argue that: (1) the authorization extends to easements; (2) the act specifically authorizes the MDC to expend funds to acquire interests in land; (3) the restrictions of the act upon their land are, effectively, in the "nature of easement"; and (4) they should be compensated therefor.

The judge correctly rejected the argument that the Commonwealth is duty-bound to acquire interests related to the

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protection of drinking water. The Blairs essentially argue that, because art. 49 authorizes the Commonwealth to acquire "lands and easements" to protect environmental quality, the Commonwealth now may only seek to protect the public interest in environmental quality by means of acquiring property interests, rather than through regulation that stops short of a taking under the Fifth Amendment or art. 10. The Blairs do not cite to authorities supporting their interpretation of art. 49 and, like the Superior Court judge, we find none and refuse to adopt the Blairs' interpretation in the absence of more compelling authority.

(d) Laches. The Blairs argue that the Commonwealth's enforcement action should be barred by the equitable doctrine of laches. Their support for this argument is the undisputed fact that John Scannell, a member of the RCC at times relevant to the issuance of its order of conditions under the Wetlands Protection Act, G. L. c. 131, § 40, was at the same time a full-time employee of the MDC. The Blairs argue, in essence, that the MDC had constructive notice of their proposed project and did nothing until a substantial portion of the beach work was done, to their prejudice. We agree with the motion judge, who found no merit to the argument.

First, as matter of law, laches will generally not serve as a bar where a public right is to be enforced. See Wang v. Board of Registration in Med., 405 Mass. 15, 20 (1989), citing Cullen v. Building Inspector of N. 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 performed in the summer of 1997. At the end of July, 1997, the MDC gave verbal notice to the Blairs that the work that was being performed was not in compliance with the act. A writing to the same effect followed on August 27, 1997. The judge was correct in ruling 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 the locus at their own peril, with prior knowledge that the act

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applied to the locus as the result of notice letters sent by the MDC. [Note 18]

5. Conclusion. The judgment shall be modified to dismiss the Blairs' counterclaim insofar as it alleged an as-applied taking under the Federal and Massachusetts Constitutions and to declare that the Blairs are not entitled to the relief they seek as to the exemption of the locus from the act and the facial validity of the act and regulations. [Note 19] As so modified, the judgment is affirmed.

So ordered.