AMERICO LOPES, trustee [Note 1], VS. CITY OF PEABODY

IRELAND, J. This appeal concerns damages for the city of Peabody's (city's) temporary regulatory taking of Americo Lopes's property through an overly restrictive zoning provision on part of his lot. During the ten years since the commencement of

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Lopes's original action to invalidate the zoning provision as it applied to him, this case has been before the Land Court, Superior Court, Appeals Court, this court, and the United States Supreme Court. The new issues raised in this appeal are whether Lopes is entitled (1) to be reimbursed for real estate taxes paid during a temporary regulatory taking of his property; and (2) to receive prejudgment interest on an award of damages for the temporary loss of the use of his property when the jury were already instructed to include interest as part of the damage award. We reverse in part, and affirm in part. We conclude that Lopes is entitled to the same reimbursement of real estate taxes that he would receive if his land had been taken by eminent domain but that he is not entitled to additional prejudgment interest. We remand the case to the Superior Court for proceedings consistent with this opinion.

1. Background and history. This case is factually and procedurally complex. See Lopes v. Peabody, 417 Mass. 299, 300302 (1994) (Lopes 1). In December 1989, the plaintiff, as trustee of the 841 Lake Realty Trust, commenced an action in the Land Court pursuant to G. L. c. 185, s.1 (j 1 1/2), and G. L. c. 240, s. 14A, to challenge the validity of a section of the Peabody zoning ordinance (s. 4.3.4) that restricted the use of his land [Note 2]. The zoning ordinance at issue established a wetlands conservancy district (district) in various parts of the city, including land that abuts Devil's Dishfull Pond, a great pond. The plaintiff's land, which he acquired in 1981 - six years after the city had adopted the challenged zoning provision - was located, in large measure, within the district [Note 3]. The elevation of all but a small portion of the lot was below the 88.5 foot contour of the district. After the city refused the plaintiff's request to reduce the minimum elevation requirement, the plaintiff sought redress in the Land Court.

Following a trial, the Land Court found that the city's determination of 88.5 feet as the minimum permitted elevation in the district at Devil's Dishfull Pond was a valid exercise of

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legislative discretion, was not arbitrary or unreasonable, and was enforceable as applied to the plaintiff's lot. Accordingly, the Land Court ruled that there had been no taking of the plaintiff's land for which he was entitled to compensation.

On appeal, the Appeals Court, in an order and unpublished memorandum pursuant to its rule 1:28 ( 32 Mass. App. Ct. 1124 [1992]), affirmed the Land Court's decision. We then denied the plaintiff's application for further appellate review ( 413 Mass. 1105 [1992]), and the plaintiff petitioned the Supreme Court of the United States for a writ of certiorari. On March 22, 1993, the Supreme Court granted the writ, vacated the judgment entered in the Land Court, and remanded the case to the Appeals Court for further consideration in light of the Court's decision in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Lopes v. Peabody, 507 U.S. 981 (1993). In Lucas, "the Supreme Court held that a landowner was entitled to compensation for a taking when a zoning regulation effectively prohibited all economically beneficial use of the land, unless the prohibition could be independently justified under principles of . . . nuisance or property law." Lopes I, supra at 300.

Following remand to the Appeals Court, we granted the plaintiff's application for direct appellate review. In Lopes I, supra at 304, we discussed the factors a court must consider to determine whether there has been a regulatory taking of property, i.e., whether application of the ordinance at issue deprived the plaintiff of an economically beneficial use of his land, and remanded the matter to the Land Court to make such a determination [Note 4].

On remand, a Land Court judge found that the 88.5 feet elevation requirement set forth in the zoning ordinance was unnecessary to further or protect the pertinent public interests. The court also found that an 86.6 feet elevation requirement was sufficient to meet the asserted objectives of the city's zoning ordinance. On May 11, 1995, the judge issued an amended judgment that declared that, although there had not been a permanent regulatory taking of the plaintiffs property, "there ha[d] been a temporary taking as recognized in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles[, 482 U.S. 304 (1987)]" (First English). Neither party appealed from the original or the amended judgment.

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Shortly thereafter, this case entered a second phase in which the plaintiff sued to recover damages for the fourteen years that the ordinance had been in effect. On October 4, 1995, nearly five months after the Land Court entered the amended judgment, the plaintiff moved for an "assessment of costs," alleging that he was entitled to reimbursements for his costs ($21,485.08) pursuant to G. L. c. 261, s.s. 1 and 13, and Mass. R. Civ. R 54 (d), 365 Mass. 820 (1974), and the real estate taxes he had paid during the temporary taking ($9,105.23). The Land Court denied this motion, the plaintiff appealed, and this court allowed the plaintiff's application for direct appellate review. We affirmed the Land Court's denial of his motion for costs after concluding that the plaintiffs motion, which we characterized as a motion to alter or amend the judgment under Mass. R. Civ. P. 59 (e), 365 Mass. 820 (1974), was untimely because it had been filed more than four and one-half months after the Land Court entered judgment. Lopes v. Peabody, 426 Mass. 1001, 1001-1002 (1997) (Lopes II). We further noted that the plaintiff's claims for other damages, including reimbursement of real estate taxes, were the subject of a separate action pending in the Superior Court. Id. at 1002 n.3.

On September 5, 1995, trial commenced in the Superior Court on the plaintiffs parallel action for damages resulting from the temporary taking [Note 5]. During redirect examination, the plaintiff's counsel attempted to elicit from his client the amount of real estate taxes that he paid on his property during the period of the temporary taking. The judge sustained the city's objection to this line of questioning. During a bench conference on this issue, the judge stated that "the fact that [the plaintiff] may have paid real estate taxes on the property is not relevant because it [is] not the measure of damages." The judge further stated that if the plaintiff was successful in the lawsuit he would be "compensated for [the] loss of use . . . [b]ut he still has to pay taxes on the property." The judge then permitted the plaintiff to make an offer of proof as to what he had paid the city in real estate taxes during the temporary taking, a total of $9,105.

At the close of the evidence, the judge submitted the case to

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the jury with a verdict slip that requested the jurors to determine the "single sum of money [that] would fairly and adequately compensate the plaintiff for the value of his loss of use of the property in question during the time that the temporary taking [had been] in effect." The jury returned a verdict for the plaintiff in the sum of $15,000, and judgment was entered on September 11, 1995.

On September 14, 1995, the plaintiff moved for a new trial pursuant to Mass. R. Civ. P. 59, 365 Mass. 827 (1974), claiming that the amount of the verdict was inadequate, against the evidence and weight of the evidence, and contravened the law. In support of the motion, the plaintiff claimed that the judge erred in refusing to admit in evidence proof of the real estate taxes he paid during the period of the taking. On September 18, 1995, the judge denied this motion, and the plaintiff filed a timely notice of appeal of the judgment and the decision denying his motion for a new trial.

On July 21, 1998, nearly three years later, the plaintiff filed a motion in the Superior Court pursuant to Mass. R. Civ. R 60, 365 Mass. 828 (1974), seeking relief from the judgment of damages. In this motion, the plaintiff requested that the court amend the judgment and award him prejudgment interest from December 28, 1990, the date he commenced the action for damages. The plaintiff also requested that the court correct a typographical error in the judgment by striking wording that indicated that "the plaintiff [should] take nothing."

On September 3, 1998, after a hearing on this motion, the motion judge concluded that "an award of interest is, in the unique circumstances of this case, a substantive one, in that it is a matter requiring a judicial determination." The judge then declined to reach the merits of this issue because the plaintiff had not complied with the time limits set forth in rule 60 (b). However, as to the other error alleged, the typographical error, the judge ruled that such an error was ministerial and correctable pursuant to Mass. R. Civ. P. 60 (a) [Note 6]. On September 10, 1998, the plaintiff filed a timely notice of appeal from the denial of the motion for relief from judgment. We then transferred the case to this court on our own motion.

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2. Issues on appeal. Given the complex nature of the proceed-

ings to date, it is important to note that only two narrow issues are before this court on appeal: (1) whether the plaintiff should receive reimbursement of the real estate taxes he paid during the temporary regulatory taking; and (2) whether he should be awarded prejudgment interest on the jury award of damages from the date he commenced the action for damages, December 28, 1990.

The parties do not contest the Land Court's determination that a temporary taking occurred during the period from 1981 to 1995. To date, the cases in which we have considered temporary regulatory takings have focused on whether a compensable taking actually occurred, that is whether the challenged ordinance deprived a property owner of all economically beneficial or productive use of the property or interfered with the owner's investment-based expectations [Note 7]. As neither party contests the Land Court's decision, this court proceeds from the assumption that a compensable temporary regulatory taking took place from 1981 to 1995, and that there was no economically beneficial use of the property during that time [Note 8].

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The parties also do not appeal from the jury's $15,000 basic award of damages, or the underlying methodology the judge used to instruct the jury on the damages question. Although the parties do not appeal from this award, we note that the law surrounding the basic measure of damages for temporary regulatory takings is relatively new and far from settled. See Herrington v. County of Sonoma, 790 F. Supp. 909, 913 (N.D. Cal. 1991); Wheeler v. Pleasant Grove, 833 F.2d 267 (11th Cir. 1987), appeal after remand, 896 F.2d 1347 (11th Cir. 1990); Comment, Calculating Compensation for Temporary Regulatory Takings, 42 U. Kan. L. Rev. 201 (1993). Rather than contesting the basic measure of damages, Lopes asks that the real estate taxes paid during the temporary taking and prejudgment interest be added to the jury award. Therefore, we shall consider each of these more technical points in turn.

a. Real estate taxes. Lopes argues that, in addition to the basic damage award, he is also entitled to a refund of real estate taxes that he paid during the temporary regulatory taking. The judge prevented Lopes from presenting evidence of the real estate taxes paid to the jury, and did not consider the tax question separately after the jury returned their verdict. Lopes argues that he is entitled to a tax reimbursement based on that part of G. L. c. 79, s. 12 [Note 9], which provides for real estate taxes as an element of damage in eminent domain cases, and G. L. c. 79, s. 35A [Note 10], the portion of the eminent domain statute that provides

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for a separate determination of the real estate tax once a jury have rendered their verdict on damages.

We conclude that G. L. c. 79, s.s. 12 and 35A, apply to temporary regulatory takings, and that Lopes is entitled to a reimbursement of the real estate taxes paid from 1981 to 1995. If the city had taken the property through the usual eminent domain process, Lopes would have been entitled to a measure of compensation for the taxes he paid while his land was taken [Note 11].

Because one hundred per cent of the value of Lopes's land was taken for fourteen years, principles of basic fairness compel the same type of refund of property taxes that he would receive if his land had been permanently taken. See First English, supra at 318 (" 'temporary' takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation"). Of course, this rule does not apply in those instances where an economically beneficial use of the property remains. See id. at 321 (decision did "not deal with the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like").

Adoption of the rule the city advocates, that a property owner's only remedy is a tax abatement, would lead to inefficiency. Under the city's proposed rule, each year a property owner would have to file a separate application for abatement when the parcel of land was affected by a regulation that could be a taking. In this filing, the landowner would necessarily have to estimate the value of the property; but the valuation of the property would be precisely the issue that the parties would meanwhile contest in a separate takings action. In the instant

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case, the parties contested the valuation of the property for years before various tribunals [Note 12].

We conclude that the landowner whose property has been temporarily taken has the option of filing for an abatement each year, or paying real estate taxes throughout the course of the takings litigation and then receiving a reimbursement in the separate action for damages through the provisions of G. L. c. 79, s.s. 12 and 35A. We remand to the Superior Court to award Lopes reimbursement for the real estate tax he paid, plus interest on that tax.

b. Prejudgment interest. Lopes next asserts that prejudgment interest should be added to the jury award, and that this interest should begin to run from the date he commenced the action for damages, December 28, 1990. Lopes failed to raise the interest issue in his initial appeal. Rather, three years later, on July 21, 1998, Lopes filed a motion under rule 60 to amend the Superior Court judgment to include prejudgment interest. We conclude that the motion was untimely and thus barred.

Rule 60 permits parties to amend final judgments. A rule 60 (a) motion can be raised at "any time" but is restricted to "[c]lerical mistakes in judgments . . . arising from oversight or omission." In this case, the failure to add prejudgment interest was a substantive and not a clerical error and, therefore, beyond the purview of rule 60 (a). The judge determined that prejudgment interest should be calculated by the jury as part of the damage award. [Note 13] This determination was a legal judgment. "An award of prejudgment interest based upon the deliberate choice of the [trial] judge reflects an interpretation of law which,

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even if erroneous, cannot be corrected under Rule 60(a)." Elias v. Ford Motor Co., 734 F.2d 463, 466 (1 st Cir. 1984), and cases cited. Further, the Reporters' Notes accompanying Mass. R. Civ. P. 60 cite with approval a case "holding that failure to consider interest as an element of a judgment is a substantive matter beyond [r]ule 60 (a)." Reporters' Notes to Mass. R. Civ. P. 60 (a), Mass. Ann. Laws, Rules of Civil Procedure at 588 (Lexis 1997), citing Stowers v. United States, 191 F. Supp. 795 (N.D. Ga. 1961).

We recognize that previously we have referred to the calculation of prejudgment interest as a purely clerical matter. In O'Malley v. O'Malley, 419 Mass. 377, 379 (1995), we noted that "(t]he failure to include prejudgment interest in the judgment was a clerical mistake remediable by a rule 60 (a) motion." In O'Malley, there was "no indication" the judge had ever considered the issue of prejudgment interest. Id. at 380. Thus, the failure to consider interest was characterized as an omission that could be corrected under rule 60 (a). In this case, the record indicates the judge considered the interest question and decided that it was to be determined by the jury. His decision involved an undecided issue of Massachusetts law, namely whether the interest calculation provisions of the eminent domain statute apply to temporary regulatory takings. This is a substantive decision not governed by rule 60 (a).

Lopes is also precluded from bringing his motion under rule 60 (b). A rule 60 (b) motion can be used to correct errors of "mistake [or] inadvertence" and must be brought "not more than one year after the judgment . . . was entered or taken." We do not decide whether the decision to send the question of prejudgment interest to the jury can be addressed in a rule 60 (b) motion because Lopes filed his motion three years after the entry of final judgment. Thus, his motion considered under rule 60 (b) is time barred.

Furthermore, as a practical matter, Lopes has received the interest to which he was entitled. The interest provision of the eminent domain statute is applicable to temporary regulatory takings [Note 14]. See First English, supra at 318. Therefore, the judge should have reserved the calculation of prejudgment interest for

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the clerk under G. L. c. 79, s. 37, the eminent domain statute [Note 15]. In Verrochi v. Commonwealth, 394 Mass. 633, 638 (1985), quoting Barnes v. Peck, 283 Mass. 618, 628 (1933), the court interpreted G.L. c. 79, s. 37, as follows: "There is no dispute that the 'date as of which [damages] are assessed' is 'the date of the taking.' " See Hargrove v. Minuteman Regional Vocational Tech. Sch. Dist., 394 Mass. 1010 (1985) (landowner whose property was taken in 1972 and who recovered damages in a 1983 judgment entitled to interest on damages from 1972); Sawyer v. Boston, 144 Mass. 470, 471 (1887) (upholding award of interest from time land taken). Thus, by statute prejudgment interest should be calculated by the clerk after the jury's determination of damages.

However, in this case Lopes requested that the judge instruct the jury to consider interest as part of the damage award [Note 16]. The judge complied. See note 13, supra. Because the instruction was given at Lopes's request, he cannot be heard to complain

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that the interest was improperly calculated. To reach any other result would award Lopes double compensation for interest.

We reverse in part and remand to the Superior Court for an evidentiary hearing to determine the real estate taxes and interest upon those taxes due to Lopes under G. L. c. 79, s.s. 12 and 35A. Lopes is not entitled to additional prejudgment interest and therefore, that part of the Superior Court judgment is affirmed.

So ordered.