ROBERTA GOVE [Note 1] vs. ZONING BOARD OF APPEALS OF CHATHAM & another [Note 2] (and a companion case [Note 3]).

MARSHALL, C.J. Roberta Gove owns "lot 93," an undeveloped parcel of land within a "coastal conservancy district" (conservancy district) in Chatham. In 1998, Ann and Donald J. Grenier agreed to buy lot 93 from Gove, contingent on regulatory approval for the construction of a single-family house on the property. Because Chatham prohibits construction of new residences in the conservancy district, the zoning board of appeals of Chatham (board) denied the Greniers a building permit. Gove and the Greniers sought relief in the Superior Court on statutory and constitutional grounds, contending that the prohibition against residential construction on lot 93 did not substantially further a legitimate State interest and that the board had effected a taking of lot 93, without compensation, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights. After a two-day bench trial, a judge in the Superior Court ruled in favor of the defendants on all counts. The Appeals Court affirmed. Grenier v. Zoning Bd. of Appeals of Chatham, 62 Mass. App. Ct. 62 (2004). [Note 4] We granted Gove's application for further appellate review, and now affirm the judgment of the Superior Court. [Note 5]

1. Background. Lot 93 is located in the Little Beach section of Chatham, nearly all of which was acquired by Gove's parents (the Horne family) in 1926. In time, members of the Horne

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family developed a motel, marina, rental "cottage colonies," and a number of single-family houses in Little Beach. The family also sold several lots for development. In 1975, that portion of Little Beach still owned by the Horne family was divided, by the terms of the will of Gove's mother, among Gove and her three brothers. Gove received several lots outright and sixteen other lots in fractional ownership, to be shared with her brothers. Gove also obtained title to at least two cottages. Gove continues to own one cottage in Little Beach; she sold a second in 1996.

Little Beach is part of a narrow, low-lying peninsula, bounded by Chatham Harbor and Stage Harbor, at the extreme southeastern corner of Cape Cod. In recent years, a "breach" has formed in the barrier island that long separated Chatham Harbor from the open ocean. The breach, which is widening, lies directly across the harbor from Little Beach, and a land surveyor familiar with the area testified that Little Beach is now "wide open to the Atlantic Ocean" and prone to northeasterly storm tides. Chatham is known for its vulnerability to storms, and, according to an expert retained by Gove and the Greniers, in recent years Chatham has "as a direct result of the breach" experienced a "significant erosion problem," including "[h]ouses falling into the sea." The same expert testified that, since the appearance of the breach, "there had been a significant rise in the mean high water [near lot 93] along Chatham Harbor." The record indicates that virtually no development has occurred in Little Beach since 1980.

Even before the breach developed, Little Beach was prone to inundation by seawater. Gove testified that the area was flooded by hurricanes in 1938, 1944, and 1954, and by a significant off-shore ocean storm in 1991. None of these storms struck Chatham directly, but in the 1944 hurricane, Stage Harbor experienced a storm surge some nine feet above sea level. The 1954 hurricane damaged buildings and flooded roads in Little Beach. The 1991 storm flooded the area around lot 93 to a depth of between seven and nine feet above sea level, placing most, if not all, of the parcel underwater. The 1944, 1954, and 1991 storms, while significant, were less severe than the

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hypothetical "hundred year storm" [Note 6] used for planning purposes, which is projected to flood the area to a depth of ten feet. According to another expert called by Gove and the Greniers, during storms, roads in Little Beach can become so flooded as to be impassable even to emergency vehicles, and access to the area requires "other emergency response methods," such as "[h]elicopters or boats." The same expert conceded that, in an "extreme" event, the area could be flooded for four days, and that, in "more severe events" than a hundred year storm, storm surge flooding in Little Beach would exceed ten feet.

Lot 93 itself consists of approximately 1.8 acres. The lot is within approximately 500 feet of both Stage Harbor and Chatham Harbor and, according to one expert, is susceptible to coastal flooding "from both the front side and the backside of [the] property." The lot is bisected by a tidal creek, which is prone to flooding as well. The highest point on the property is 8.7 feet above sea level, and much of the property is less than four feet above sea level and technically a "wetland." According to a 1998 map issued by the Federal Emergency Management Agency, lot 93 lies entirely within flood hazard "Zone A," an area defined by its vulnerability to "[s]ignificant flooding" in "hundred year storms." Lot 93 also lies immediately outside "Zone V" where, during a hundred year storm, significant flooding with wave action can be expected.

Gove inherited lot 93 in 1975, when residential development was permitted on the parcel. In 1985, however, the town placed all of the land within the hundred year coastal flood plain, including lot 93, into the conservancy district. The stated purposes of the conservancy district include maintaining the ground water supply, protecting coastal areas, protecting public health and safety, reducing the risk to people and property from "extreme high tides and the rising sea level," and conserving natural resources. The town zoning officer testified that the conservancy district serves to mitigate the "total public safety problem" of coastal flooding, and was specifically intended to protect both residents and public safety personnel.

The bylaw governing the conservancy district bars without

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exception the construction of new residential dwellings. The bylaw does allow specified nonresidential uses, either as of right or by special permit. [Note 7] The zoning officer testified that the nonresidential uses are less likely to create a danger in the event of a flood than are residential structures, in part because structures "ancillary" to homes "tend to break off" in storms and "do a lot of collateral damage to other structures and property," whereas such damage is less likely when nonresidential structures, normally more firmly anchored to the ground, are built.

In the years before the zoning regulations were amended to restrict development in the hundred year flood zone, Gove attempted to sell lot 93. [Note 8] She listed the lot and another she owned with a local broker but "had no offers" on the properties, and she withdrew them from the market. Gove further testified that, whatever its value before the breach developed, lot 93's worth had "plummeted" as a result of the breach and the property "had no value . . . whatsoever" in the early 1990's. By the late 1990's, property in the area had gained value, she said, but the land, she clarified, was still most attractive to those who "have lived in the area" and were unswayed by frequent media reports of storm damage in Chatham.

In 1998, the Greniers contracted to purchase lot 93 from Gove for $192,000, contingent on their ability to obtain permits for a home and a septic system on the site. The Greniers proposed to develop a house on lot 93 on land between 5.3 and 7.0 feet in elevation. They proposed to construct the home raised on pilings, so that the level of the first floor would be

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above the level of a hundred year flood. [Note 9]

A zoning officer denied the Greniers a permit to build a house on the property. The board upheld the decision of the zoning officer. Gove and the Greniers then filed one suit against the selectmen and board and another against the conservation commission of Chatham. A Superior Court judge consolidated the actions, and the parties agreed to a bifurcated trial in which all claims, except for the issue of compensation, would first be tried before a judge, with issues of compensation then tried, if necessary, to a jury.

After a two-day trial during which both parties presented expert testimony, the Superior Court judge found "[i]t is undisputed that [lot 93] lies in the flood plain and that its potential flooding would adversely affect the surrounding area." He found insufficient evidence to support Gove's takings claim, and concluded that she and the Greniers had failed to carry their burden of demonstrating that the board's decision was "legally untenable," "an abuse of discretion, or was arbitrary or capricious."

2. Discussion. At trial, Gove attempted to prove that the board had effected a taking of lot 93 by subjecting the property to land use regulation in a manner that failed substantially to advance legitimate State interests. Lopes v. Peabody, 417 Mass. 299, 303-304 (1994) (Lopes). See Nectow v. Cambridge, 277 U.S. 183 (1928) (invalidating irrational application of zoning ordinance). Gove also contended that the town had deprived her of any beneficial use of lot 93, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (Lucas), and disrupted her reasonable expectation of developing the property. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978) (Penn Central). [Note 10] We discuss Gove's theories in turn.

a. Legitimate State interests. Relying on Lopes, Gove argues

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first that the zoning regulations, as applied to lot 93, failed substantially to advance legitimate State interests. See Greenfield Country Estates Tenants Ass'n v. Deep, 423 Mass. 81, 86 (1996). Lopes followed the Supreme Court's holding in Agins v. Tiburon, 447 U.S. 255, 260 (1980) (Agins), that "[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate [S]tate interests." See Lopes, supra at 305. This term, however, the United States Supreme Court reconsidered the validity of the Agins "substantially advance[s] [S]tate interests" standard "as a freestanding takings test," and concluded that "this formula prescribes an inquiry in the nature of a due process, not a takings test, and that it has no proper place in our takings jurisprudence." Lingle v. Chevron U.S.A. Inc., 125 S. Ct. 2074, 2083 (2005) (Lingle). [Note 11]

In practical effect, Lingle renders a zoning ordinance valid under the United States Constitution unless its application bears no "reasonable relation to the State's legitimate purpose." Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 125 (1978). See Lingle, supra at 2085; id. at 2087 (Kennedy, J., concurring) (discussing nature of due process review). This highly deferential test neither involves "heightened scrutiny," id. at 2085, nor allows a court to question the "wisdom" of an ordinance. Exxon Corp. v. Governor of Maryland, supra at 124. See Ferguson v. Skrupa, 372 U.S. 726, 730-732 (1963); Nectow v. Cambridge, supra at 188; Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). To the extent that Lopes conflicts with Lingle, our earlier decision is, of course, overruled. [Note 12]

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In this case, the evidence clearly establishes a reasonable relationship between the prohibition against residential development on lot 93 and legitimate State interests. [Note 13] Gove offered no testimony meaningfully questioning the conservancy district's reasonable relationship to the protection of rescue workers and residents, the effectiveness of the town's resources to respond to natural disasters, and the preservation of neighboring property. [Note 14] Having addressed Gove's due process concerns, we now consider her takings claim.

b. Takings. While the takings clause is directed primarily at "direct government appropriation or physical invasion of private property," the Supreme Court has "recognized that government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster -- and that such 'regulatory takings' may be compensable under the Fifth Amendment." Lingle, supra at 2081. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 323-324 (2002) ("we do not apply our precedent from the physical takings context to regulatory takings claims"). Not every regulation affecting the value of real property constitutes a taking, for "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change." Lingle, supra, quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922). A regulation "goes too far" and becomes

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a "taking" in any case "where government requires an owner to suffer a permanent physical invasion of her property" or where it "completely deprive[s] an owner of 'all economically beneficial us[e]' of her property" (emphasis in original). Lingle, supra, quoting Lucas, supra at 1019. "Outside these two relatively narrow categories . . . regulatory takings challenges are governed by the standards set forth in [Penn Central]." Lingle, supra.

Gove does not claim that the conservancy district regulations effected a physical occupation of her property, so we discuss, first, why Gove has not shown a "total" regulatory taking under Lucas, supra at 1026. We then address why she has not shown that she is entitled to compensation under Penn Central, supra.

i. "Total" regulatory takings. In Lucas, supra at 1019, the Supreme Court concluded that a land use regulation that denies a plaintiff "all economically beneficial use of her property," constitutes a taking "except to the extent that 'background principles of nuisance and property law' independently restrict the owner's intended use of the property" (emphasis in original). Lingle, supra at 2081, citing Lucas, supra at 1026-1032. The plaintiff in Lucas had paid $975,000 for two residential lots at a time when he was "not legally obliged to obtain a permit . . . in advance of any development activity." Id. at 1006, 1008. Two years later, the State enacted laws that, a State court found, rendered the two parcels "valueless," id. at 1007, leading the Supreme Court to conclude that a total regulatory taking could be established. Id. at 1031-1032.

In Palazzolo v. Rhode Island, 533 U.S. 606, 630-631 (2001) (Palazzolo), the Supreme Court further explained that, to prove a total regulatory taking, a plaintiff must demonstrate that the challenged regulation leaves "the property 'economically idle' " and that she retains no more than "a token interest." Id. at 631, quoting Lucas, supra at 1019. The plaintiff in Palazzolo was unable to prove a total taking by showing that an eighteen-acre property appraised for $3,150,000 had been limited, by regulation, to use as a single residence with "$200,000 in development value." Id. at 616, 631.

Here, the facts are no more indicative of a total taking than those considered by the Supreme Court in Palazzolo. Even if

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we limit our analysis to lot 93, Gove has failed to prove that the challenged regulation left her property "economically idle." [Note 15] Her own expert testified that the property was worth $23,000, a value that itself suggests more than a "token interest" in the property. See Rith Energy, Inc. v. United States, 270 F.3d 1347, 1349 (Fed. Cir. 2001), cert. denied, 536 U.S. 958 (2002) (discussing "token interest"). Moreover, the expert's $23,000 valuation did not take into account uses allowed in the conservancy district, either as of right or by special permit, which she admitted could make the property "an income producing proposition." [Note 16] See note 7, supra. The judge's finding that lot 93 retained significant value despite the challenged regulation invalidates Gove's theory: she cannot prove a total taking by proving only that one potential use of her property -- i.e., as the site of a house -- is prohibited. Lucas, supra at 1019, requires that the challenged regulation "denies all economically beneficial use" of land. See Lingle, supra at 2082

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(in Lucas context "the complete elimination of a property's value is the determinative factor"). [Note 17] We now turn to the Penn Central inquiry.

ii. The Penn Central inquiry. Recent Supreme Court opinions have emphasized that almost all regulatory takings cases involve the "essentially ad hoc factual inquiries" described in Penn Central, supra at 124. See Lingle, supra; Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, supra at 321-326, 335-336 (2002) (temporary moratoria on development); Palazzolo, supra.

The Penn Central framework eschews any "set formula" or "mathematically precise variables" for evaluating whether a regulatory taking has occurred, emphasizing instead "important guideposts" and "careful examination . . . of all the relevant circumstances." Palazzolo, supra at 633, 634, 636 (O'Connor, J., concurring). The relevant "guideposts" include: the actual "economic impact of the regulation" on the plaintiff; the extent to which the regulation "has interfered with" a landowner's "distinct investment-backed expectations"; and the "character of the governmental action." Lingle, supra at 2081-2082, quoting Penn Central, supra at 124. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, supra at 320; Leonard v. Brimfield, 423 Mass. 152, 154, cert. denied, 519 U.S. 1028 (1996). In the end, "the Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation's economic impact and the degree to which it interferes with legitimate property interests." Lingle, supra at 2082.

Considering all of the evidence at trial, we agree with the judge that Gove failed to show that the conservancy district

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regulations had a substantial "economic impact" on her or deprived her of "distinct investment-backed expectations" in lot 93. Lingle, supra at 2082, quoting Penn Central, supra at 124. As an initial matter, Gove's failure to introduce a thorough assessment of lot 93's current value left the judge no basis to conclude that she suffered any economic loss at all. But even if we assume that residential development is the most valuable potential use of lot 93, Gove did not prove that the prohibition against a house on lot 93 caused her a loss outside the range of normal fluctuation in the value of coastal property. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, supra at 332, quoting Agins v. Tiburon, 447 U.S. 255, 263 n.9 (1980) ("fluctuations in value . . . are 'incidents of ownership' ").

Lot 93 is a highly marginal parcel of land, exposed to the ravages of nature, that for good reason remained undeveloped for several decades even as more habitable properties in the vicinity were put to various productive uses. Lot 93 is now even more vulnerable than ever to coastal flooding. Nevertheless, recent appreciation in coastal property (belatedly, and for the time being) has given the parcel some development value. Absent the coastal conservancy district regulations, lot 93 might well be worth more. But this is a new -- and insofar as it relates to residential development, wholly speculative -- value that has arisen after the regulations became effective. Before the enactment of the regulations, Gove had no reasonable expectation of selling the property for residential development, a fact she recognized by removing the property from the market for want of an offer. Nor did Gove have any reasonable expectations of a better outcome as late as the early 1990's, when lot 93 had, by Gove's own estimation, "no value whatsoever." Gove could not have developed reasonable expectations of selling lot 93 for residential development after the early 1990's, by which time the regulations had barred any such development for several years. The takings clause was never intended to compensate property owners for property rights they never had. See Lucas, supra at 1030 (outside "total" regulatory takings context, "the Takings Clause does not require compensation when an owner is barred from putting land to a use that is

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proscribed by . . . 'existing rules or understandings' "); Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195 (1910) (Holmes, J.) ("the question is what has the owner lost"); Leonard v. Brimfield, supra at 155. See also Palazzolo, supra at 641-643 (Stevens, J., concurring in part) (takings claim is "determined by the impact of the event that is alleged to have amounted to a taking"). Gove's argument is not furthered by the Greniers' tentative offer to pay $192,000 for the parcel contingent on receiving approval to build a single-family house, a proposition that all parties reasonably should have known was highly dubious at best, particularly since the regulations did not permit such variances. It is similarly fallacious for Gove to claim that the regulations diminished the value of her property from $346,000 (the appraiser's estimate of the value of lot 93 at the time of the trial if it were suitable for a three-bedroom home) to $23,000 (the appraiser's estimate of the land's "unbuildable" worth).

This is not a case where a bona fide purchaser for value invested reasonably in land fit for development, only to see a novel regulation destroy the value of her investment. Gove did not purchase lot 93; she inherited the property as part of the devise from her mother in which she received other real property of significant value. See note 15, supra. By this we do not suggest that Gove's takings claim is defeated simply on account of her lack of a personal financial investment. See Palazzolo, supra at 634-635 (O'Connor, J., concurring) ("We . . . have never held that a takings claim is defeated simply on account of the lack of a personal financial investment by a . . . donee, heir, or devisee"). Rather, Gove's failure to show any substantial "personal financial investment" in lot 93 emphasizes her inability to demonstrate that she ever had any reasonable expectation of selling that particular lot for residential development, or that she has suffered any substantial loss as a result of the regulations. In these circumstances "justice and fairness" do not require that Gove be compensated. Penn Central, supra at 124, quoting Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962). To the contrary, it seems clear that any compensation would constitute a "windfall" for Gove. See Palazzolo, supra at 635-636 (O'Connor, J., concurring) (discussing nature of test for "reasonableness" of property owner's expectations).

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We add that "the character of the governmental action" here, Lingle, supra at 2082, quoting Penn Central, supra at 124, is the type of limited protection against harmful private land use that routinely has withstood allegations of regulatory takings. It is not at all clear that Gove has "legitimate property interests" in building a house on lot 93. Lingle, supra. The judge found that "it is undisputed that [lot 93] lies in the flood plain and that its potential flooding would adversely affect the surrounding areas" if the property were developed with a house. [Note 18] Reasonable government 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. See Agins v. Tiburon, 447 U.S. 255, 261 (1980) (regulation reducing "ill effects of urbanization"); Penn Central, supra at 138 (regulation restricting alteration of historic landmarks); Goldblatt v. Hempstead, supra (regulation restricting extent of excavation below ground water level); Miller v. Schoene, 276 U.S. 272 (1928) (statute requiring landowner to destroy disease-harboring trees).

Judgment affirmed.