Agenda - Planning Commission - 10/06/2005

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Z.B. September 10, 2005 -- Page 5 Taking -- Zoning code prohibits houses in coastal flood area Property owner claims all use of property taken Citation: Gore v. Zoning Board of Appeals of Chatham, Supreme Judicial Court of Masxachusetts, No. SJC-09419 (2005) MASSACHUSETTS (07/26/05) ~ Gore owned lot 93 in the Little Beach sec- tion of Chatham. In recent years, a breach formed in the barrier island that separated Chatham Harbor from the open ocean. Because of the breach, Little Beach suffered a significant erosion problem, and became prone to flooding. In 1985, the town placed all of the land within the 100-year coastal flood plain, including lot 93, within a conservancy district. The stated purpose of the district was to conserve natural resources and protect the public, and it barred the construction of new residential dwelhngs. [n 1998, Gove contracted to sell lot 93 contingent on the buyer being able to obtain permits to build a home on the site. However, the zoning officer denied a permit to build a house on the property.' The Zoning Board of Appeals of Chatham upheld the decision. Gore sued the board, and the court ruled in i'ts favor. Gore appealed, arguing a taking had occurred because a single-family home could not be placed on the property. DECISION: Affirmed. No taking occurred. Even if the analysis were limited to lot 93 instead of the entire district, Gore failed to prove the challenged regulation left her property "economically idle." Gove's own expert testified the property was worth $23,000, a value that suggested more than a "token interest" in the property. Moreover, the expert's $23,000 valuation did not take into account nonresidential uses allowed in the conservancy district, either as of right-or by special permit, which she admitted could make the property "an income produc- ing proposmon. The finding that lot 93 retained significant value despite the challenged regulation invalidated Gove's theory: she could not prove a total taking by proving only that one potential use of her property'~ a house site ~was prohibited. To be a taking, the challenged regulation had to deny all economically beneficial use of the land. Consequently, the complete elimination of a ( ' pr ;perty s value was the determinative factor. Here, lot 93 still had significant value. xee alxo: Grenier v. Zoning Board of Appeals of Chatham, 814 N. E. 2d 1154 (2004). .s'ee also: Lin,gle v. Chevron U.S.A. bic., 125 S. Cr. 2074 (2005). 2005 Quinlat~ Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 207