ELR Citation: ELR 20730
(Mass. Aug 21, 1979)

The court upholds a town conservation commission's denial under a local wetlands protection ordinance of a landowners' application to construct an access road over marshlands to a proposed residential subdivision. Plaintiffs claim, inter alia, that the denial constitutes an uncompensated taking of private property. The court first determines that the bylaw is not a zoning regulation and thus is not subject to the procedural requirements of the Zoning Enabling Act. It also rules that the measure is not inconsistent with the state Wetlands Protection Act because the Act allows localities to adopt more stringent controls. Plaintiffs' claim that they were denied due process because the commission was biased against granting the permit application is baseless. The court concludes further that the denial was fully supported by substantial evidence in the record that the proposed road would adversely affect groundwater. Finally, the court rejects the claim that the denial deprived plaintiffs of property without compensation, finding no evidence that alternative uses for the property were not economically viable. The loss of prospective profits caused by the denial does not constitute an unlawful taking of property.

Counsel for Plaintiffs
James M. Falla
121 Main St., West Harwich MA 02671
(617) 432-4343

Counsel for Defendants
Gregor I. McGregor, Richard T. Rook
27 School St., Suite 603, Boston MA 02108
(617) 227-7289

Counsel for Amicus Curiae Commonwealth of Massachusetts
Francis X. Bellotti, Attorney General; Stephen M. Leonard, Malcolm Pittman, Ass't Attorneys General
1 Ashburton Place, Boston MA 02108
(617) 727-2200