250 Alder Lane

The lot at 250 Alder Lane in North Falmouth

The US Supreme Court could decide to review a case concerning a Falmouth town board after attorneys filed a petition for a writ of certiorari at the end of August.

The case stems from a 2012 Falmouth Conservation Commission decision. If the Supreme Court decides to hear the case, it could have a national impact on property rights.

In 2012, members of the Falmouth Conservation Commission denied property owner Janice Smyth several variances required to build a small home on Alder Lane. The proposed house was situated on the bank of Wild Harbor within a no-disturbance zone under the Wetlands Protection Act.

The Alder Lane lot had been in Ms. Smyth’s family since 1975 but had never been developed. It was part of a planned residential subdivision called Wild Harbor Estates.

Ms. Smyth sued the conservation commission, alleging a “regulatory taking.” The Fifth Amendment of the US Constitution states that a government entity cannot take private property for public use without just compensation.

Ms. Smyth’s attorney, Brian J. Wall, argued that the conservation commission had essentially “taken” her property when it prevented her from building upon it. The denial of variances significantly restricted the use of the lot, reducing its value, Mr. Wall argued. He asked for the town to compensate his client for the loss in value.

In 2016, a district court jury found in Ms. Smyth’s favor, ordering the town to pay $650,000 in damages—the difference between the value of the lot without a house and the value with the house she had planned to build, according to expert testimony in 2014. The district court also ordered the town to pay $310,000 in interest.

Attorneys representing the Town of Falmouth filed an appeal. In February, the Massachusetts Appeals Court reversed the district court’s judgment, finding that the conservation commission had not “taken” Ms. Smyth’s property without just compensation. The ruling saved the town close to $1 million.

Ms. Smyth’s attorney joined with members of the Pacific Legal Foundation to petition the Massachusetts Supreme Judicial Court for review of the case. The Pacific Legal Foundation provides free legal assistance to individuals who challenge restrictive government regulations.

“Whether it be a restrictive licensing requirement, a law restricting speech, or a regulation denying the use of property, PLF looks for opportunities to move the law in the direction of liberty. Mrs. Smyth’s case is just such an opportunity,” wrote Christopher M. Kieser, an attorney handling the case for the Pacific Legal Foundation.

The Massachusetts Supreme Judicial Court declined to hear the appeal.

“When that petition was denied, we began working on a petition for certiorari to the United States Supreme Court,” wrote Mr. Kieser.

A petition for certiorari requests that the US Supreme Court review a case record from a lower court.


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The Supreme Court is not obligated to grant a petition for a writ of certiorari. The court’s justices receive more than 7,000 cases a year but grant only 100 to 150 writs.

“It is very unusual to get a case in the Supreme Court when the highest court in state declines to hear it,” Town Counsel Frank K. Duffy said.

Pacific Legal Foundation’s petition asks the Supreme Court to settle confusion in the Penn Central standard, a legal test used for deciding whether a regulatory taking has occurred. The Massachusetts Appeals Court used the test to find in favor of the conservation commission. The test instructs the court to assess: the economic impact, investment backed expectations, and the character of the actions of the conservation commission

The appeals court found that “quite significant reductions in value do not necessarily constitute a regulatory taking.” Ms. Smyth’s property value decreased by 91.5 percent as a result of the conservation commission’s decision, according to her petition. The Supreme Court would have to decide, among other questions, whether or not this loss should have been considered an “economic impact” under the first prong of the Penn Central test.

“We hope to use Mrs. Smyth’s case to persuade the Supreme Court to move the law in a direction more favorable to property owners. If that happens, Mrs. Smyth would be a nationwide hero for property rights,” Mr. Kieser wrote.

If the highest court in the nation decides to take on the case, Janice Smyth v. Falmouth Conservation Commission will be the first court case to originate in Falmouth and be heard before the Supreme Court, Mr. Duffy said.

The Supreme Court is not in session at the moment. Sessions begin in early October and last until late June or early July.

Town counsel noted that the town has until October 21 to file opposition to the petition. On September 9, during executive session, the Falmouth Board of Selectmen voted to draft a letter of opposition, Mr. Duffy said. A member of town counsel’s office or Michelle O’Brien, the special counsel who handled the case when it went before the Massachusetts Appeals Court, may draft the opposition.

If the petition is granted, the case would be set for arguments in spring 2020 or fall 2021, Mr. Kieser wrote. If the petition is denied, the court of appeals decision, which found in favor of the conservation commission, will remain. That would be the “end of the road for Mrs. Smyth’s case,” Mr. Kieser said.

(1) comment

Gadfly

What happened to Ms. Smythe was a travesty. I hope the Supreme Court rules in her favor, even though it will mean that the taxpayers in Falmouth will then have to shell out big bucks. Just think, this would not be happening had the ConCom used common sense when making their original ruling.


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