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Superior Court
Barnstable, ss
Filed JAN 19 2016
beetle Wiser,
rk
Re: Janice Smyth v. Falmouth Conservation Commission
Barnstable Superior Court Docket No. 2012-00687
1. Plaintiff's Motion for Leave to File Sur-Reply;
2. Defendants’ Opposition to Plaintiff's Motion for Leave to
File Sur-Reply;
. Affidavit of Counsel in Compliance with Superior Court Rule 9A;
- Document List; and
Certificate of Service.
Aw
allSuperior Court
Barnstable, ss
. Filed JAN 19 2016
COMMONWEALTH OF MASSACHUSETIS
Aegis. Be
BARNSTABLE, ss. SUPERIOR-COURTE
NO. BACV2012-00687
JANICE SMYTH,
Plaintiff
v.
FALMOUTH CONSERVATION
COMMISSION AND THE TOWN
OF FALMOUTH,
. Defendants
eS wwe ESS SS SL
PLAINTIFF’S MOTION FOR LEAVE TO FILE SUR-REPLY
Now comes the Plaintiff in the above-entitled matter, Janice Smyth (“Smyth”),
and respectfully moves this Honorable Court for leave to file a Sur-Reply to Defendants’
Reply to Plaintiff's Opposition to Defendants’ Motion for Summary Judgment. In
support of this Motion, the Plaintiff asserts the following:
1. On October 16, 2015, the Defendants served a Motion for Summary Judgment
seeking to judgement in their favor on the Plaintiffs regulatory taking claim.
2. On October 29, 2015, the Plaintiff served her opposition to the Motion for
Summary Judgment.
3. Thereafter, the Defendants sought and obtained leave to file a Reply.
4. On November 20, 2015, the Defendants filed a 5 page Reply brief asserting three
new arguments. The Reply was also supported by an Affidavit of the Town’s
Building Commissioner.5. Smyth seeks leave to file a Sur-Reply in order to respond to the arguments raised
in the Defendant’s Reply.
6. As the non-moving party, Smyth should be afforded the opportunity to respond to
the moving parties’ arguments.
7. Further, the interests of justice will be promoted by allowing the parties to fully
brief the issues and the interests of fairness will be promoted by allowing Smyth
the opportunity to respond to the arguments in the Defendants’ Reply brief.
8. Smyth’s proposed Sur-Reply Memorandum and Affidavit of Michal J. Borselli,
P.E. in support thereof are attached as Exhibit “A.”
WHEREFORE, for all the foregoing reasons, the Plaintiff, Janice Smyth, request
the Court to grant her leave to file the attached Sur-Reply and deem same to be filed.
Dated: December 31, 2015 Respectfully submitted,
For the Plaintiff,
Janice Smyth,
By her Attorney,
Brian J. Wall
BBO # 560063
Troy Wall Associates
90 Route 6A
Sandwich, MA 02563
(T): 508-888-5700
(F): 508-888-5701
bjw@troywallassociates.comEXHIBIT “A”COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss. SUPERIOR COURT
NO. BACV2012-00687
)
JANICE SMYTH, )
Plaintiff )
v. )
)
FALMOUTH CONSERVATION )
COMMISSION AND THE TOWN )
OF FALMOUTH, )
Defendants )
)
PLAINTIFF’S SUR-REPLY TO DEFENDANTS’ REPLY TO PLAINTIFF’S
OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In their Reply Memorandum, the’ Defendants raise three new arguments that the
Plaintiff, Janice Smyth (“Smyth”), does not have “reasonable investment-backed
expectations” and, consequently, her regulatory taking claim must fail. Smyth submits
this Memorandum in response and contends that the Defendants’ arguments fail for the
following reasons:
1, The 1998 Regulations did not prohibit Smyth’s Project;
2. The mere enactment of the 1998 Regulations did not take away Smyth’s
reasonable investment-backed expectations; and
3. Assuming, arguendo, that the 1998 Regulations did prohibit development of
the Property, Smyth’s taking claim remains viable under the U.S. Supreme
Court’s holding in Palazzolo v. Rhode Island, 433 U.S. 606 (2001), and is not
susceptible to adjudication by summary judgment for the reasons argued by the
Defendants.1. Smyth’s Project Is Not Prohibited By The 1998 Regulations,
The Defendants assert that Smyth’s proposed project was prohibited by the 1998
Regulations, specifically FWR 10.30(7)(d)(1)(b), and that Smyth’s expert failed to
consider this Regulation in his report. The Defendants further argue that this alleged
failure is significant because Smyth acquired her interest in the Property after the 1998
Regulations were adopted and, thus, never had a reasonable expectation to develop the
Property. This argument misapprehends the opinion of Smyth’s expert.
Smyth’s expert, Michael J. Borselli, P.E. (“Borselli”), prepared a report which sets
forth, inter alia, (1) a detailed analysis of the application of the 1998 Regulations to the
Property and the proposed project and (2) his conclusion that “the proposed project
would have met the requirements of the Bylaw and the Regulations in 1998.” This
opinion covers all of the 1998 Regulations. Thus, Defendants’ argument regarding FWR
10.30(7)(d)(1)(b) does not go to the sufficiency of Borselli’s opinion, but instead goes to
its weight. Consequently, Defendants’ argument does not raise a question of law, but
instead raises a question of fact that cannot be resolved by summary judgment.
Defendants’ argument is also factually incorrect. Borselli specifically addressed
FWR 10.30(7) in his report and in his analysis when he said:
“... even though a portion of the project was on a portion of the coastal
bank in a v-zone, Smyth could have asserted that her project was eligible
for a permit because that portion of the proposed structure on a bank within
a v-zone is elevated above the v-zone on piles. In my experience
permitting projects in Falmouth, the Commission interpreted the
Regulation such that elevating the structure above the flood plain
resulted in the project being out of the v-zone. The Commission did not
consider piles on the bank elevating the structure to be prohibited by
FWR 10.30(7)(b). If the Commission were to have considered the piles to
2be prohibited, the project could have been modified so as to cantilever the
portions of the structure so that no part of the structure would be on any
part of the coastal bank within the v-zone.” (Emphasis added).
When reviewing Borselli’s opinion, it is important to note the language of the
Regulation at issue:
No project on a coastal bank, or within 100 feet landward of the top of a
coastal bank, in a naturally vegetated condition, unless permitted under
FWR 10.30(5), shall be permitted on:
(b) that portion of a coastal bank ina v-zone;
qd@ 1. that portion of a coastal bank that is within one hundred feet
(100 ft.) of:
b. Salt Marsh.
Although Borselli’s opinion did not expressly mention sub-part (d)(1)(b) of the
Regulation, his discussion of FWR 10.30(7) implicitly addresses its sub-parts, including
FWR 10.30(7)(d)(1)(b). Borselli’s explanation of why the project would not have been
prohibited by sub-part (b) also explains why the project would not have been prohibited
by sub-part (d)(1)(b). The Regulations prohibit projects from being “on that portion of
the bank” that is within a v-zone (sub-part (b)) and/or that is within 100 feet of a salt
marsh (sub-part (d)(1)(b)). Borselli explains that the Commission interpreted the
Regulation to allow pilings on a coastal bank. Thus, a pile-supported structure such as
proposed by Smyth would, under the 1998 Regulations, not be considered to be “on the
bank” and would not be prohibited by FWR 10.30(7)(b) or FWR 10.30(7)(4)(1)(b).In addition, Borselli noted that the project could have been re-designed and
cantilevered so that there would be no structure or piles on the coastal bank and thereby
comply with all sub-parts of FWR 10.30.
Although Borselli’s report sufficiently addresses the 1998 Regulations, Smyth
submits herewith an Affidavit of Borselli in order to make it clear that Borselli’s expert
opinion is that Smyth’s project was eligible for permits under the 1998 Regulations. In
the Affidavit, Borselli confirms his opinion that Smyth’s project was not prohibited by
FWR 10.30(7)(d)(b)(1). See, 4 13.
Borselli further opines in the Affidavit that, since the coastal bank on Smyth’s
Property has been disturbed by human activity, FWR 10.30(7) -- including all its sub-
parts -- is not applicable, and, therefore, does not prohibit Smyth’s project. See, § 14.
Further, Borselli opines in his Affidavit that Smyth’s project is eligible for a
permit under FWR 10.30(9), which allows projects on and within 100 feet of a coastal
bank as long as the stability of the bank is not adversely affected. See, ¥ 15.
Borselli also reconfirms in the Affidavit the opinion he gave in his reports that
Smyth’s project was eligible for a permit under FWR 10.18(7). See, 4] 16-22. This
Regulation was adopted as part of the 1998 Regulations in recognition that the new
setbacks imposed by the 1998 Regulations could pose difficulties for older, smaller lots
created prior to effective date of the Regulations (August 15, 1998), such as Smyth’s
Property, and authorized the Commission to allow reduced buffer zones for such lots.
Borselli opined in his report that Smyth’s Property and project would have been eligible
for treatment under this Regulation and would have satisfied the requirements of this
4Regulation and, as a result, Smyth would not have had to provide any buffer to the
coastal bank. ,
Borselli has further explained and clarified in the accompanying Affidavit that, in
1998, FWR 10.18(7) was interpreted by the Commission as “trumping” other, more
specific provisions of the Regulations. See, 21. Since Smyth’s Property was eligible
for review under, and satisfied the requirements of, FWR 10.18(7), she would have been
afforded flexibility with respect to setbacks, including those set forth in FWR 10.30(7).
Borselli’s opinion generates an issue of material fact as to whether or not the 1998
version of the Falmouth Wetlands Regulations prohibited, or did not prohibit,
development of the Property when Smyth acquired an interest in it in 2001. The
existence of this issue of material fact precludes summary judgment.
2. Assuming Arguendo That Smyth’s Project Was Prohibited By The 1998
Regulations, Smyth’s Taking Claim Would Remain Viable And Not Be
Susceptible to Adjudication By Summary Judgment,
The Defendants argue in their Reply Memorandum that Smyth “was on
constructive notice that she might be denied the opportunity to develop the Property” and
that, “{uJnder such circumstances, [Smyth’s] alleged expectations of development were
not reasonable” and, therefore, “summary judgment must enter in favor of the
Defendants.” This contention is refuted by the holding in Palazzolo v. Rhode Island, 533
U.S. 606 (2001), where the United States Supreme Court held that notice of a restrictive
land use regulation does not prohibit a successive owner from asserting a taking claim.The facts and holding of Palazzolo are highly instructive to this case and warrant
review. In 1957, a corporation that the Plaintiff, Anthony Palazzolo, formed with some
associates purchased land in Rhode Island. After the purchase, Mr. Palazzolo bought out
the other investors and became the sole shareholder. In 1971, Rhode Island created the
Rhode Island Coastal Resources Management Council, which enacted regulations that
prohibited building in wetlands unless there was a compelling public purpose for an
exception. In 1978, the corporation was dissolved for failing to pay its taxes. As a result,
by operation of Rhode Island law, Mr. Palazzolo became the owner of the property.
Mr. Palazzolo thereafter submitted a Proposal to the Coastal Council for
permission to fill eleven of his remaining eighteen acres in order to build a beach club.
The Coastal Council denied the application and the lower courts upheld the denial. On
appeal, the Rhode Island Supreme Court held, inter alia, that Mr. Palazzolo lacked
standing to raise an objection to the regulation because he became the owner of the
property after the enactment of the regulation.
The U.S. Supreme Court reversed. Although the Justices addressed the standing
issue in several separate Opinions, a majority of the Court held that Mr. Palazzolo had
standing to raise the takings claim notwithstanding that ownership of the property was
transferred to him after the effective date of the wetlands regulation. 533 U.S. at 628. In
regulatory taking cases that do not involve a physical invasion of private property, Justice
Kennedy, Justice Thomas, and Chief Justice Rehnquist rejected a "blanket rule" that
would prevent a subsequent owner from asserting a taking claim. 533 U.S. at 627.
Justice O'Connor concurred and explained that the time of ownership should inform the
6Court's investment-backed expectation analysis, but should not bar Mr. Palazzolo’s
takings claim even though his corporation (and not Mr. Palazzolo) was the owner of the
property on the effective date of the regulation. 533 U.S. at 632. Justice Scalia would go
even further. In his view, “the fact that a restriction existed at the time the purchaser took
title ... should have no bearing upon the determination of whether the restriction is so
substantial as to constitute a taking.... [and that a] ... taking ... is not absolved by the
transfer of title." 533 U.S. at 636.
Accordingly, a majority of the U.S. Supreme Court has held that the transfer of
ownership after the effective date of the regulation does not prevent the successive owner
from asserting a takings claim. The U.S. Supreme Court reasoned that, if it were to have
accepted the government’s argument that postenactment transfer of title absolved the
State of its obligation to defend any action restricting land use, no matter how extreme or
unreasonable, “[a] State would be allowed, in effect, to put an expiration date on the
Takings Clause.” Palazzolo at 627. In rejecting the government’s argument, the U.S.
Supreme Court stated: “A State, by ipse dixit, may not transform private property into
public property without compensation.” Id. at 628, citing Webb’s Fabulous Pharmacies,
Inc. c. Beckwith, 449 U.S. 155, 164 (1980). Acquiring title to property after enactment
of the restrictive land use restriction does not preclude the successive owner from
asserting the taking claim. Palazzolo at 627, and see, Taking the Takings Claims: A
Policy and Economic Analysis of the Survival of Takings Claims After Property
Transfer, 36 Conn. L. Review 7 (2003-2004).Thus, the gift of a one-half interest in the Property from Smyth’s father to Smyth
in 2001 and Smyth’s inheritance of the other one-half interest in 2005 does not divest
Smyth of the ability to assert a takings claim even if the 1998 Regulations prohibited
development of the Property. Palazzolo v. Rhode Island, 533 U.S. 606 (2001); and see
Machipongo Land and Coal Co., Inc. v. Com., 799 A.2d 751, 569 Pa. 3 (Pa. 2002).
3. The Penn Central Analysis Is a Balancing Test And No Single Factor Is
Dispositive Of A Takings Claim.
The Palazzolo case is instructive on another aspect of the Defendant’s motion for
summary judgment: It confirms that the Penn Central factors are not elements of a cause
of action but are instead a balancing test and no single factor has dispositive status.
Failure to establish an element to a cause of action is fatal. But failure to establish one of
the Penn Central factors is not fatal, it merely affects the balancing test analysis.
Smyth asserts that she has demonstrated a prima facie case on each of the Penn
Central factors. The Town argues otherwise and contends that Smyth does not have any
reasonable investment-backed expectation and, therefore, lacks a viable taking claim.
This argument is misdirected because, even if Smyth did not have any reasonable-backed
expectations, her claim would still be viable and not be susceptible to summary judgment
because, as Palazzolo instructs, no single Penn Central factor is outcome dispositive.
The Fifth Amendment forbids the taking of private property for public use without
just compensation. This constitutional guarantee is “designed to bar the government
from forcing some people alone to bear public burdens which, in all fairness and justice,should be borne by the public as a whole. Penn Central Transp. Co. v. New York City,
438 U.S. 104, 123-124 (1978) (Emphasis added).
The concepts of “fairness and justice” are not subject to empirical analysis and the
Supreme Court has “eschewed any ‘set formula’ for determining when ‘justice and
fairness’ require that economic injuries caused by public action be compensated by the
government, rather than remain disproportionately concentrated on a few persons.”
Palazzolo v. Rhode Island, 533 606, 633 (2001) citing Penn Central, supra at 124. The
outcome of a takings claim depends upon the particular circumstances of each case. Id.
In reversing the Rhode Island Supreme Court’s decision that Palazzolo lacked
reasonable investment-backed expectations, and hence lacked a takings claim, because
the wetlands regulations predated Palazzolo’s acquisition of the property at issue, Justice
O’Connor wrote in her concurring opinion:
Penn Central does not supply mathematically precise variables, but instead
provides important guideposts that lead to the ultimate determination
whether just compensation is required. ... The [Rhode Island Supreme
Court] erred in elevating what it believed to be “[petitioner’s] lack of
reasonable investment-backed expectations” to “dispositive” status.
Investment-backed expectations, though important, are not talismanic
under Penn Central. Evaluation of the degree of the interference with
investment-backed expectations instead is on one factor that points toward
the answer to the question whether the application of a particular
regulation to particular property “goes too Jar.” (Emphasis added).
see
We also have never held that a takings claim is defeated simply on
account of the lack of personal financial investment by a postenactment
acquirer of property, such as a donee, heir or devisee. Cf Hodel v. Irving,
481 US. 704, 714,-718 (1987). Courts instead must attend to those
circumstances which are probative of what fairness requires in a given
case. If investment-backed expectations are given exclusive significance in
the Penn Central analysis and existing regulations dictate the
9reasonableness of these expectations in every instance, then the State
wields far too much power to redefine property rights upon passage of title.
On the other hand, if existing regulations do nothing to inform the analysis,
then some property owners may reap windfalls and an important indicium
of fairness is lost. As I understand it, our decision today does not revoke
the regulatory backdrop against which an owner takes title to property
Jrom the purview of the Penn Central inquiry. It simply restores balance to
that inquiry. Courts properly consider the effect of existing regulations
under the rubric of investment-backed expectation in determining whether
a compensable taking has occurred. As before, the salience of these facts
cannot be reduced to any “set formula.” Penn Central, 438 U.S. at 1 24.
The temptation to adopt what amount to per se rules in either direction
must be resisted. The Takings Clause requires careful examination and
weighing of all the relevant circumstances in this context. The court below
therefore must consider on remand the array of relevant factors under
Penn Central before deciding whether any compensation is due.
Since no single factor in the Penn Central analysis is outcome dispositive, the
Town is not be entitled to summary judgment even if Smyth did not have any reasonable
investment-backed expectations.
4. The Mere Enactment Of A Wetlands Regulation Does Not Ipso Facto
Quash Investment-Backed Expectations.
The Defendants argue in their Reply Memorandum that “when Plaintiff became
part owner of the Property, the 1998 Regulations had been in place for three years and
proscribed construction projects like that at issue here. Thus, Plaintiff was on constructive
notice that she might be denied an opportunity to develop the Property with a residential
home. Under such circumstances, Plaintiff's alleged expectations of development were
not reasonable.” Defendants’ Reply Memorandum, pgs. 2-3. Smyth disagrees and argues
that this is not consistent with the law of takings claims.
The law recognizes the difficulty of demonstrating that “mere enactment” of
regulations restricting land use results in a taking. Suitum v. Tahoe Regional Planning
10Agency, 520 U.S. 725, 736 (1997). Indeed, before a takings claim can be considered
ripe, a landowner is required to give a land-use authority an opportunity to exercise its
discretion and “may not establish a taking before a land-use authority has the opportunity,
using its own reasonable procedures, to decide and explain the reach of a challenged
regulation” Palazzolo at 620. “As a general rule, until these ordinary processes have
been followed the extent of the restriction on Property is not known and a regulatory
taking has not been established.” Id. at 621, citing Suitum, supra, at 726, and S€e, €.8.,
MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986) ("[a] court
cannot determine whether a regulation has gone ‘too far’ unless it knows how far the
regulation goes"). This “final decision” requirement “responds to the high degree of
discretion characteristically possessed by land-use boards in softening the strictures of the
general regulations they administer.” Id. at 738. The majority of the Palazzolo Court
further confirmed this: ~
A challenge to the application of a land-use regulation, by contrast [to an
eminent domain taking], does not mature until ripeness requirements have
been satisfied ... until this point an inverse condemnation claim alleging a
regulatory taking cannot be maintained. It would be illogical, and unfair,
to bar a regulatory takings claim because of the postenactment transfer of
ownership where the steps necessary to make the claim ripe were not taken,
or could not have been taken, by a previous owner. Palazzolo at 628.
Thus, the mere enactment of the 1998 Regulations, even if they did prohibit
development of the Property, did not effect a taking or take away Smyth’s investment-
backed expectations.
In addition, there is another reason supporting Smyth’s claim of having reasonable
expectations to develop the Property: The 1998 Regulations provided a variance
11procedure. Thus, even if it could have been ascertained that the 1998 Regulations
substantially restricted or altogether prohibited development of the Property, there existed
the possibility to apply for and obtain a variance that would permit development. Under
these circumstances, it cannot be said as a matter of law that Smyth had no reasonable
expectation that she could obtain a variance. Indeed, when Smyth applied for a variance
under the 2008 Regulations, two Commissioners voted in favor of granting her a
variance. See, Administrative Record, Vol. I, pg. 772.
It also notable that Smyth obtained a wetlands permit from the Department of
Environmental Protection for her project. The DEP regulates coastal banks and approved
Smyth’s project. It cannot be said, as a matter of law, that, under these circumstances,
Smyth had no reasonable expectation of developing her Property.
CONCLUSION
WHEREFORE, for the reasons set forth herein, the Plaintiff requests that the
Defendants’ motion for summary judgment be denied.
Dated: December 31, 2015 Respectfully submitted,
For the Plaintiff,
Janice Smyth,
By her
BBO # 560063
Troy Wall Associates
90 Route 6A.
Sandwich, MA 02563
(T): 508-888-5700
bjw@troywallassociates.com
12COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss. SUPERIOR COURT
NO. BACV2012-00687
JANICE SMYTH,
Plaintiff
v.
FALMOUTH CONSERVATION
COMMISSION AND THE TOWN
OF FALMOUTH,
Defendants
SSeS SESS ewe SL
AFFIDAVIT OF MICHAEL J. BORSELLI, P.E.
I, Michael J. Borselli, P.E., under oath, do hereby depose and say the following:
1. I am a Registered Civil Professional Engineer, a licensed Title V Septic
System Inspector, and a licensed Professional Soil Evaluator.
2. I am the President of Falmouth Engineering, Inc., and I perform all the
engineering and affiliated duties for the company.
3. I have been practicing civil engineering for more than 30 years and I have
been involved with the evaluation, design and permitting of more than 1,000
real estate development projects, the majority of which have been in
1Falmouth. I am familiar with state and local laws, bylaws and regulations
that apply to the development of land in Falmouth. I have personally
appeared hundreds of times before Falmouth regulatory agencies including
the Falmouth Planning Board, the Falmouth Board of Health, the Falmouth
Zoning Board of Appeals and the Falmouth Conservation Commission.
. I provided a report and a supplemental report on the feasibility of developing
the property owned by Janice Smyth (“Smyth”) located at 250 Alder Lane in
North Falmouth.
. L have also reviewed certain pleadings filed by the Town of Falmouth and
the Falmouth Conservation Commission in the case entitled Janice Smyth c.
Falmouth Conservation Commission and the Town of Falmouth, Barnstable
Superior Court No. 1272CV00687, including a pleading entitled
Defendants’ Reply to Plaintiff's Opposition to Defendants’ Motion for
Summary Judgment (“Defendants’ Reply Memorandum”).
. The Defendants’ Reply Memorandum asserts that my reports “fail[ed] to
address the 1998 version of FWR_ 10.30(7)(d)(1)(b) which prohibits
construction projects on any portion of a coastal bank located within 100
feet of a salt marsh.”7. I disagree with this assertion; my reports do address the 1998 version of
FWR 10.30(7)(d)(1)(b) and my reports set forth my opinion that Smyth’s
project was eligible for a permit under the 1998 Regulations.
8. On page 3 of my supplemental report, I quote FWR 10.30(7) as follows:
No project on a coastal bank, or within 100 feet landward of the top
of a coastal bank, in a naturally vegetated condition, unless permitted
under FWR 10.30(5), shall be permitted on:
(b) that portion of a coastal bank in a y-zone;
@ 1. That portion of a coastal bank that is within one
hundred feet (100 ft.) of: ... b. salt marsh.
9. My quotation of FWR 10.30(7) includes sub-part “(7)(b)” and sub-part
“MOO.”
10. Thereafter, I state in my report that, notwithstanding the provisions of FWR
10.30(7), it is my opinion that Smyth’s property was eligible for a permit under the
1998 Regulations. By referring to “FWR 10.30(7)”, my statement addresses both
sub-parts of the Regulation -- FWR 10.30(7)(b) and FWR 10.30(7)(b)(1)(d).
11.In the first full paragraph on page 4 of my supplemental report, I stated that:
... Smyth could have asserted that her project was eligible for a
permit under FWR 10.30(7) even though a portion of the
project was on a portion of the coastal bank in a v-zone
because that portion of the proposed structure on the bank
within the v-zone is elevated above the v-zone on piles. In my
experience permitting projects in Falmouth, the Commission
3interpreted the Regulation such that elevating the structure
above the flood plain resulted in the project being out of the v-
zone. The Commission did not consider the piles elevating the
structure to be prohibited by FWR 10.30(7)(b).' If the
Commission were to have considered the piles to be prohibited,
the project could have been modified so as to cantilever the
portions of the structure so that no part of the structure would
be on any part of the coastal bank within the v-zone.
12. The above paragraph explains that Smyth’s project was eligible for approval under
FWR 10.30(7)(b) given the project design and manner in which the Commission
interpreted the Regulation. More specifically, the project was eligible for a permit
because the Commission did not consider the Regulation to prohibit piles on a
coastal bank. By elevating Smyth’s proposed structure on piles such that the
structure was above the flood plain/v-zone, the project would be deemed to be out
of the v-zone and compliant with FWR 10.30(7)(b).
13. The same analysis applies to FWR 10.30(7)(d)(1)(b). By elevating the portion of
the structure above the coastal bank on piles, the project would be not be
considered “on the bank” and, therefore, the project would not be on that portion
of the coastal bank within 100 feet of salt marsh and would comply with FWR
10.30(7)(d)(1)(b).
14. In addition, it is my opinion that the 1998 version of FWR 10.30(7) -- including
both FWR 10.30(7)(b) and FWR 10.37(7)(d)(1)(b) -- is not applicable to Smyth’s
| This interpretation remains the same today and is incorporated into the Regulations at FWR 10.38(4)(d)1 which
allows pile foundations. This Regulation allows open pile foundations such as the one proposed by Smyth.
4property or project and, therefore, does not prohibit her project. The first sentence
of FWR 10.30(7) provides that the provisions of the Regulation are applicable to
coastal banks “in a naturally vegetated condition.” The coastal bank on Smyth’s
property is not in a naturally vegetated condition. The vegetation on the bank has
been disturbed by human activity. The Land Management Report prepared by
BlueFlax Design which was submitted to the Conservation Commission in support
of Smyth’s permit application confirms this:
This 16,500 square foot lot is currently undeveloped, but has been
used as a dumping ground for neighboring properties, with grass
clippings, woody brush, minor construction debris, plant pots, empty
cans and even an old dog house observed. Dumping and
unauthorized cutting of vegetation has degraded the eastern portion
of the property, where development is proposed. See,
Administrative Record, Vol. I, page 102.
I visited the site on December 31, 2015 and I observed that the conditions
described in the Land Management Plan and I confirmed that the disturbed area is
on the coastal bank. Since the coastal bank is disturbed, it is not “in a naturally
vegetated condition” and, therefore, FWR 10.30(7)(b) and FWR 10.30(7)(d)(1)(b)
do not apply and do not prohibit Smyth’s project.
15.Further, it is my opinion that Smyth’s project would have been eligible for a
permit under the 1998 version of FWR 10.30(9). This regulation allowed projects
on, and within 100 feet of, coastal banks provide that the project does not have any
adverse effects on the stability of the bank. Smyth’s project would not adversely
affect the stability of the coastal bank. Although there would be temporary
5impacts to the coastal bank during construction, these impacts could be managed
and would not have any adverse effects on the stability of the coastal bank. Once
the project was completed, it would not have any adverse effects on the stability of
the coastal bank. Therefore, the project was eligible for a permit under FWR
10.30(9).
16.In addition to the foregoing paragraphs regarding FWR 10.30, I explained in my
supplemental report that Smyth’s proposed project would have been eligible for a
permit under FWR 10.18(7).
17.When the 1998 revisions to the Regulations were adopted, the Commission
imposed new requirements that were substantially more stringent than in prior
versions of the Regulations.
18. The new, more stringent requirements would create difficulties for development in
Falmouth, particularly with older, smaller lots. FWR 10.18(7) provides some
relief from these new requirements for older lots.
19.FWR 10.18(7) authorized the Commission to issue a permit for projects on
parcels created prior to August 15, 1998 where no practicable alternative
existed on the parcel that would allow a resource area buffer the width
required in FWR 10.18(8)(a) or (b) for new construction due to site
constraints, provided a resource area buffer was maintained as close aspracticable to those required in FWR 10.18(8)(a) and (b), and in no case less
than 25 feet to the resource areas delineated in FWR 10.18(8)(a) and (b).
20.Smyth’s lot was eligible for consideration under FWR 10.18(7) because it
21.
was created before August 15, 1998. The coastal bank on Smyth’s property
is non-eroding; thus FWR 10.18(a) and (b) did not require any buffer to the
coastal bank. And, in my opinion, Smyth’s project met the “no practical
alternative” provision of FWR 10.18(7). As a result, it is my opinion that Smyth’s
project satisfied the requirements of FWR 10.18(7) and would have been eligible
for a permit.
The Commission interpreted FWR 10.18(7) as trumping other setbacks in the
Regulations. Thus, if a project proposed on a parcel created prior to August 15,
1998, such as Smyth’s, satisfied the requirements of FWR 10.18(7), the
Commission deemed the project eligible for a permit, even if there was another
more stringent setback of general applicability in another section of the
Regulations such as FWR 10.30(7).
22.As further support for this opinion, I note that FWR 10.18(8), which sets forth
setbacks for “new activity on a parcel created on or after August 15, 1998,” has a
footnote that states that “[a]dditional setbacks from the top of a Coastal Bank are
found in FWR 10.30.” There is no such footnote in FWR 10.18(7). This, in myopinion, confirms that FWR 10.18(7) provided flexibility for lots created before
August 15, 1998 and that such lots did not have to comply with the setbacks in
FWR 10.30 if the lot, and the project proposed thereon, satisfied the requirements
of FWR 10.18(7).
23.1t is my opinion, based upon my expertise and based upon my actual permitting
experience before the Falmouth Conservation Commiscion when the 199%
Regulations. were in effect, that Smyth’s project was eligible for a permit under the
1998 version of the Regulations including FWR 10.18(7), FWR 10.30(7)(b), FWR
10,30(7)(d)(1)(b), and FWR 10.30(9).
ov
Signed under the pains and penalties of perjury this Za) day of December, 2015.
9 Sh)
Michi. Dorsclli, NE.CERTIFICATE OF SERVICE
I, Brian J. Wall, do hereby certify that I have served a true copy of
Plaintiff's Motion for Leave to File Sur-Reply by mailing same via first
class mail, postage prepaid to:
Michelle N. O’Brien, Esq.
Pierce Atwood LLP
100 Summer Street #2250
Boston, MA 02110
DATED: December 31, 2015 : | Saino
Brian J.Wall :
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AU Superior Court Barnstable, ss Filed JAN 19 2016 beetle Wiser, rk Re: Janice Smyth v. Falmouth Conservation Commission Barnstable Superior Court Docket No. 2012-00687 1. Plaintiff's Motion for Leave to File Sur-Reply; 2. Defendants’ Opposition to Plaintiff's Motion for Leave to File Sur-Reply; . Affidavit of Counsel in Compliance with Superior Court Rule 9A; - Document List; and Certificate of Service. Aw allSuperior Court Barnstable, ss . Filed JAN 19 2016 COMMONWEALTH OF MASSACHUSETIS Aegis. Be BARNSTABLE, ss. SUPERIOR-COURTE NO. BACV2012-00687 JANICE SMYTH, Plaintiff v. FALMOUTH CONSERVATION COMMISSION AND THE TOWN OF FALMOUTH, . Defendants eS wwe ESS SS SL PLAINTIFF’S MOTION FOR LEAVE TO FILE SUR-REPLY Now comes the Plaintiff in the above-entitled matter, Janice Smyth (“Smyth”), and respectfully moves this Honorable Court for leave to file a Sur-Reply to Defendants’ Reply to Plaintiff's Opposition to Defendants’ Motion for Summary Judgment. In support of this Motion, the Plaintiff asserts the following: 1. On October 16, 2015, the Defendants served a Motion for Summary Judgment seeking to judgement in their favor on the Plaintiffs regulatory taking claim. 2. On October 29, 2015, the Plaintiff served her opposition to the Motion for Summary Judgment. 3. Thereafter, the Defendants sought and obtained leave to file a Reply. 4. On November 20, 2015, the Defendants filed a 5 page Reply brief asserting three new arguments. The Reply was also supported by an Affidavit of the Town’s Building Commissioner.5. Smyth seeks leave to file a Sur-Reply in order to respond to the arguments raised in the Defendant’s Reply. 6. As the non-moving party, Smyth should be afforded the opportunity to respond to the moving parties’ arguments. 7. Further, the interests of justice will be promoted by allowing the parties to fully brief the issues and the interests of fairness will be promoted by allowing Smyth the opportunity to respond to the arguments in the Defendants’ Reply brief. 8. Smyth’s proposed Sur-Reply Memorandum and Affidavit of Michal J. Borselli, P.E. in support thereof are attached as Exhibit “A.” WHEREFORE, for all the foregoing reasons, the Plaintiff, Janice Smyth, request the Court to grant her leave to file the attached Sur-Reply and deem same to be filed. Dated: December 31, 2015 Respectfully submitted, For the Plaintiff, Janice Smyth, By her Attorney, Brian J. Wall BBO # 560063 Troy Wall Associates 90 Route 6A Sandwich, MA 02563 (T): 508-888-5700 (F): 508-888-5701 bjw@troywallassociates.comEXHIBIT “A”COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT NO. BACV2012-00687 ) JANICE SMYTH, ) Plaintiff ) v. ) ) FALMOUTH CONSERVATION ) COMMISSION AND THE TOWN ) OF FALMOUTH, ) Defendants ) ) PLAINTIFF’S SUR-REPLY TO DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT In their Reply Memorandum, the’ Defendants raise three new arguments that the Plaintiff, Janice Smyth (“Smyth”), does not have “reasonable investment-backed expectations” and, consequently, her regulatory taking claim must fail. Smyth submits this Memorandum in response and contends that the Defendants’ arguments fail for the following reasons: 1, The 1998 Regulations did not prohibit Smyth’s Project; 2. The mere enactment of the 1998 Regulations did not take away Smyth’s reasonable investment-backed expectations; and 3. Assuming, arguendo, that the 1998 Regulations did prohibit development of the Property, Smyth’s taking claim remains viable under the U.S. Supreme Court’s holding in Palazzolo v. Rhode Island, 433 U.S. 606 (2001), and is not susceptible to adjudication by summary judgment for the reasons argued by the Defendants.1. Smyth’s Project Is Not Prohibited By The 1998 Regulations, The Defendants assert that Smyth’s proposed project was prohibited by the 1998 Regulations, specifically FWR 10.30(7)(d)(1)(b), and that Smyth’s expert failed to consider this Regulation in his report. The Defendants further argue that this alleged failure is significant because Smyth acquired her interest in the Property after the 1998 Regulations were adopted and, thus, never had a reasonable expectation to develop the Property. This argument misapprehends the opinion of Smyth’s expert. Smyth’s expert, Michael J. Borselli, P.E. (“Borselli”), prepared a report which sets forth, inter alia, (1) a detailed analysis of the application of the 1998 Regulations to the Property and the proposed project and (2) his conclusion that “the proposed project would have met the requirements of the Bylaw and the Regulations in 1998.” This opinion covers all of the 1998 Regulations. Thus, Defendants’ argument regarding FWR 10.30(7)(d)(1)(b) does not go to the sufficiency of Borselli’s opinion, but instead goes to its weight. Consequently, Defendants’ argument does not raise a question of law, but instead raises a question of fact that cannot be resolved by summary judgment. Defendants’ argument is also factually incorrect. Borselli specifically addressed FWR 10.30(7) in his report and in his analysis when he said: “... even though a portion of the project was on a portion of the coastal bank in a v-zone, Smyth could have asserted that her project was eligible for a permit because that portion of the proposed structure on a bank within a v-zone is elevated above the v-zone on piles. In my experience permitting projects in Falmouth, the Commission interpreted the Regulation such that elevating the structure above the flood plain resulted in the project being out of the v-zone. The Commission did not consider piles on the bank elevating the structure to be prohibited by FWR 10.30(7)(b). If the Commission were to have considered the piles to 2be prohibited, the project could have been modified so as to cantilever the portions of the structure so that no part of the structure would be on any part of the coastal bank within the v-zone.” (Emphasis added). When reviewing Borselli’s opinion, it is important to note the language of the Regulation at issue: No project on a coastal bank, or within 100 feet landward of the top of a coastal bank, in a naturally vegetated condition, unless permitted under FWR 10.30(5), shall be permitted on: (b) that portion of a coastal bank ina v-zone; qd@ 1. that portion of a coastal bank that is within one hundred feet (100 ft.) of: b. Salt Marsh. Although Borselli’s opinion did not expressly mention sub-part (d)(1)(b) of the Regulation, his discussion of FWR 10.30(7) implicitly addresses its sub-parts, including FWR 10.30(7)(d)(1)(b). Borselli’s explanation of why the project would not have been prohibited by sub-part (b) also explains why the project would not have been prohibited by sub-part (d)(1)(b). The Regulations prohibit projects from being “on that portion of the bank” that is within a v-zone (sub-part (b)) and/or that is within 100 feet of a salt marsh (sub-part (d)(1)(b)). Borselli explains that the Commission interpreted the Regulation to allow pilings on a coastal bank. Thus, a pile-supported structure such as proposed by Smyth would, under the 1998 Regulations, not be considered to be “on the bank” and would not be prohibited by FWR 10.30(7)(b) or FWR 10.30(7)(4)(1)(b).In addition, Borselli noted that the project could have been re-designed and cantilevered so that there would be no structure or piles on the coastal bank and thereby comply with all sub-parts of FWR 10.30. Although Borselli’s report sufficiently addresses the 1998 Regulations, Smyth submits herewith an Affidavit of Borselli in order to make it clear that Borselli’s expert opinion is that Smyth’s project was eligible for permits under the 1998 Regulations. In the Affidavit, Borselli confirms his opinion that Smyth’s project was not prohibited by FWR 10.30(7)(d)(b)(1). See, 4 13. Borselli further opines in the Affidavit that, since the coastal bank on Smyth’s Property has been disturbed by human activity, FWR 10.30(7) -- including all its sub- parts -- is not applicable, and, therefore, does not prohibit Smyth’s project. See, § 14. Further, Borselli opines in his Affidavit that Smyth’s project is eligible for a permit under FWR 10.30(9), which allows projects on and within 100 feet of a coastal bank as long as the stability of the bank is not adversely affected. See, ¥ 15. Borselli also reconfirms in the Affidavit the opinion he gave in his reports that Smyth’s project was eligible for a permit under FWR 10.18(7). See, 4] 16-22. This Regulation was adopted as part of the 1998 Regulations in recognition that the new setbacks imposed by the 1998 Regulations could pose difficulties for older, smaller lots created prior to effective date of the Regulations (August 15, 1998), such as Smyth’s Property, and authorized the Commission to allow reduced buffer zones for such lots. Borselli opined in his report that Smyth’s Property and project would have been eligible for treatment under this Regulation and would have satisfied the requirements of this 4Regulation and, as a result, Smyth would not have had to provide any buffer to the coastal bank. , Borselli has further explained and clarified in the accompanying Affidavit that, in 1998, FWR 10.18(7) was interpreted by the Commission as “trumping” other, more specific provisions of the Regulations. See, 21. Since Smyth’s Property was eligible for review under, and satisfied the requirements of, FWR 10.18(7), she would have been afforded flexibility with respect to setbacks, including those set forth in FWR 10.30(7). Borselli’s opinion generates an issue of material fact as to whether or not the 1998 version of the Falmouth Wetlands Regulations prohibited, or did not prohibit, development of the Property when Smyth acquired an interest in it in 2001. The existence of this issue of material fact precludes summary judgment. 2. Assuming Arguendo That Smyth’s Project Was Prohibited By The 1998 Regulations, Smyth’s Taking Claim Would Remain Viable And Not Be Susceptible to Adjudication By Summary Judgment, The Defendants argue in their Reply Memorandum that Smyth “was on constructive notice that she might be denied the opportunity to develop the Property” and that, “{uJnder such circumstances, [Smyth’s] alleged expectations of development were not reasonable” and, therefore, “summary judgment must enter in favor of the Defendants.” This contention is refuted by the holding in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), where the United States Supreme Court held that notice of a restrictive land use regulation does not prohibit a successive owner from asserting a taking claim.The facts and holding of Palazzolo are highly instructive to this case and warrant review. In 1957, a corporation that the Plaintiff, Anthony Palazzolo, formed with some associates purchased land in Rhode Island. After the purchase, Mr. Palazzolo bought out the other investors and became the sole shareholder. In 1971, Rhode Island created the Rhode Island Coastal Resources Management Council, which enacted regulations that prohibited building in wetlands unless there was a compelling public purpose for an exception. In 1978, the corporation was dissolved for failing to pay its taxes. As a result, by operation of Rhode Island law, Mr. Palazzolo became the owner of the property. Mr. Palazzolo thereafter submitted a Proposal to the Coastal Council for permission to fill eleven of his remaining eighteen acres in order to build a beach club. The Coastal Council denied the application and the lower courts upheld the denial. On appeal, the Rhode Island Supreme Court held, inter alia, that Mr. Palazzolo lacked standing to raise an objection to the regulation because he became the owner of the property after the enactment of the regulation. The U.S. Supreme Court reversed. Although the Justices addressed the standing issue in several separate Opinions, a majority of the Court held that Mr. Palazzolo had standing to raise the takings claim notwithstanding that ownership of the property was transferred to him after the effective date of the wetlands regulation. 533 U.S. at 628. In regulatory taking cases that do not involve a physical invasion of private property, Justice Kennedy, Justice Thomas, and Chief Justice Rehnquist rejected a "blanket rule" that would prevent a subsequent owner from asserting a taking claim. 533 U.S. at 627. Justice O'Connor concurred and explained that the time of ownership should inform the 6Court's investment-backed expectation analysis, but should not bar Mr. Palazzolo’s takings claim even though his corporation (and not Mr. Palazzolo) was the owner of the property on the effective date of the regulation. 533 U.S. at 632. Justice Scalia would go even further. In his view, “the fact that a restriction existed at the time the purchaser took title ... should have no bearing upon the determination of whether the restriction is so substantial as to constitute a taking.... [and that a] ... taking ... is not absolved by the transfer of title." 533 U.S. at 636. Accordingly, a majority of the U.S. Supreme Court has held that the transfer of ownership after the effective date of the regulation does not prevent the successive owner from asserting a takings claim. The U.S. Supreme Court reasoned that, if it were to have accepted the government’s argument that postenactment transfer of title absolved the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable, “[a] State would be allowed, in effect, to put an expiration date on the Takings Clause.” Palazzolo at 627. In rejecting the government’s argument, the U.S. Supreme Court stated: “A State, by ipse dixit, may not transform private property into public property without compensation.” Id. at 628, citing Webb’s Fabulous Pharmacies, Inc. c. Beckwith, 449 U.S. 155, 164 (1980). Acquiring title to property after enactment of the restrictive land use restriction does not preclude the successive owner from asserting the taking claim. Palazzolo at 627, and see, Taking the Takings Claims: A Policy and Economic Analysis of the Survival of Takings Claims After Property Transfer, 36 Conn. L. Review 7 (2003-2004).Thus, the gift of a one-half interest in the Property from Smyth’s father to Smyth in 2001 and Smyth’s inheritance of the other one-half interest in 2005 does not divest Smyth of the ability to assert a takings claim even if the 1998 Regulations prohibited development of the Property. Palazzolo v. Rhode Island, 533 U.S. 606 (2001); and see Machipongo Land and Coal Co., Inc. v. Com., 799 A.2d 751, 569 Pa. 3 (Pa. 2002). 3. The Penn Central Analysis Is a Balancing Test And No Single Factor Is Dispositive Of A Takings Claim. The Palazzolo case is instructive on another aspect of the Defendant’s motion for summary judgment: It confirms that the Penn Central factors are not elements of a cause of action but are instead a balancing test and no single factor has dispositive status. Failure to establish an element to a cause of action is fatal. But failure to establish one of the Penn Central factors is not fatal, it merely affects the balancing test analysis. Smyth asserts that she has demonstrated a prima facie case on each of the Penn Central factors. The Town argues otherwise and contends that Smyth does not have any reasonable investment-backed expectation and, therefore, lacks a viable taking claim. This argument is misdirected because, even if Smyth did not have any reasonable-backed expectations, her claim would still be viable and not be susceptible to summary judgment because, as Palazzolo instructs, no single Penn Central factor is outcome dispositive. The Fifth Amendment forbids the taking of private property for public use without just compensation. This constitutional guarantee is “designed to bar the government from forcing some people alone to bear public burdens which, in all fairness and justice,should be borne by the public as a whole. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 123-124 (1978) (Emphasis added). The concepts of “fairness and justice” are not subject to empirical analysis and the Supreme Court has “eschewed any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” Palazzolo v. Rhode Island, 533 606, 633 (2001) citing Penn Central, supra at 124. The outcome of a takings claim depends upon the particular circumstances of each case. Id. In reversing the Rhode Island Supreme Court’s decision that Palazzolo lacked reasonable investment-backed expectations, and hence lacked a takings claim, because the wetlands regulations predated Palazzolo’s acquisition of the property at issue, Justice O’Connor wrote in her concurring opinion: Penn Central does not supply mathematically precise variables, but instead provides important guideposts that lead to the ultimate determination whether just compensation is required. ... The [Rhode Island Supreme Court] erred in elevating what it believed to be “[petitioner’s] lack of reasonable investment-backed expectations” to “dispositive” status. Investment-backed expectations, though important, are not talismanic under Penn Central. Evaluation of the degree of the interference with investment-backed expectations instead is on one factor that points toward the answer to the question whether the application of a particular regulation to particular property “goes too Jar.” (Emphasis added). see We also have never held that a takings claim is defeated simply on account of the lack of personal financial investment by a postenactment acquirer of property, such as a donee, heir or devisee. Cf Hodel v. Irving, 481 US. 704, 714,-718 (1987). Courts instead must attend to those circumstances which are probative of what fairness requires in a given case. If investment-backed expectations are given exclusive significance in the Penn Central analysis and existing regulations dictate the 9reasonableness of these expectations in every instance, then the State wields far too much power to redefine property rights upon passage of title. On the other hand, if existing regulations do nothing to inform the analysis, then some property owners may reap windfalls and an important indicium of fairness is lost. As I understand it, our decision today does not revoke the regulatory backdrop against which an owner takes title to property Jrom the purview of the Penn Central inquiry. It simply restores balance to that inquiry. Courts properly consider the effect of existing regulations under the rubric of investment-backed expectation in determining whether a compensable taking has occurred. As before, the salience of these facts cannot be reduced to any “set formula.” Penn Central, 438 U.S. at 1 24. The temptation to adopt what amount to per se rules in either direction must be resisted. The Takings Clause requires careful examination and weighing of all the relevant circumstances in this context. The court below therefore must consider on remand the array of relevant factors under Penn Central before deciding whether any compensation is due. Since no single factor in the Penn Central analysis is outcome dispositive, the Town is not be entitled to summary judgment even if Smyth did not have any reasonable investment-backed expectations. 4. The Mere Enactment Of A Wetlands Regulation Does Not Ipso Facto Quash Investment-Backed Expectations. The Defendants argue in their Reply Memorandum that “when Plaintiff became part owner of the Property, the 1998 Regulations had been in place for three years and proscribed construction projects like that at issue here. Thus, Plaintiff was on constructive notice that she might be denied an opportunity to develop the Property with a residential home. Under such circumstances, Plaintiff's alleged expectations of development were not reasonable.” Defendants’ Reply Memorandum, pgs. 2-3. Smyth disagrees and argues that this is not consistent with the law of takings claims. The law recognizes the difficulty of demonstrating that “mere enactment” of regulations restricting land use results in a taking. Suitum v. Tahoe Regional Planning 10Agency, 520 U.S. 725, 736 (1997). Indeed, before a takings claim can be considered ripe, a landowner is required to give a land-use authority an opportunity to exercise its discretion and “may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation” Palazzolo at 620. “As a general rule, until these ordinary processes have been followed the extent of the restriction on Property is not known and a regulatory taking has not been established.” Id. at 621, citing Suitum, supra, at 726, and S€e, €.8., MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986) ("[a] court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes"). This “final decision” requirement “responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer.” Id. at 738. The majority of the Palazzolo Court further confirmed this: ~ A challenge to the application of a land-use regulation, by contrast [to an eminent domain taking], does not mature until ripeness requirements have been satisfied ... until this point an inverse condemnation claim alleging a regulatory taking cannot be maintained. It would be illogical, and unfair, to bar a regulatory takings claim because of the postenactment transfer of ownership where the steps necessary to make the claim ripe were not taken, or could not have been taken, by a previous owner. Palazzolo at 628. Thus, the mere enactment of the 1998 Regulations, even if they did prohibit development of the Property, did not effect a taking or take away Smyth’s investment- backed expectations. In addition, there is another reason supporting Smyth’s claim of having reasonable expectations to develop the Property: The 1998 Regulations provided a variance 11procedure. Thus, even if it could have been ascertained that the 1998 Regulations substantially restricted or altogether prohibited development of the Property, there existed the possibility to apply for and obtain a variance that would permit development. Under these circumstances, it cannot be said as a matter of law that Smyth had no reasonable expectation that she could obtain a variance. Indeed, when Smyth applied for a variance under the 2008 Regulations, two Commissioners voted in favor of granting her a variance. See, Administrative Record, Vol. I, pg. 772. It also notable that Smyth obtained a wetlands permit from the Department of Environmental Protection for her project. The DEP regulates coastal banks and approved Smyth’s project. It cannot be said, as a matter of law, that, under these circumstances, Smyth had no reasonable expectation of developing her Property. CONCLUSION WHEREFORE, for the reasons set forth herein, the Plaintiff requests that the Defendants’ motion for summary judgment be denied. Dated: December 31, 2015 Respectfully submitted, For the Plaintiff, Janice Smyth, By her BBO # 560063 Troy Wall Associates 90 Route 6A. Sandwich, MA 02563 (T): 508-888-5700 bjw@troywallassociates.com 12COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT NO. BACV2012-00687 JANICE SMYTH, Plaintiff v. FALMOUTH CONSERVATION COMMISSION AND THE TOWN OF FALMOUTH, Defendants SSeS SESS ewe SL AFFIDAVIT OF MICHAEL J. BORSELLI, P.E. I, Michael J. Borselli, P.E., under oath, do hereby depose and say the following: 1. I am a Registered Civil Professional Engineer, a licensed Title V Septic System Inspector, and a licensed Professional Soil Evaluator. 2. I am the President of Falmouth Engineering, Inc., and I perform all the engineering and affiliated duties for the company. 3. I have been practicing civil engineering for more than 30 years and I have been involved with the evaluation, design and permitting of more than 1,000 real estate development projects, the majority of which have been in 1Falmouth. I am familiar with state and local laws, bylaws and regulations that apply to the development of land in Falmouth. I have personally appeared hundreds of times before Falmouth regulatory agencies including the Falmouth Planning Board, the Falmouth Board of Health, the Falmouth Zoning Board of Appeals and the Falmouth Conservation Commission. . I provided a report and a supplemental report on the feasibility of developing the property owned by Janice Smyth (“Smyth”) located at 250 Alder Lane in North Falmouth. . L have also reviewed certain pleadings filed by the Town of Falmouth and the Falmouth Conservation Commission in the case entitled Janice Smyth c. Falmouth Conservation Commission and the Town of Falmouth, Barnstable Superior Court No. 1272CV00687, including a pleading entitled Defendants’ Reply to Plaintiff's Opposition to Defendants’ Motion for Summary Judgment (“Defendants’ Reply Memorandum”). . The Defendants’ Reply Memorandum asserts that my reports “fail[ed] to address the 1998 version of FWR_ 10.30(7)(d)(1)(b) which prohibits construction projects on any portion of a coastal bank located within 100 feet of a salt marsh.”7. I disagree with this assertion; my reports do address the 1998 version of FWR 10.30(7)(d)(1)(b) and my reports set forth my opinion that Smyth’s project was eligible for a permit under the 1998 Regulations. 8. On page 3 of my supplemental report, I quote FWR 10.30(7) as follows: No project on a coastal bank, or within 100 feet landward of the top of a coastal bank, in a naturally vegetated condition, unless permitted under FWR 10.30(5), shall be permitted on: (b) that portion of a coastal bank in a y-zone; @ 1. That portion of a coastal bank that is within one hundred feet (100 ft.) of: ... b. salt marsh. 9. My quotation of FWR 10.30(7) includes sub-part “(7)(b)” and sub-part “MOO.” 10. Thereafter, I state in my report that, notwithstanding the provisions of FWR 10.30(7), it is my opinion that Smyth’s property was eligible for a permit under the 1998 Regulations. By referring to “FWR 10.30(7)”, my statement addresses both sub-parts of the Regulation -- FWR 10.30(7)(b) and FWR 10.30(7)(b)(1)(d). 11.In the first full paragraph on page 4 of my supplemental report, I stated that: ... Smyth could have asserted that her project was eligible for a permit under FWR 10.30(7) even though a portion of the project was on a portion of the coastal bank in a v-zone because that portion of the proposed structure on the bank within the v-zone is elevated above the v-zone on piles. In my experience permitting projects in Falmouth, the Commission 3interpreted the Regulation such that elevating the structure above the flood plain resulted in the project being out of the v- zone. The Commission did not consider the piles elevating the structure to be prohibited by FWR 10.30(7)(b).' If the Commission were to have considered the piles to be prohibited, the project could have been modified so as to cantilever the portions of the structure so that no part of the structure would be on any part of the coastal bank within the v-zone. 12. The above paragraph explains that Smyth’s project was eligible for approval under FWR 10.30(7)(b) given the project design and manner in which the Commission interpreted the Regulation. More specifically, the project was eligible for a permit because the Commission did not consider the Regulation to prohibit piles on a coastal bank. By elevating Smyth’s proposed structure on piles such that the structure was above the flood plain/v-zone, the project would be deemed to be out of the v-zone and compliant with FWR 10.30(7)(b). 13. The same analysis applies to FWR 10.30(7)(d)(1)(b). By elevating the portion of the structure above the coastal bank on piles, the project would be not be considered “on the bank” and, therefore, the project would not be on that portion of the coastal bank within 100 feet of salt marsh and would comply with FWR 10.30(7)(d)(1)(b). 14. In addition, it is my opinion that the 1998 version of FWR 10.30(7) -- including both FWR 10.30(7)(b) and FWR 10.37(7)(d)(1)(b) -- is not applicable to Smyth’s | This interpretation remains the same today and is incorporated into the Regulations at FWR 10.38(4)(d)1 which allows pile foundations. This Regulation allows open pile foundations such as the one proposed by Smyth. 4property or project and, therefore, does not prohibit her project. The first sentence of FWR 10.30(7) provides that the provisions of the Regulation are applicable to coastal banks “in a naturally vegetated condition.” The coastal bank on Smyth’s property is not in a naturally vegetated condition. The vegetation on the bank has been disturbed by human activity. The Land Management Report prepared by BlueFlax Design which was submitted to the Conservation Commission in support of Smyth’s permit application confirms this: This 16,500 square foot lot is currently undeveloped, but has been used as a dumping ground for neighboring properties, with grass clippings, woody brush, minor construction debris, plant pots, empty cans and even an old dog house observed. Dumping and unauthorized cutting of vegetation has degraded the eastern portion of the property, where development is proposed. See, Administrative Record, Vol. I, page 102. I visited the site on December 31, 2015 and I observed that the conditions described in the Land Management Plan and I confirmed that the disturbed area is on the coastal bank. Since the coastal bank is disturbed, it is not “in a naturally vegetated condition” and, therefore, FWR 10.30(7)(b) and FWR 10.30(7)(d)(1)(b) do not apply and do not prohibit Smyth’s project. 15.Further, it is my opinion that Smyth’s project would have been eligible for a permit under the 1998 version of FWR 10.30(9). This regulation allowed projects on, and within 100 feet of, coastal banks provide that the project does not have any adverse effects on the stability of the bank. Smyth’s project would not adversely affect the stability of the coastal bank. Although there would be temporary 5impacts to the coastal bank during construction, these impacts could be managed and would not have any adverse effects on the stability of the coastal bank. Once the project was completed, it would not have any adverse effects on the stability of the coastal bank. Therefore, the project was eligible for a permit under FWR 10.30(9). 16.In addition to the foregoing paragraphs regarding FWR 10.30, I explained in my supplemental report that Smyth’s proposed project would have been eligible for a permit under FWR 10.18(7). 17.When the 1998 revisions to the Regulations were adopted, the Commission imposed new requirements that were substantially more stringent than in prior versions of the Regulations. 18. The new, more stringent requirements would create difficulties for development in Falmouth, particularly with older, smaller lots. FWR 10.18(7) provides some relief from these new requirements for older lots. 19.FWR 10.18(7) authorized the Commission to issue a permit for projects on parcels created prior to August 15, 1998 where no practicable alternative existed on the parcel that would allow a resource area buffer the width required in FWR 10.18(8)(a) or (b) for new construction due to site constraints, provided a resource area buffer was maintained as close aspracticable to those required in FWR 10.18(8)(a) and (b), and in no case less than 25 feet to the resource areas delineated in FWR 10.18(8)(a) and (b). 20.Smyth’s lot was eligible for consideration under FWR 10.18(7) because it 21. was created before August 15, 1998. The coastal bank on Smyth’s property is non-eroding; thus FWR 10.18(a) and (b) did not require any buffer to the coastal bank. And, in my opinion, Smyth’s project met the “no practical alternative” provision of FWR 10.18(7). As a result, it is my opinion that Smyth’s project satisfied the requirements of FWR 10.18(7) and would have been eligible for a permit. The Commission interpreted FWR 10.18(7) as trumping other setbacks in the Regulations. Thus, if a project proposed on a parcel created prior to August 15, 1998, such as Smyth’s, satisfied the requirements of FWR 10.18(7), the Commission deemed the project eligible for a permit, even if there was another more stringent setback of general applicability in another section of the Regulations such as FWR 10.30(7). 22.As further support for this opinion, I note that FWR 10.18(8), which sets forth setbacks for “new activity on a parcel created on or after August 15, 1998,” has a footnote that states that “[a]dditional setbacks from the top of a Coastal Bank are found in FWR 10.30.” There is no such footnote in FWR 10.18(7). This, in myopinion, confirms that FWR 10.18(7) provided flexibility for lots created before August 15, 1998 and that such lots did not have to comply with the setbacks in FWR 10.30 if the lot, and the project proposed thereon, satisfied the requirements of FWR 10.18(7). 23.1t is my opinion, based upon my expertise and based upon my actual permitting experience before the Falmouth Conservation Commiscion when the 199% Regulations. were in effect, that Smyth’s project was eligible for a permit under the 1998 version of the Regulations including FWR 10.18(7), FWR 10.30(7)(b), FWR 10,30(7)(d)(1)(b), and FWR 10.30(9). ov Signed under the pains and penalties of perjury this Za) day of December, 2015. 9 Sh) Michi. Dorsclli, NE.CERTIFICATE OF SERVICE I, Brian J. Wall, do hereby certify that I have served a true copy of Plaintiff's Motion for Leave to File Sur-Reply by mailing same via first class mail, postage prepaid to: Michelle N. O’Brien, Esq. Pierce Atwood LLP 100 Summer Street #2250 Boston, MA 02110 DATED: December 31, 2015 : | Saino Brian J.Wall :