Town won’t let owner build on her lot, says it owes $0.00 for taking

Janice Smyth’s family had paid property taxes for 40 years on a residential-zoned land parcel on Cape Cod, which has been left as the last plot in its neighborhood not residentially developed. But the town of Falmouth has adopted land-use regulations that have left only a 115-square-foot patch of it developable. Massachusetts courts: even if the plot’s valuation fell from $700,000 to $60,000, a decline of more than 90 percent, it’s not a taking since you could still use the land as a park or to walk dogs or for neighbors to buy as a buffer. The dispute might make a suitable vehicle for the Supreme Court to revisit the question of whether an outright confiscation of all uses is required before the Constitution’s requirement of just compensation kicks in [Trevor Burrus on Cato certiorari amicus brief in case of Smyth v. Conservation Commission of Falmouth et al.]


  • Sounds like Justice Stevens’ in a dissent in one of the cases–I think the one in SC.

    Here, the courts aren’t even pretending to follow the law. It is nothing but a cruel joke. And you can bet your bottom dollar if the land was sold to someone with connections that suddenly the restrictions would go away.

    I wonder what Elizabeth Warren thinks of this state of affairs.

  • As the Brits would say: “too clever by half”. It would be like saying if a business disables you at work, but not 100% (you can still crawl) they don’t owe disability.

  • Once again—when courts do this sort of thing–the real definition of the Taking Clause includes an “if the courts, which are often loath to do so, choose to protect your right.”

  • I’d be curious to see what the property tax and assessed value history has been.

    If the taxing authority was assessing the value as if the property were able to be fully developed, and taxing appropriately, then I’d be demanding a retroactive refund.

    Alas….that shall never come to be.

    Pay your taxes you petty serf….and be happy we don’t take it all.

  • Some vulnerable coastal plots should not be built on and would not be, if it were not for subsidized Federal flood insurance. For takings purposes, it would be reasonable to price the vacant land as if government subsidies were not available (unless the authorities let someone else build there).

    As NNG said, however, the tax appraisal and payment history is relevant (as is the price originally paid by the property owner).

    Coastal building is touchy in States like Massachusetts where State law allows owners to block coastal walking down to the *low* water mark. In States which guarantee coastal walking to the public, attitudes are likely to be more generous.