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After a full trial, a Massachusetts Superior Court ruled in favor of the Town of Chatham zoning bylaw (on Cape Cod) banning new residential structures in a "coastal conservancy district" up to the 100-year coastal flood. This was upheld by the Massachusetts Appeals Court and recently further upheld in the Supreme Judicial Court in the case of Gove v. Chatham, 444 Mass. 754, 831 N.E.2d 865 (2005).

After a full trial, a Massachusetts Superior Court ruled in favor of the Town of Chatham zoning bylaw (on Cape Cod) banning new residential structures in a "coastal conservancy district" up to the 100-year coastal flood. This was upheld by the Massachusetts Appeals Court and recently further upheld in the Supreme Judicial Court in the case of Gove v. Chatham, 444 Mass. 754, 831 N.E.2d 865 (2005).

The SJC ruled that the prohibition of single-family residences on a lot in this district did not deny the owner of all economically beneficial uses so as to be a total regulatory taking; was reasonably related to legitimate state interests in protecting rescue workers and residents, the effectiveness of the town's resources to respond to natural disasters, and the preservation of neighboring property, and so did not violate the owner's due process rights; and was properly upheld by the two lower courts under the Penn Central framework which eschews any set formula for mathematically precise variables for evaluating whether a regulatory taking has occurred, emphasizing instead important guideposts and careful examination of all the relevant circumstances in the well known Penn Central factors.

These factors are the economic impact of the regulation on the plaintiff, the extent to which the regulation has interfered with a landowner's distinct investment-backed expectations, and the character of the governmental actions.

Incidentally, a zoning ordinance like that of Chatham is valid under the US Constitution's due process clause unless its application bears no reasonable relation to the state's legitimate purpose. This is a highly deferential test neither involving heightened scrutiny nor allowing a court to question the wisdom of an ordinance.

The SJC decision represents one of the few rulings after a full factual trial below on the merits of a taking. Many "regulatory taking" cases are dismissed on the grounds of lack of standing, failure to exhaust administrative remedies, or lack of ripeness. It is rare that such a case goes to full trial.

Here the plaintiffs on appeal were assisted by the Pacific Legal Foundation. The Town of Chatham was joined by the MACC as well as the Conservation Law Foundation of New England, Inc. Consequently the issues were very fully briefed on law, policy and even philosophy.

The ruling of the SJC was prescient coming as it did only days before Katrina hit New Orleans and other coastal communities in Louisiana, Mississippi and Florida.

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