Opinion
11-P-820
04-26-2012
NORTH SHORE KENNEL OF LYNN, INC., & others. [FN1] v. COMMONWEALTH.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a nonevidentiary hearing, a judge of the Superior Court allowed the motion of the defendant to dismiss the plaintiffs' complaint, explaining his reasoning in a detailed and thorough memorandum of decision. The plaintiffs appealed to this court from the resulting judgment and, after hearing oral argument, we discern no cause to disturb the judgment. We add the following brief observations to the reasons expressed by the motion judge.
1. The enactment of St. 2008, c. 388, did not result in a physical occupation or invasion of the plaintiffs' property, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028 (1992), or deny them all economically beneficial use of the property, see id. at 1015-1016. Accordingly, the law works neither a per se nor a categorical taking of the plaintiffs' property. See Blair v. Department of Conservation & Recreation, 457 Mass. 634, 639, 641 (2010). 2. The plaintiffs' allegations fail to establish a viable claim of regulatory taking under the three-prong test enunciated in Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124-125 (1978). We note in particular that the economic impact claimed by the plaintiffs is indirect in nature and limited; by prohibiting the use of their dogs for racing, c. 388 deprives them of only one economically viable use for the animals, and only within the Commonwealth. The dogs may be sold as pets, or they may be leased for racing in other States. Despite the conclusory assertion contained in their complaint, the plaintiffs have made no allegations to support a conclusion that the economic utility of their dogs, and of the other equipment they own in connection with their dog breeding business, is rendered essentially without economic value. In addition, as the Supreme Judicial Court observed in Carney v. Attorney Gen., 451 Mass. 803, 817 (2008):
Under the Penn Central test, courts consider: (1) 'the economic impact of the regulation on the claimant'; (2) 'the extent to which the regulation has interfered with distinct investment-backed expectations'; and (3) 'the character of the governmental action.' Leonard v. Brimfield, 423 Mass. 152, 154, cert. denied, 519 U.S. 1028 (1996), quoting from Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225 (1986).
For purposes of their argument, the plaintiffs have emphasized the potential impact of the law on the dogs they raise. Of course, other elements of the plaintiffs' property (such as the real estate and buildings they own) may be put to purposes other than the breeding, raising, and boarding of racing dogs.
'it is worth pointing out that gambling on dog races is a heavily regulated industry that only exists by virtue of legislatively created narrow exceptions to common-law and statutory bans and that, because of the nature of the business[, it] can be abolished at any time that the Legislature may deem proper for the safeguarding and protection of the public welfare. Although mere participat[ion] in a heavily regulated industry does not bar a plaintiff from ever prevailing on a takings claim, . . . it does greatly reduce the reasonableness of expectations and reliance on regulatory provisions.' (Quotations and citations omitted.)
3. We reject the plaintiffs' suggestion that, for purposes of assessing economic impact, we should consider the effect of c. 388 on discrete portions or elements of the property used in their business, rather than on their business as a whole. See Carney, supra at 814 n.11.
4. Though the scope of the power of the people to enact laws directly is not entirely coextensive with the power of the Legislature, see Opinion of the Justices, 375 Mass. 795, 817 (1978), the plaintiffs have identified no limitation on the power of the people to enact the law at issue in the present case that warrants differential analysis on the question whether it constitutes a regulatory taking.
In that opinion, the Justices observed that the scope of the power of the people was coextensive with that of the Legislature, 'except as to matters expressly excluded.' Ibid.
--------
5. There is no merit to the plaintiffs' equal protection claim for substantially the reasons explained by the motion judge in part II of his opinion (at pages 21-26).
Judgment affirmed.
By the Court (Cohen, Green & Graham, JJ.),