Mass. High Court Declines to Expand Prior Public Use Doctrine

Practice area:

In its decision last week in Town of Sudbury vs. Massachusetts Bay Transportation Authority, the Massachusetts Supreme Judicial Court (SJC) declined to expand the reach of the common-law prior public use doctrine. As the court explained, “[u]nder this long-standing doctrine, public lands acquired for one public use may not be diverted to another inconsistent public use unless the subsequent use is authorized by plain and explicit legislation.” In this case the Town of Sudbury sought to prevent the defendant Massachusetts Bay Transportation Authority (MBTA) from entering into an easement agreement with Eversource for the installation and maintenance of an underground transmission line on an unused 9-mile right of way, approximately 4.3 miles of which is located in Sudbury.

The Town of Sudbury urged the court to find that use of the right of way by Eversource violated the prior public use doctrine because the MBTA’s transportation use was inconsistent with the electric transmission line use by Eversource, which the Town argued was a public use. In an effort to characterize the Eversource use as a public use, the Town pointed to Eversource’s filings with the Energy Facilities Siting Board (EFSB) and the Department of Public Utilities (DPU), in which Eversource stated that the transmission line would be beneficial to the public because it would supply electricity. Alternatively, Sudbury urged the court to expand the prior public use doctrine to require legislative approval for property transfers between public and private entities for subsequent private uses.

The Town filed suit in the Massachusetts Land Court, where the MBTA moved to dismiss claiming that the Town lacked standing and for failure to state a claim upon which relief could be granted. The Land Court determined that the Town did have standing (albeit “at the precipice of adequacy”), but dismissed the case because it found that the use of the right of way by Eversource was not a public use. The Land Court also declined to expand the prior public use doctrine to require legislative approval for the private use of property that previously had been used for public purposes. Sudbury appealed the dismissal to the Appeals Court, and the SJC transferred the case on its own motion.

The SJC first explored the question of standing. The court found that, “[t]he Town has no standing to bring a claim under the prior public use doctrine concerning the majority of the land abutting the [right of way] in which the Town has no property interest.” As to other land, the court went on to assume, without deciding, that the Town could establish some particularized harm to satisfy standing requirements.

The SJC then turned to the history of the prior public use doctrine, finding that public lands could not be diverted for other public uses without explicit legislative authority. The court articulated four elements that the Town of Sudbury was required to plead in order to show a violation of the prior public use doctrine and survive a motion to dismiss:  “(1) a subsequent public use; (2) previous devotion of the property to only ‘one public use’; (3) an inconsistent subsequent use; and (4) a lack of legislative authorization.”

The SJC agreed with the Land Court that the use of the property by Eversource was not a public use. Eversource is a private company and the transmission lines would be privately owned. In the SJC’s view, the fact that Eversource is a regulated entity, and must satisfy the EFSB and DPU that its transmission lines serve the public interest in order to obtain approvals, does not equate to public use for purposes of the prior public use doctrine.

Importantly, the SJC also declined to expand the prior public use doctrine to require that the private use of public land be allowed only with legislative approval. In analyzing the history of the doctrine and the requirement of legislative approval for a subsequent public use, the court found that the doctrine was meant to resolve conflicts among public entities with the powers of eminent domain, to prevent the “potentially never-ending cycle of takings” for subsequent public uses. The court recognized that such an expansion of the doctrine would have far-reaching consequences with respect to easements and other transfers of land between public and private entities.

NAIOP, the Real Estate Bar Association (REBA), and The Abstract Club (along with National Grid), submitted amicus briefs to inform the SJC of the ramifications of extending the prior public use doctrine to private transactions. The court was persuaded by the concerns of the amici that “[i]mposing upon the Legislature a new common law requirement to provide site-specific approval before any such project could commence construction would add great uncertainty as to schedule (and, therefore, project costs), making development involving public land or rights therein far less attractive to the private sector than it is today.”

This case involving common law principles should be distinguished from the requirements of Article 97 of the Massachusetts constitution, which mandates legislative approval for the use of parkland for non-parkland purposes. The SJC recognized that while Article 97 may be derived from the prior public use doctrine, Article 97 was “intended to ensure that public parkland remain parkland.”  Nothing in Sudbury v. MBTA suggests otherwise. Instead, the case focuses on transfers of non-parklands between public and private entities. The SJC wisely found that such transfers do not require legislative approval.