Paula M. Devereaux

Mass. High Court Declines to Expand Prior Public Use Doctrine

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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

UPDATE: Mass. High Court Takes Plaintiff Out of Game, Upholds Boston’s Transfer to Red Sox of Easement Rights Next to Fenway Park

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In my post last week on Pishev v. City of Somerville (pdf), I mentioned that the Supreme Judicial Court (SJC) would be soon deciding another important urban renewal case, Marchese v. Boston Redevelopment Authority. It turns out “soon” was the next day.

Jersey Street, outside Fenway Park

In its September 13, 2019 decision (pdf) in Marchese, the SJC upheld actions taken by the Boston Redevelopment Authority (BRA) with respect to what is known as a “demonstration project” under the provisions of M.G.L. c. 121B, section 46(f). This case focused on a permanent taking by the BRA of easement rights in Yawkey Way (now known as Jersey Street), and the transfer of those easement rights to the Boston Red Sox for so long as baseball games are played at Fenway Park.

The plaintiff, Marchese, challenged the taking and the conveyance, alleging that the area was

Mass. Appeals Court Upholds Somerville’s Union Square Revitalization Plan

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In 2012, the City of Somerville, the Somerville Redevelopment Authority (SRA), and the Massachusetts Department of Housing and Community Development approved the Union Square Revitalization Plan (the Plan), an urban renewal plan to be administered by the SRA under M.G.L. c. 121B. A taxpayer group and a landowner (Pishev) appealed the approval of the Plan, alleging that it violates Chapter 121B. In late July the Appeals Court upheld the Plan’s approval in Pishev v. City of Somerville (pdf), 95 Mass. App. Ct. 678 (2019).

Pishev’s property is identified as a parcel subject to eminent domain taking by the SRA under the Plan pursuant to the powers granted to the SRA by Chapter 121B. The Appeals Court first addressed the issue of standing and found that the taxpayer group did not have standing, citing St. Botolph’s Citizens Committee, Inc. v. Boston Redevelopment Authority (pdf) and finding that “[n]o sufficient causal or connective link exists between the injuries or