Last September, SJC issued an important decision concerning the scope of eminent domain authority in the case titled Town of Nahant v. Northeastern University. Reversing a Superior Court decision that had invalidated the Town of Nahant’s proposed taking of
property owned by Northeastern University, the SJC reaffirmed the considerable deference afforded to municipalities exercising eminent domain for a legitimate public purpose. Perhaps more significantly, the Court clarified the circumstances in which a taking may be invalidated as having been undertaken in bad faith to prevent a particular development.
Courts will instead look to whether the
asserted public purpose is legitimate and whether the property rights being
acquired will actually be used to accomplish the stated purpose.
Background
The case arose from Northeastern’s plans to expand its Marine Science Center on East Point in Nahant. Northeastern owns approximately 20 acres on East Point, portions of which have historically remained undeveloped. The Town owns neighboring property that has long served as a public park.
In 2018, Northeastern announced plans to expand its campus, including construction of a new, 55,000 square foot building and associated improvements. The proposal generated substantial opposition from Town officials and residents, who raised concerns regarding conservation, wildlife, traffic, infrastructure, public safety, and the effect of the development on the scenic character of East Point.
The Town thereafter began exploring the potential of exercising eminent domain over a portion of Northeastern’s property. In 2021, the Board of Selectmen were authorized at a town meeting to acquire easement rights over portions of Northeastern’s property for open space, recreation, conservation, historic preservation, and beach purposes. The proposed taking covered approximately twelve acres and would prohibit new buildings within the easement areas, thereby preventing construction of Northeastern’s proposed building.
The Town subsequently filed a petition in Superior Court seeking to establish its right to take the easements, which Northeastern challenged. One of Northeastern’s arguments, which is the subject of the recent SJC decision, was that the Town’s stated conservation purposes were pretextual and that its true purpose was simply a bad faith effort to stop Northeastern’s development.
The Superior Court agreed with
Northeastern, relying heavily on the SJC’s prior 1987 decision in the case
titled Pheasant Ridge Associates Limited Partnership v. Burlington. In
that case, a municipality purported to take property for parks, recreation, and
affordable housing after a proposed development generated opposition, but the
record demonstrated that those stated purposes were effectively invented to
justify the taking and were not purposes for which the municipality actually
intended to use the property. In the Superior Court, the court concluded that the
“dominant reason” for the taking was to prevent Northeastern’s project and that
the Town therefore acted in bad faith, and dismissed the eminent domain
petition. As a result, the Superior Court dismissed the Town’s petition and
awarded Northeastern more than $1 million in attorneys’ fees, expert fees, and
costs.
The SJC Decision
In a decision issued in September, the SJC reversed the decision of the Superior Court. The SJC first emphasized that the concept of a “public purpose” is construed broadly and that courts traditionally afford substantial deference to legislative determinations regarding the use of eminent domain. The SJC concluded that preserving property as open space and protecting its conservation, scenic, and recreational values were not merely permissible public purposes, but “quintessential” ones.
The more difficult issue was whether the taking was nevertheless invalid because the Town only pursued eminent domain in response to Northeastern’s proposed development, and the record contained considerable evidence that Town officials and residents wanted to stop the project. The SJC concluded that this evidence did not establish bad faith. The SJC distinguished Pheasant Ridge, finding that the circumstances which caused the eminent domain petition to be dismissed in that case – namely, invoking eminent domain as a pretext for blocking the development, failing to follow the usual procedures for approval of eminent domain, and failing to establish that the property would actually be used for the purposes articulated by the town – were not present here.
In this case, the SJC took into account the fact that the Town had a longstanding interest in East Point as an area for conservation and recreation, reflected in decades of municipal plans and actions. More importantly, the easements the Town proposed to acquire would actually accomplish the stated purposes that the property would be preserved from development and available for conservation, recreation, and public access. Accordingly, the fact that preventing Northeastern’s project prompted the taking did not make the Town’s stated conservation purpose pretextual or evidence bad faith.
The SJC also rejected Northeastern’s
argument that the taking was improper because private parties opposing the
project had advocated for and financially supported the Town’s efforts. The SJC
ruled that taking undertaken for a legitimate public purpose does not become
invalid merely because private parties request it, help fund it, or
incidentally benefit from it.
Practical Implications
The most significant aspect of the decision may be the SJC’s clarification of the limited role that a municipality’s underlying motivations play in evaluating an eminent domain taking. The decision does not eliminate the possibility of challenging a taking as pretextual or undertaken in bad faith. The decision also did not overturn the holding of Pheasant Ridge, and a municipality cannot simply identify a facially legitimate public purpose as grounds for a taking when it has no genuine intention of using the property for that purpose. Additionally, towns must be sure to follow proper protocols in invoking eminent domain.
However, the SJC’s decision establishes a significant distinction between the reason a municipality decides to act and the purpose for which the property is actually taken. A municipality may become interested in acquiring property precisely because a proposed development threatens open space, conservation resources, scenic character, or another legitimate public interest. The fact that stopping that development is an immediate objective does not necessarily make the resulting taking improper.
For property owners and developers, this makes a bad-faith challenge to eminent domain considerably more difficult where the proposed taking itself will genuinely accomplish a recognized public purpose. Evidence that municipal officials strongly opposed a development, or even expressly stated an intention to stop it, will likely not be enough. Courts will instead look to whether the asserted public purpose is legitimate and whether the property rights being acquired will actually be used to accomplish the stated purpose.
For municipalities, the decision reinforces the importance of developing and maintaining comprehensive open-space, conservation, recreation, and similar planning documents. Nahant’s historical treatment of East Point played an important role in distinguishing the case from Pheasant Ridge. Municipal records demonstrating a longstanding interest in protecting a particular area can provide significant support for a later taking, even if eminent domain was not previously contemplated.
Ultimately, the decision reaffirms the broad scope of municipal eminent domain authority in Massachusetts while leaving the bad-faith doctrine intact for certain pretextual takings that lack the trappings of legitimacy found in this case. Going forward, the central inquiry will not simply be whether opposition to a particular development caused a municipality to act, but whether the municipality is actually taking the property for, and intends to devote the acquired property rights to, a legitimate public purpose.
A member of REBA’s Condominium Law
Section, Stephen is an associate in the litigation and real estate departments
of the Quincy-based firm of Moriarty, Bielan & Gamache LLC. He handles a variety of real estate related
matters, including title clearing, adverse possession, condominium disputes,
commercial and residential leases, landlord-tenant disputes, conveyancing, and
probate matters. Stephen can be
contacted at swiseman@mbgllc.com.
