NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; [email protected]
SJC-13844
TOWN OF NAHANT vs. NORTHEASTERN UNIVERSITY & another.1
Essex. February 2, 2026. – September 3, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Eminent Domain, Purpose of taking, Validity of taking.
Constitutional Law, Eminent domain, Taking of property.
Easement. Real Property, Easement. Municipal
Corporations, Property, Parks. Parks and Parkways.
Practice, Civil, Eminent domain proceeding, Summary
judgment.
Petition filed in the Superior Court Department on September 16, 2021.
The case was heard by Jeffrey T. Karp, J., on motions for summary judgment, and judgment was entered by him.
The Supreme Judicial Court granted an application for direct appellate review.
Kevin P. Martin (Christopher J.C. Herbert also present) for the petitioner.
George A. McLaughlin, III (Joel E. Faller & Kevin P. O'Flaherty also present) for Northeastern University.
The following submitted briefs for amici curiae:
1 12.5 acres of land+/- situated in Nahant, Massachusetts.
2
Benjamin A. Goldberger & Sadie Keller for The Trustees of Reservations.
Harley C. Racer for Nahant Preservation Trust, Inc.
David Zimmer for Conservation Law Foundation & others.
Ali T. DiMatteo, James B. Lampke, Prasanna Rajasekaran, & Jeffrey T. Blake for Massachusetts Municipal Association, Inc., & others.
Jeffrey J. Pokorak, M. Benjamin Parsons, & Sofi Shlepakov for Suffolk University Law School Supreme Court Clinic.
Andrea Joy Campbell, Attorney General, & Kendra Kinscherf, Assistant Attorney General, for the Attorney General.
DEWAR, J. This appeal concerns a dispute between the town
of Nahant and Northeastern University over a peninsula known as
East Point, where they each own property. Northeastern owns a
larger parcel that comprises most of the area of East Point,
while the town owns the easternmost tip of the peninsula. The
town has long maintained a public park on its parcel, and the
town possesses an easement over Northeastern's property that
provides access to the park. Northeastern uses a portion of its
East Point property as a campus for its Marine Science Center
and, until now, has left the remaining land largely undeveloped.
In 2018, however, Northeastern announced plans to expand its
existing campus on East Point, including the construction of a
new 55,000 square foot building.
Following local opposition to the project, in 2021, town
residents voted to authorize the town's board of selectmen to
use the town's eminent domain authority to take certain
conservation and access easement rights across portions of
3
Northeastern's property. The town then filed a petition in the
Superior Court under G. L. c. 80A, § 4, seeking an order
establishing its right to take these property interests.
Northeastern challenged the validity of the taking, principally
arguing that the town was exercising its eminent domain
authority in bad faith solely to block Northeastern's planned
development. On cross motions for summary judgment, a judge in
the Superior Court agreed with Northeastern and entered judgment
in its favor. The judge concluded that the town's actions ran
afoul of this court's decision in Pheasant Ridge Assocs. Ltd.
Partnership v. Burlington, 399 Mass. 771 (1987) (Pheasant
Ridge), in which we held that a town's use of eminent domain in
bad faith to block a housing development, based on purported
public purposes that were merely pretextual, was invalid.
We conclude that on the record before us Northeastern has
no reasonable expectation of proving that the town's taking is
invalid under Pheasant Ridge. In short, the town's stated
purpose for the taking is a proper public purpose in accord with
past actions by the town evincing interest in the area of the
taking, and the extreme circumstances of Pheasant Ridge -- where
the record showed that the town did not intend in good faith to
use the property for the ostensible purposes for which it had
been taken -- indisputably are not present here. We are also
unpersuaded by Northeastern's various alternative arguments
4
challenging the validity of the taking. Accordingly, we reverse
the judgment in favor of Northeastern and remand this matter for
entry of an order establishing the town's right to take the
property interests at issue and for further proceedings
consistent with this opinion.2
Background. We begin by reciting the undisputed facts
relevant to this appeal, reserving certain details for our
discussion.
The town of Nahant is almost completely surrounded by the
waters of the Massachusetts Bay, connected to mainland
Massachusetts by a narrow isthmus. It is the smallest town in
the Commonwealth by land mass, occupying less than one and onequarter square miles. Predominantly developed for single family
residential use, the town had a population of 3,632 people in
the 2000 census. Central to this dispute is an area of the town
2 We acknowledge the amicus briefs submitted by The Trustees of Reservations; Nahant Preservation Trust, Inc.; Conservation Law Foundation, Association to Preserve Cape Cod, Boston Harbor Now, Brookline Bird Club, Inc., Charles River Watershed Association, Environmental League of Massachusetts, Essex National Heritage Commission, Inc., Friends of Mary Cummings Park, Inc., GreenRoots, Mass Parks for All, Massachusetts Association of Bird Clubs, Massachusetts Audubon Society, Inc., Massachusetts Land Trust Coalition, Massachusetts Lobstermen's Association, Massachusetts Rivers Alliance, Nahant S.W.I.M. Inc., North Shore Pollinator Project, and Save the Harbor/Save the Bay; Massachusetts Municipal Association, Inc., Massachusetts Municipal Lawyers Association, Inc., and KP Law, P.C.; Suffolk University Law School Supreme Court Clinic; and the Attorney General.
5
known as East Point, a 28.7-acre3 peninsula that is accessible to
vehicles via a single public way.
A detailed summary of East Point's recent history of land
ownership and use can be found in the Appeals Court's opinion in
Nahant Preservation Trust, Inc. v. Northeastern Univ., 104 Mass.
App. Ct. 698, 699-707 (2024), which addressed other disputes
arising from Northeastern's proposed project. Most relevant
here, East Point was acquired by the Federal government through
eminent domain for use as a military installation in 1941.
After the Federal government decommissioned its military
facilities in the early 1960s, the town submitted an application
to purchase the entire parcel for the purpose of "develop[ing]
the property into a park and recreational area." However, some
residents expressed concern about a possible influx of
nonresidents to East Point, as well as the cost of removing any
unsafe conditions posed by the land's recent use as a military
site, and the town ultimately voted against appropriating money
to purchase the property.
3 In the proceedings below, the parties disputed the precise boundaries of East Point and whether it is properly characterized as comprising 28.44 or 28.7 acres. As the Superior Court judge noted, the dispute is immaterial to the issues before us. Like the judge, we refer to East Point as comprising 28.7 acres, in accord with the size of the property originally taken by the Federal government in 1941.
6
Following this vote, the town's conservation commission
advocated for an educational institution to acquire the property
-- preferably with assurances about the public's ability to walk
along a coastal pathway on East Point -- and encouraged
Northeastern to apply to purchase the land. The town's board of
selectmen did not share this view and informed the Federal
government of its preference that the land be sold for private
residential development to expand the town's small tax base.
Ultimately, the Federal government transferred ownership of 20.4
acres to Northeastern (Northeastern parcel), while reserving for
itself the remaining 8.3 acres of East Point and a twenty-footwide easement over the Northeastern parcel to provide access to
the remaining Federal land. In 1975, the Federal government
sold its remaining land to the town, together with the access
easement.
After Northeastern acquired its 20.4-acre parcel on East
Point, it went on to create a Marine Science Center campus on
the westerly side of the property. The campus contains a 31,083
square foot research facility, repurposed from three former
military bunkers, as well as other smaller structures and
parking lots. Previously disturbed areas associated with the
subterranean bunkers, including the area above the bunkers, are
now primarily wooded. The largest of the three bunkers, which
contains classrooms and laboratory space, is known as the Murphy
7
Bunker. A solar observatory was erected atop Murphy Bunker in
1995 but removed in 2018. Northeastern has not built any other
permanent structure atop or to the east of Murphy Bunker, and,
as of 2021, these easterly areas of the property remained
primarily vegetated, with uplands, wetlands, and a beach.
The 8.3 acre parcel on East Point that was purchased by the
town also underwent changes. In 1986, the town voted to develop
the land into a public park, known as the Henry Cabot Lodge,
Jr., Memorial Park (Lodge Park). Three years later, the town's
conservation commission issued a request for proposals to
develop a passive recreational area at Lodge Park, stating that
while it would be "impossible to re-establish the original
contours" of the land given the changes made by the military,
the commission would like to "reestablish the flora and scenic
character" of the area. While the extent of the town's
subsequent work to develop Lodge Park is disputed,4 it is
undisputed that stewardship of the park was delegated to the
4 The 2000 open space plan for the town states that the town's conservation commission and open space committee worked with an architectural firm to develop a landscaping plan for Lodge Park, and that, pursuant to the plan, the remaining "unsightly and hazardous [military] silos" were filled, and the hilltop was "contoured and planted to blend with the natural topography." In its filings below, Northeastern disputed this characterization at least in part. Nothing in this appeal turns on the matter.
8
town's open space committee, and that the property remains a
public park.
In 1991, the town designated Lodge Park, as well as the
Northeastern parcel, as part of a "Natural Resource Zoning
District." Under the terms of the bylaw, this zoning district
was intended for "natural resource and recreation uses in
accordance with" four purposes: (1) "[t]he preservation and
maintenance of protected wildlife and wetlands resource areas
and habitats"; (2) "[t]he protection of the [t]own against the
costs which may be incurred when unsuitable development occurs
in swamps, marshes, along water courses, in areas of high impact
due to overcrowding of land and undue concentration of
population, or on slopes subject to erosion"; (3) "[t]o preserve
and increase the amenities of the [t]own and foster enjoyment of
its remaining natural resources as recreational values"; and (4)
"[t]o conserve natural conditions, wildlife and open space for
the education, passive and active recreation and general welfare
of the public."5 The town's bylaw elsewhere provided, however,
5 In his memorandum of decision on the parties' cross motions for summary judgment, the judge noted that the parties had not included a copy of the town's zoning bylaw in the summary judgment record; they instead had directed him to the town's website. Relying on the town website, the judge went on to quote from the town's bylaw. Neither party raises a dispute as to the accuracy of the judge's findings with respect to the bylaw, and the quoted language describing the purposes of the natural resource zoning district accords with quotations of the bylaw contained in the summary judgment record from the town's
9
that structures for educational purposes owned or leased by a
nonprofit educational corporation like Northeastern were
permitted in any zoning district. Cf. G. L. c. 40A, § 3.
In the years that followed, the town has periodically
issued "Open Space and Recreation" plans concerning its open
spaces, conservation efforts, and recreational opportunities, as
well as residents' interests in the same. The Northeastern
parcel was listed within an "Inventory of Lands of Conservation
and Recreation Interest" in two such plans. Most of the
property was designated as having "[m]edium" recreational
potential -- except for the "[h]igh" potential in a portion of
the property known as Canoe Beach -- and all of the property was
described as having "[l]imited" protection from development.
The town's plans reported significant public use and enjoyment
of East Point for open space and recreational purposes. Ninety
percent of residents surveyed for the town's 1989 plan "said
they visited the beaches and Lodge Park at East Point often,"
and at least eighty percent of those surveyed stated that more
open space plans for 2000 and 2008. We therefore shall accept for purposes of our discussion that the judge's findings correctly reflect the town's zoning bylaw during the relevant period. Cf. Stone v. Zoning Bd. of Appeals of Northborough, 496 Mass. 366, 376 n.11 (2025), citing Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 8 (1981) (appellate court may not take judicial notice of zoning bylaws not included in record on appeal).
10
emphasis should be placed on protecting open space, conserving
natural areas, and providing access to the coastline.
Similarly, ninety-five percent of those surveyed for the town's
2000 plan desired "at least some emphasis on the protection of
open space and general aesthetic quality," as well as
conservation and "public access to the shoreline or to natural
areas." In addition, "Lodge Park / East Point" was listed as
one of the five most frequently visited areas by those surveyed
for the 2000 plan. In describing East Point, the town's 2008
plan reported that Northeastern "maintains much of [its] land as
an undeveloped ecological study area," that the town had
"transformed" portions of Lodge Park into a "sculpted rolling
meadow," and that "[r]esidents and visitors come to the site
regularly for walking, jogging, birdwatching, bass fishing, and
viewing the magnificent scenery." The 2008 plan went on to
characterize East Point as a "vital resource, both as a natural
habitat for wild plants and migrating birds and as a passive
recreational area" for residents.
These town plans did not, however, contain any discussion
of acquiring the Northeastern parcel, by eminent domain or
otherwise. While the plans contained general recommendations
that the town consider "sites for acquisition," they made no
11
recommendation concerning the Northeastern parcel in particular.6
In addition, while the 1989, 2000, and 2008 plans identified the
Northeastern parcel as among the publicly and privately owned
sites used by residents for conservation and recreational
purposes, the town's 2016 open space and recreation master plan
focused only on town-owned spaces and did not list the
Northeastern parcel in analyzing the town's "active and passive
recreation resources."
Northeastern has since made public its plans to expand its
existing campus on the Northeastern parcel. As part of the
project, Northeastern seeks to build a new 55,000 square foot
building, as well as new parking areas. The project also calls
for the construction of an approximately one-acre geothermal
wellfield comprising eighty wells for heating and cooling the
new building, to be located east of the Murphy Bunker.
Representatives of Northeastern made a presentation outlining
the plans at a special meeting of the town's board of selectmen
on February 15, 2018.
6 The 2008 plan does state with respect to site acquisition that "[s]pecial attention will be given to the important 'buffer' areas around East Point," among other locations. The town's planning board also issued a report in 1986 making a passing reference to "[a]n area of lowlands at East Point, currently owned by Northeastern University," being "considered for acquisition."
12
Immediately following the presentation, all three members
of the town's board of selectmen announced their opposition to
the project. One member stated that the town needed "to take
every step . . . legally" to halt the project, because the town
was "way too small" for it; later in the meeting, he commented
that he would be willing to "go to jail" to "stop the project."
Another member stated, "This is the beginning . . . of probably
a long legal battle, but I say we do the battle." The board
chair moved to consider seeking a court injunction to halt the
project if Northeastern submitted a permit application, and the
board unanimously approved the motion.
Residents in attendance at the meeting then spoke and
expressed a variety of objections to the project. A number of
residents questioned the project's impact on the small town's
existing infrastructure and the possibility of increased
traffic, parking demands, and public safety issues. Others
voiced concerns about possible disruption to wildlife, the
existing habitat, views from Lodge Park, and the beauty of East
Point and Nahant more generally. Residents also expressed
frustration at a perceived lack of transparency from
Northeastern as to the size, scope, and purpose of the project
and a perceived failure by Northeastern to work cooperatively
with town residents.
13
Two months after Northeastern's presentation, 1,683
residents signed an open letter requesting that Northeastern
"halt all expansion" of the campus and study the environmental
impact of the campus's existing system of pumping seawater
through the Marine Science Center. The letter stated that the
proposed project was "not a fit" for the town's "scenic
residential community," referenced concerns about the potential
impact on bird and wildlife habitats, and objected to increased
municipal burdens of various kinds:
"A new entrance into the Marine Science Center will alter
traffic flow. A proposed parking lot will increase traffic
from cars, delivery trucks, and shuttles, thus putting more
strain on our infrastructure. Also, your proposed project
jeopardizes the fiduciary position of Nahant, and may be
detrimental to public safety, public health, and cause the
inability to provide necessary services that the residents
of this community deserves [sic]."
In the summer of 2018, Northeastern representatives met with
residents to discuss their concerns and ultimately made a number
of modifications to the project. The following summer,
Northeastern commenced preconstruction activities on its parcel,
including the clearing of approximately one-half acre of land in
an area east of the Murphy Bunker.
In the interim, town officials began pursuing legal action
to stop the project. Approximately six weeks after
Northeastern's presentation, the board of selectmen held an
executive session meeting to educate itself on eminent domain.
14
The town also formed a "Northeastern liaison committee" to
assist the board of selectmen in responding to the project. The
liaison committee met with an attorney who specialized in
eminent domain. It is undisputed for purposes of summary
judgment that, during this meeting, the committee discussed that
obtaining authority to take the property by eminent domain would
"give the [t]own leverage in its negotiations with
Northeastern." It is also undisputed that the town had never
discussed an eminent domain taking of the property prior to
Northeastern's announcement of the proposed project, and that
the town decided to pursue eminent domain when it felt it had
exhausted any possibility of negotiating a different site for
the project.
In connection with this contemplated legal action, the town
received a series of donations from the Nahant Preservation
Trust, Inc., a nonprofit organization dedicated to preservation,
including a $3 million donation earmarked in a gift agreement
for the purpose of taking the Northeastern parcel and smaller
donations intended to pay for the town's attorney's fees. The
town also entered into a common interest agreement with the
nonprofit organization to authorize the exchange of confidential
and privileged information related to anticipated litigation
regarding the Northeastern parcel.
15
In 2020, the board of selectmen issued two public
statements concerning Northeastern's project to residents of the
town. In March, the board announced its decision to pursue an
eminent domain taking of a portion of Northeastern's parcel "to
actively preserve the Wildlife Preserve at East Point by
acquiring the property rights necessary to do so." The board
stated that it would also seek easement rights for Canoe Beach
because Northeastern had threatened to close public access to
the beach. The board acknowledged that the cost of the taking
would be "significant," but stated that "we must save [the
Wildlife Preserve at East Point] for future generations of
Nahant residents, open space, wildlife, conservancy and
safe[]keeping."
In August 2020, the board of selectmen issued a second
statement to residents, comparing the cost of pursuing a taking
to the cost of allowing Northeastern's project to move forward.
The board prefaced this assessment by stating that, "[w]hile our
goal is to preserve East Point and our access to it, we
understand that the financial implications for the community are
of utmost importance." The board asserted that residents' tax
burden would be less "if East Point remain[ed] undeveloped via
eminent domain," observing that Northeastern's project would
result in additional demands on local infrastructure, and that
the resulting financial costs would be shouldered by taxpayers.
16
The board also stressed that the property would "soon be
developed unless [residents] use[d their] vote to prevent it."
In 2021, the board of selectmen placed an article on the
warrant for the annual town meeting to authorize the taking of
easement rights to the Northeastern parcel. As relevant here,
it asked residents whether to authorize the board to "acquire,
by gift, negotiated purchase, eminent domain taking (pursuant to
[G. L.] c. 80A exclusively), or otherwise, the fee simple
interest or any lesser interest in all or a portion" of the
Northeastern parcel "for open space, recreation, conservation
and/or historic preservation purposes and an easement to use
certain portions for beach purposes."
At the annual town meeting on May 15, 2021, members of the
board of selectmen and town residents who favored authorizing a
taking provided a variety of reasons in support. The stated
reasons included both concern about financial and infrastructure
burdens from Northeastern's project and the desire to conserve
the landscape of East Point. By a vote of 647 to 271, attendees
voted to authorize the board of selectmen to pursue taking an
easement interest in the Northeastern parcel. The town
residents also voted 655 to 14 to appropriate $1.5 million to
help pay for the taking, using funds obtained through the
Community Preservation Act, G. L. c. 44B.
17
Thereafter, the board of selectmen voted to issue an order
of intention declaring the town's intent to take by eminent
domain two conservation easements and an access easement over
approximately twelve acres of the Northeastern parcel in total.7
Under the order of intention, the conservation easements would
prohibit Northeastern from constructing new buildings in the
easement areas -- thereby preventing the construction of the new
55,000 square foot building -- but would allow for continued
maintenance and use of existing structures. In addition, the
proposed access easement would grant a public right to access
and use Canoe Beach for outdoor recreational purposes.
7 The order of intention described the purpose of taking these property rights as follows:
"[T]o preserve the East Point Easement Areas (as
hereinafter defined) in perpetuity in their natural,
scenic, and open condition and to protect against any use
of the East Point Easement Areas that will interfere with
the conservation values of said property. The public
benefits resulting from conservation of the East Point
Easement Areas . . . include, without limitation: the
preservation of open space for the use and enjoyment of the
general public, the creation and buffering of an expanded
[Lodge Park], . . . the protection of the scenic and
natural beauty and character of the East Point Easement
Areas, the protection of public access to the sea, the
protection of wildlife habitat, wildlife connectivity and
biodiversity, the reduction of pollution and improvement of
air quality, the provision of a buffer to sea level rise,
the promotion of resiliency and protection against climate
changes, and the protection of the public passive
recreational use of the land."
18
Shortly thereafter, the town filed a petition in the
Superior Court under G. L. c. 80A, § 4, requesting authorization
to take the property interests set forth in the order of
intention. Northeastern answered and opposed the petition,
asserting that the taking should be deemed invalid on a number
of grounds.
Following discovery, the parties filed cross motions for
summary judgment. As relevant to this appeal, Northeastern
advanced two reasons why the taking was invalid. First, in its
motion for summary judgment, Northeastern argued that undisputed
facts in the record demonstrated that the purported public
purpose for the taking was pretextual, and that the town instead
initiated the taking in bad faith for the sole purpose of
stopping Northeastern's project. Second, in opposing the town's
motion for summary judgment, Northeastern argued that the town
was not entitled to summary judgment because Northeastern had
adduced evidence that the town's taking authority had been
commandeered by private persons within the town for their own
personal benefit, rather than for the benefit of the town as a
whole.
After holding a hearing, a Superior Court judge granted
summary judgment in favor of Northeastern. The judge concluded
that there was no dispute of material fact that "the dominant
reason" for the taking was not the proper purpose of
19
"preserv[ing] the East Point [e]asement [a]reas . . . for open
space and conservation purposes," as stated in the town's order
of intention; instead, the town's true purpose was "to stop
Northeastern's development project because it would purportedly
detract from the town's scenic and residential nature." Based
on his view that the town had thus given a pretextual reason for
the taking, the judge concluded that the town acted in bad
faith, requiring dismissal of the town's petition. On May 12,
2025, judgment entered, dismissing the petition and awarding
Northeastern over $1 million in attorney's fees, expert fees,
and costs under G. L. c. 80A, § 13.8 The town appealed, and we
granted its application for direct appellate review.
Discussion. On appeal, the town argues that the judge
should have allowed summary judgment in its favor. The town
contends that undisputed facts show that the town had a valid
and indeed quintessential public purpose for the taking, and
that the facts here do not resemble the extreme circumstances in
which we have invalidated a taking based on a municipality's bad
faith. Moreover, the town argues, an otherwise lawful taking
for a public purpose is not invalid merely because its cost is
8 The town contests the propriety of awarding attorney's fees and expert fees under G. L. c. 80A, § 13. Deciding the case as we do, we do not reach the issue.
20
paid for by private actors who will obtain an incidental benefit
from the taking.
In response, Northeastern urges us to affirm the entry of
summary judgment in its favor on the ground that the town sought
to use eminent domain for the unlawful purpose of blocking
Northeastern's development. Northeastern argues that preserving
a town's scenic character is not a valid public purpose, and
that, in any case, use of eminent domain for the dominant reason
of blocking a development is tantamount to bad faith, regardless
of whether the town also has other motivations for the taking.
Northeastern alternatively argues that, even if the judge erred
in granting summary judgment to Northeastern, the case must be
remanded for trial, because Northeastern adduced evidence of bad
faith on the part of the town, as well as evidence that the
taking's true purpose was to benefit private actors who opposed
the project.
We review decisions allowing summary judgment de novo. See
Ryan v. Mary Ann Morse Healthcare Corp., 497 Mass. 271, 278-279
(2026). Where, as here, the parties cross-moved for summary
judgment based on undisputed facts in the record, we examine
each motion to "determine whether the moving party is entitled
to judgment as a matter of law after viewing the evidence in the
light most favorable to the opposing party and drawing all
permissible inferences and resolving any evidentiary conflicts
21
in the opposing party's favor." Id., citing Dzung Duy Nguyen v.
Massachusetts Inst. of Tech., 479 Mass. 436, 448 (2018). If the
party opposing the motion would bear the burden of proof at
trial, the "moving party may satisfy its burden . . . either by
submitting evidence that negates an essential element of the
opposing party's case or by demonstrating that the opposing
party has no reasonable expectation of proving an essential
element of [its] case at trial" (quotation omitted). Ryan,
supra at 279, quoting Tody's Serv., Inc. v. Liberty Mut. Ins.
Co., 496 Mass. 197, 199 (2025).
We first address whether the taking has a valid public
purpose. Concluding that it does, we next consider whether the
taking is nonetheless invalid due to bad faith on the part of
the town or the involvement of private actors financially
supporting, and incidentally benefiting from, the taking.
Finally, we address Northeastern's public policy argument
relating to the Dover Amendment, G. L. c. 40A, § 3.
1. Public purpose. This dispute arises under G. L.
c. 80A, "a statutory framework for so-called 'straight
condemnations,' in which no taking occurs until the amount of
valuation of the property is determined by a court." Abuzahra
v. Cambridge, 486 Mass. 818, 819 n.3 (2021). To begin this
process, town officials first adopt and record an order of
intention to take a property, as the town's board of selectmen
22
did here. See G. L. c. 80A, §§ 2, 3. They then file a petition
in the Superior Court "to establish [the town's] right to take
the property" and to determine the appropriate amount of
compensation and damages. G. L. c. 80A, § 4. If, as
Northeastern did, a landowner "denies the right of the
petitioner to . . . take . . . [its] property" or "impugns the
validity or regularity of the proceedings," the Superior Court
must "hear and determine the issue" and then may either dismiss
the petition or enter "an order establishing the right of the
petitioner to take the real estate, or interest therein." G. L.
c. 80A, § 7. In the event that the court determines the town
has the right to take the property, "commissioners are appointed
to hear and determine any issue as to the sufficiency of
compensation or damages." Swampscott v. Remis, 350 Mass. 523,
525 (1966), citing G. L. c. 80A, § 8.9
For any such taking to be constitutionally permissible,
art. 10 of the Massachusetts Declaration of Rights and the Fifth
Amendment to the United States Constitution require that the
9 Municipalities rarely pursue eminent domain takings under G. L. c. 80A, and instead typically proceed under G. L. c. 79, the so-called "quick take" statute. See Abuzahra, 486 Mass. at 818, 819 n.3. We therefore have had few occasions to consider takings under G. L. c. 80A, and the parties' briefs principally cite to cases concerning the validity of takings under G. L. c. 79. No party has argued that the differences between the statutory schemes are relevant to the questions presented in this appeal.
23
taking "be made for a legitimate public purpose" and that the
landowner "receive just compensation." Cobble Hill Ctr. LLC v.
Somerville Redev. Auth., 487 Mass. 249, 262 (2021) (Cobble
Hill). If a taking does not have a public purpose, "[n]o amount
of compensation can authorize such action." Lingle v. Chevron
U.S.A. Inc., 544 U.S. 528, 543 (2005).
The concept of a public purpose for taking property is
construed "broadly," in accord with "our longstanding policy of
deference to legislative judgments in this field." Cobble Hill,
487 Mass. at 263, quoting Kelo v. New London, Conn., 545 U.S.
469, 480 (2005). See, e.g., Blakeley v. Gorin, 365 Mass. 590,
598 (1974) ("It is not necessary . . . that the land thereafter
be devoted to a public use," so long as "taking is accomplished
for a public purpose"). "[T]he [L]egislature, not the
judiciary, is the main guardian of the public needs to be served
by social legislation," and "[t]he role of the judiciary in
determining whether . . . [the power of eminent domain] is being
exercised for a public purpose is an extremely narrow one."
Id., quoting Berman v. Parker, 348 U.S. 26, 32 (1954). The
Legislature's exercise of this authority "may be delegated by
statute to the cities and towns," Burnham v. Mayor & Aldermen of
Beverly, 309 Mass. 388, 389 (1941), and a town's exercise of
such delegated authority, "duly recorded, in conformity with the
statute, is to be treated as if it were a statute," Boston v.
24
Talbot, 206 Mass. 82, 90 (1910) (Talbot). A court may review
the discrete question whether a taking was for a public purpose,
but, if the court concludes that it was, the taking's necessity
or expedience is a legislative question beyond the scope of the
court's review. See Luke v. Massachusetts Turnpike Auth., 337
Mass. 304, 308 (1958), and cases cited; Talbot, supra at 89-90.
In determining the purpose of a taking, as with our review
of any legislative act, the court ordinarily does not "inquire
into the motives" of the individual members of the legislative
body that voted to effect the taking. Talbot, 206 Mass. at 91,
quoting Soon Hing v. Crowley, 113 U.S. 703, 710 (1885). See
generally Durand v. IDC Bellingham, LLC, 440 Mass. 45, 51-52
& n.11 (2003), and cases cited. Thus, for example, in
Despatchers' Cafe Inc. v. Somerville Hous. Auth., 332 Mass. 259,
263-264 (1955), where there was "no allegation that the [housing
authority did] not intend to carry out the project for which the
land [was] to be taken" for the proper public purpose of
redressing slum-like conditions, the plaintiffs could not
succeed by "attacking merely the impelling motives of officers
authorized to exercise the power of eminent domain and actually
exercising that power for authorized purposes." See id. at 262-264 (taking alleged to be improperly motivated by "desire to
change the area from one predominantly residential to one
exclusively industrial" to attract businesses to city and
25
increase tax revenues). Contrast HTA Ltd. Partnership v.
Massachusetts Turnpike Auth., 51 Mass. App. Ct. 449, 456 (2001)
(reversing dismissal of complaint seeking rescission of taking
where stated public purpose for taking was to satisfy certain
Federal requirements, but defendant allegedly was aware of
studies showing property to be unsuitable for meeting those
requirements).
Here, the purposes identified in the town's order of
intention for the taking -- to preserve the easement land "in
perpetuity in [its] natural, scenic, and open condition . . .
for the use and enjoyment of the general public" and to "protect
against" any uses that would "interfere with the conservation
values" of the property -- are quintessential public purposes.
Article 97 of the Amendments to the Massachusetts Constitution,
adopted in 1972, explicitly declares that "the protection of the
people in their right to the conservation . . . of the . . .
forest, water, air and other natural resources" is "a public
purpose." Article 97 replaced art. 49, which was adopted in
1918 and similarly provided that "[t]he conservation,
development and utilization of the . . . forest, water and other
natural resources of the commonwealth are public uses." And,
even prior to the adoption of art. 49, we had recognized the
validity of taking land for conservation purposes. See, e.g.,
Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371,
26
374 (1913) (Salisbury) ("plainly" within power of Legislature to
exercise power of eminent domain to acquire land for
"establishment and maintenance of public parks and
reservations"). See also Smith v. Westfield, 478 Mass. 49, 58-62 (2017) (describing common-law protections for public parks);
Opinion of the Justices, 383 Mass. 895, 918 (1981), quoting Rep.
A.G., Pub. Doc. No. 12, at 139, 141 (1973) (art. 97 furthers
"public purposes deemed important in our laws since the
beginning of our Commonwealth").
The order of intention also lists various anticipated
public benefits of taking the easements, such as protecting "the
scenic and natural beauty and character" of the area, that
similarly constitute valid public purposes. Contrary to
Northeastern's argument, preserving or enhancing the scenic
character of an area is a valid public purpose. See Kelo, 545
U.S. at 481, quoting Berman, 348 U.S. at 33 ("It is within the
power of the [L]egislature to determine that the community
should be beautiful as well as healthy . . ."); Worcester
Knitting Realty Co. v. Worcester Hous. Auth., 335 Mass. 19, 24
(1956) ("The improvement of the appearance and attractiveness of
a project area is a valid public purpose"); General Outdoor
Advertising Co. v. Department of Pub. Works, 289 Mass. 149, 185
(1935) ("Grandeur and beauty of scenery contribute highly
important factors to the public welfare of a State," and
27
"preserv[ing] such landscape from defacement . . . is a public
purpose"). Indeed, along with its recognition of conservation
as a public purpose, art. 97 expressly states that the "people
shall have the right to . . . the natural, scenic, historic, and
esthetic qualities of their environment." And both our
Legislature and the United States Congress have charged agencies
with maintaining scenic areas for the benefit of the public.
See, e.g., G. L. c. 21, § 1 (Department of Conservation and
Recreation "shall have control and supervision of such parks,
forests, and areas of recreational, scenic, or historic
significance as may be from time to time committed to it"); 54
U.S.C. § 100101(a) (National Park Service to regulate use of
National Park System in conformance with its purpose "to
conserve the [parks'] scenery, natural and historic objects, and
wild life").
The town's stated purpose of taking the disputed easements
to preserve the land for open space and conservation purposes
thus constitutes a valid public purpose for exercising the
town's eminent domain authority under G. L. c. 80A.
2. Bad faith. Northeastern nonetheless claims that the
taking is invalid under Pheasant Ridge, 399 Mass. at 775, in
which we held that "a municipal land taking, proper on its face,
may be invalid because it was undertaken in bad faith." "Bad
faith in the use of the power of eminent domain . . . includes
28
the use of the power . . . solely for a reason that is not
proper, although the stated public purpose or purposes for the
taking are plainly valid ones." Id. at 776.10 Here,
Northeastern claims, the taking was undertaken in bad faith
because the town's stated public purpose is not its true purpose
for taking the easement rights.
Northeastern's claim of bad faith rests on evidence showing
that the town used its eminent domain authority specifically in
order to block Northeastern's project. Many town residents
expressly stated this intent in vehement terms; some also spoke
of using the prospect of a taking as "leverage" in negotiations
with Northeastern; and the town had not discussed taking the
parcel by eminent domain before Northeastern announced its
project. Northeastern also points to evidence showing a variety
of reasons why members of the board of selectmen and town
residents opposed Northeastern's project, apart from a desire to
conserve East Point. For example, opponents of the project
analyzed and expressed concern about the project's potential
negative impacts on the town's infrastructure, as well as
potential financial costs to residents; one member of the board
10 Elsewhere in Pheasant Ridge, 399 Mass. at 777 & n.5, we stated that a taking is unlawful if the improper purpose is "the dominant reason[] for the town's taking," but that, in the circumstances of that case, we did not need to "define dominant reason with precision." The same is true here.
29
of selectmen stated that the project would pose a "very real
risk of a tax increase" on residents, and that this was "doubly
unfair" given that Northeastern does not pay property taxes to
the town. Based on this evidence, Northeastern contends that
the undisputed record establishes that the dominant reason for
the taking was not to conserve the land but instead to block
Northeastern's project.
We begin by reiterating, as we said in Pheasant Ridge, 399
Mass. at 777, that "[w]e should not easily attribute improper
motives to a town, and to its citizens voting at town meeting,
if there were valid reasons that would have supported the town's
action." As we have already discussed, a town's exercise of its
eminent domain authority is a legislative act and as such is
entitled to a presumption of validity. See Durand, 440 Mass. at
51-52 & n.11; Talbot, 206 Mass. at 90. We have previously
recognized the impropriety, and fundamental infeasibility, of
inquiring into the minds of each person who voted to approve a
taking as a basis for invalidating the action:
"Apparently the plaintiffs expect to show by oral evidence
that the authority's motives are not what they purport to
be. . . . If the plaintiffs can do that in this case, any
person whose land is about to be taken for a public purpose
can do the same. If land is about to be taken for a
schoolhouse, the owner can bring suit claiming that the
motive of the authorities for the proposed taking is not
really that a schoolhouse is needed, but is to improve the
appearance of the street, to advertise the community, to
give jobs to contractors and workmen, to make themselves
popular with the parents of the children, or is whatever
30
other motive ingenuity and the plausibilities of the
situation may suggest."
Despatchers' Cafe Inc. 332 Mass. at 263. "To permit" such
inquiries as the basis for invalidating a taking thus would
"seriously . . . hamper public officers in the performance of
duties necessary to the public welfare." Id. See Talbot, supra
at 91. See also Simon v. Needham, 311 Mass. 560, 566 (1942)
("The action of the voters is not to be invalidated simply
because someone presented a reason that was unsound or
insufficient in law to support the conclusion for which it was
urged"); Knowles v. Codex Corp., 12 Mass. App. Ct. 493, 498
(1981) ("We think it axiomatic that a court will not entertain a
claim for relief which necessarily depends for its proof on
interrogating the voters as to how and why they exercised their
rights to vote by secret ballot").
Our decision in Pheasant Ridge did not overturn this longstanding principle. There, the plaintiffs had applied for a
comprehensive permit under G. L. c. 40B, §§ 20-23, seeking to
build a development that would include low and moderate income
housing on land zoned for light commercial, municipal, and
single-family residential use. Pheasant Ridge, 399 Mass. at
773. The proposed development met with town-wide opposition,
and, while the plaintiffs' application remained pending, the
town voted to take the property for the stated "purpose of
31
parks, recreation, and the construction of moderate income
housing." Id. at 772-773 & n.3. The town had not previously
considered acquiring the plaintiffs' land, or any parcel in that
general vicinity, for park or recreational uses, despite
conducting studies of the town's recreational needs. Id. at
778. Nor was there any indication that the town was seeking to
provide moderate income housing in that area. Id. Rather,
these ostensible purposes had been developed by town officials
"within minutes" of the town meeting at which the taking was
authorized, and without consulting any of the town agencies that
normally would have been involved in considering such actions.
Id. Further still, the record showed "beyond question" that
voters were not asked to consider the merits of acquiring the
land for the specified purposes, but instead were effectively
told by the chairman of the board of selectman that these
purposes had been chosen in a pretextual attempt to legitimate
the taking. Id. at 779 & n.8.
We concluded that this "record require[d] the inference
that the town, acting through its town meeting, was concerned
only with blocking the plaintiffs' development." Pheasant
Ridge, 399 Mass. at 779. We reasoned that, while "[t]he town
[was] not bound by the statements of the chairman of the board
of selectmen," the town was indeed bound "when, after hearing
the chairman's uncontested remarks and without any consideration
32
by any town agency or the town meeting itself of the merits or
the relative merits of the acquisition of the site for the
purposes stated, the town meeting voted to take the property."
Id. at 779-780. In these circumstances, where the town's
actions showed that the "public purposes for which the site
purportedly was to be taken were not purposes for which the town
intended in good faith to take and use the property," the taking
was invalid. Id. at 779.
Northeastern has no reasonable expectation of proving the
same with respect to the town's actions here. This conclusion
follows from undisputed facts regarding the nature of the
particular property at issue, prior actions by the town evincing
interest in the property as part of an area of open space and
recreation, and the method of the taking itself. See Benevolent
& Protective Order of Elks, Lodge No. 65 v. Planning Bd. of
Lawrence, 403 Mass. 531, 552-553 (1988) (Elks Lodge) ("In
examining a municipality's proposed exercise of the power of
eminent domain for inferences of bad faith, we consider whether
the municipality has evinced prior interest in the area or its
neighborhood, and whether its method of acquiring the property
accords with usual practices").
The record here shows that the town has indeed evinced
relevant interest in both East Point generally and
Northeastern's parcel in particular. As the Superior Court
33
judge correctly determined, the relevant factor with respect to
a town's prior interest is not whether the town previously had
considered taking that same property by eminent domain, but
rather whether the town had "evinced prior interest in the area
or its neighborhood" in respects germane to the stated public
purpose of the taking. Elks Lodge, 403 Mass. at 552 (discussing
various manifestations of city's prior interest in riverfront
area and its development before taking alleged to be for benefit
of private party). See Pheasant Ridge, 399 Mass. at 778
("Although not controlling, the absence of any prior town
interest in the site or its neighborhood is instructive on the
matter of good faith"). As discussed, the Northeastern parcel
consists of wooded, coastal, and beach land in the area east of
Northeastern's existing campus. Open space and recreation plans
issued by the town in recent decades document interest from town
residents in conservation and open space on East Point and make
specific references to Northeastern's parcel. After the town
acquired its own parcel of land on East Point, residents voted
to create a public park there in 1986. The town's park still
exists today, adjacent to Northeastern's parcel, and is
accessible to members of the public seeking outdoor recreation
only via the town's existing access easement over the
Northeastern parcel. And, since 1991, the town has designated
the Northeastern parcel as part of the town's natural resource
34
zoning district, which is intended for the preservation of open
space and conservation uses. Contrast Pheasant Ridge, supra (no
"parcel in the general vicinity of" taking had been considered
for park, recreational, or low or moderate income housing
purposes).
The terms of the taking -- imposing conservation easements
over a portion of the parcel and taking a public access easement
in relation to Canoe Beach -- accord with these prior actions by
the town evincing interest in the land. Indeed, the easements
by their nature will effect the town's stated purpose of
preserving the land for open space and conservation. See Elks
Lodge, 403 Mass. at 552, quoting Pheasant Ridge, 399 Mass. at
777 (we draw inferences concerning municipalities' "intentions
from what they have done and what they have not done").
Contrast Pheasant Ridge, supra at 779 n.7 (town's ability to
carry out its purported intent to build moderate income housing
on land "would at best be in doubt," where land was also
ostensibly taken for park purposes).
Moreover, Northeastern has not adduced evidence that the
manner in which the town conducted the proceedings to take the
easements deviated from its usual practices as a town. Unlike
in Pheasant Ridge, town officials did not move forward with the
taking without consulting committees that would ordinarily be
involved in the process. See Pheasant Ridge, 399 Mass. at 778
35
(town's finance committee was not informed of public purpose for
taking prior to town meeting). Rather, the town's advisory and
finance committee, which functions in a fiscal advisory role for
the town, published a report and recommendation assessing the
estimated cost of the taking. Cf. Despatchers' Cafe Inc., 332
Mass. at 263 ("In determining whether the project was one that
ought to be undertaken it would seem proper to give some
consideration to the economic effects upon the city which was
expected to pay one third of the cost"). Far from fabricating a
public purpose mere minutes before the town meeting vote as in
Pheasant Ridge, supra, the town issued a warrant in advance of
the 2021 town meeting informing voters that the taking would be
"for open space, recreation, conservation and/or historic
preservation purposes." And, rather than a complete absence of
debate among town residents on the merits of the taking, cf. id.
at 780, the town meeting here included a lengthy debate, with
some speakers -- albeit not all11 -- advocating in favor of the
taking for reasons reflected in the ensuing order of intention.
11As Northeastern appropriately concedes, it cannot show that the taking was in bad faith based solely on the diverse remarks made at the town meeting by residents who opposed Northeastern's project. See Pheasant Ridge, 399 Mass. at 779-780. An argument based solely on these remarks would fall squarely in the category of "a claim for relief which necessarily depends for its proof on interrogating the voters as to how and why they exercised their rights to vote by secret ballot." Knowles, 12 Mass. App. Ct. at 498.
36
We note further that, even under the extraordinary
circumstances present in Pheasant Ridge, 399 Mass. at 778, we
stated that the taking in that case may have been permissible if
the town had "truly intended that the land should be used for
the purposes for which it was taken." Here, there is no
evidence that the town "does not intend to carry out the
purposes for which the land in the area is to be taken." Bowker
v. Worcester, 334 Mass. 422, 430 (1956). As stated, the land is
already zoned as part of the natural resource zoning district,
which limits use of the land to purposes consistent with those
for which the easements will be taken. Moreover, the property
interests sought by the town are tailored to the stated public
purposes for the taking: access and conservation easements that
would provide the public with the right to "access and use" the
easement areas "for outdoor recreational purposes"
specifically.12 Contrast Despatchers' Cafe Inc., 332 Mass. at
263 (suggesting that taking would be improper "where the
authorities ostensibly taking land for a schoolhouse have no
intention of building any schoolhouse at all but are really
12In addition, the town has voted to finance the taking in part with Community Preservation Act funds obtained under G. L. c. 44B, which ordinarily must be dedicated to conservation uses. See G. L. c. 44B, § 5 (b); Seideman v. Newton, 452 Mass. 472, 474, 480 (2008).
37
taking the land to let it lie open for the benefit of adjoining
land owned by themselves or for some other irrelevant purpose").
In sum, the record here does not approach the extraordinary
circumstances of Pheasant Ridge. The town's stated public
purpose for the taking is a proper public purpose; this public
purpose is consistent with past town actions evincing interest
in the area of the taking; the town did not deviate from its
usual practices in proceeding with the taking; and there is no
material dispute that the taking in fact will be used for the
town's stated public purpose.
On this record, Northeastern has no reasonable expectation
of proving that the town's taking was in bad faith on the ground
that the dominant reason for the taking was "solely to block"
Northeastern's project. Pheasant Ridge, 399 Mass. at 777. To
be sure, it is undisputed that the town pursued the taking in
response to Northeastern's announcement of the project, that
there was vehement opposition to the project on the part of town
officials and residents, and that the taking would in effect
block the project. However, it is axiomatic that taking a
conservation easement will have the effect of preventing
development; preventing development is the very purpose of
imposing such an easement on land valued as an open space
resource. See generally Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1018-1019 (1992) (acknowledging "[t]he
38
many statutes on the books, both [S]tate and [F]ederal, that
provide for the use of eminent domain to impose servitudes on
private scenic lands preventing developmental uses"). In light
of these overlapping aims of conservation and preventing
development, attributing to the town a dominant bad faith reason
for the taking "solely" focused on blocking Northeastern's
project in the circumstances here -- where, again, the town
previously had taken actions evincing interest in the area
consistent with the town's stated purpose for the taking, the
town pursued the taking in accordance with its usual procedures,
and there is no material dispute that the taking will in fact be
used for the stated public purpose -- would be at odds with our
reluctance to attribute improper motives to a town, and with the
presumption of validity we accord a town's legislative acts at
town meeting. See Pheasant Ridge, 399 Mass. at 777. See also
Durand, 440 Mass. at 51-52 & n.11; Talbot, 206 Mass. at 91.
Invalidating the taking on this basis alone in the circumstances
here also would be in tension with "our longstanding policy of
deference to legislative judgments" as to the necessity for a
taking, Cobble Hill, 487 Mass. at 263, quoting Kelo, 545 U.S. at
480, because it is for a town to decide if and when to take
property for proper conservation and open space purposes, and
such a taking may not appear warranted so long as a private
landowner leaves open space undeveloped.
39
Northeastern thus has no reasonable expectation of proving
on this record that the town's taking is in bad faith on the
theory that the taking had the sole purpose of blocking
Northeastern's project.
3. Private interests. Northeastern alternatively argues
that disputes of material fact remain as to its separate theory
that the taking was improper because it was intended to benefit
private persons who have funded and advocated for the town's
efforts to use its eminent domain authority.13 We disagree.
"A purely private taking could not withstand the scrutiny
of the public use requirement; it would serve no legitimate
purpose of government and would thus be void." Kelo, 545 U.S.
at 477, quoting Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 245
(1984). See Pheasant Ridge, 399 Mass. at 775 (use of power of
eminent domain "solely to benefit some private person or persons
would be . . . grounds for declaring a taking invalid"). "Nor
would the [town] be allowed to take property under the mere
pretext of a public purpose, when its actual purpose was to
bestow a private benefit." Kelo, supra at 478.
13Northeastern did not move for summary judgment on this alternative ground, but it was fully briefed in the parties' filings concerning the town's motion for summary judgment. The judge below did not reach the issue, having ruled on other grounds that Northeastern was entitled to summary judgment, but the issue is properly before us on de novo review of the summary judgment record. See Ryan, 497 Mass. at 278-279.
40
But a taking that does have a valid public purpose "is not
void merely because the disposition of that land indirectly
benefits private individuals." Elks Lodge, 403 Mass. at 551.
See Kelo, 545 U.S. at 485 ("Quite simply, the government's
pursuit of a public purpose will often benefit individual
private parties"). See, e.g., Luke, 337 Mass. at 311 ("[the
fact] that the number of probable users [of a private way
created via eminent domain] is not large does not invalidate the
taking"). Nor is a taking with a public purpose invalid on the
ground that it is requested, financially supported, or advocated
for by a private party. See, e.g., Machado v. Board of Pub.
Works of Arlington, 321 Mass. 101, 104-105 (1947), and cases
cited ("the mere fact that [landowner] may have agreed to
reimburse the town for the cost of the taking [to extend the
town's sewer system to his property] would not render it
invalid" where project had public purpose); N. Ward Co. v.
Street Comm'rs of Boston, 217 Mass. 381, 386 (1914) (taking not
invalid for having been requested by city contractor where
taking's primary object was public purpose of building garbage
disposal plant).
These principles foreclose Northeastern's argument that the
taking may be invalidated based on evidence of financial
support, influence, and advocacy in support of the taking from
the Nahant Preservation Trust, Inc., and other private actors
41
who, Northeastern contends, seek to forestall "any increase in
traffic, loss of privacy[,] or diminution of view" caused by
Northeastern's project. As discussed, the taking has a proper
public purpose, and Northeastern has not adduced evidence that
the easement areas are being "seized ostensibly for [this]
public use," only to be "diverted to a private use." Sellors v.
Concord, 329 Mass. 259, 261–262 (1952), quoting Salisbury, 215
Mass. at 377. Indeed, the very nature of the easement rights
being taken undisputedly will provide a public right of access
to the easement areas for recreational and conservation uses.
Evidence that the taking is partially funded by, and also may
incidentally benefit, private actors does not invalidate its
public purpose. See Elks Lodge, 403 Mass. at 551 (taking not
invalid for disposition of land to private developer where
benefits to developer were "incidental to the main [public]
purpose" of redressing blighted open area).
4. Public policy. Finally, Northeastern argues that
authorizing an eminent domain taking in the circumstances of
this case would run afoul of public policy considerations.
Northeastern points to the Dover Amendment, which prohibits
municipalities from imposing zoning ordinances or bylaws that
"regulate or restrict the use of land or structures . . . for
educational purposes on land owned or leased . . . by a
nonprofit educational corporation." G. L. c. 40A, § 3.
42
Northeastern contends that the town, in seeking to take land
that Northeastern intends to develop for educational purposes,
is misusing its eminent domain authority to sidestep the Dover
Amendment's restrictions on the town's zoning authority.
Northeastern's public policy argument founders on the fact
that, unlike in the zoning context, the Legislature has not
chosen to impose additional limits, beyond those set by our
State and Federal Constitutions, on a town's ability to take
land used for educational purposes. While the Legislature has
chosen to restrict the scope of a town's authority to exercise
its eminent domain authority to take certain categories of land,
land used for educational purposes is not among those
categories. See, e.g., G. L. c. 79, § 5 (restricting use of
eminent domain to take land for public way, canal, or railroad
purposes if land already dedicated to certain other public uses,
not including educational uses); G. L. c. 79, § 5A (prohibiting
takings of certain lands of historical or archeological
interest, absent "leave of the general court specially
obtained"). Where the Legislature has imposed no such
restriction, public policy does not preclude the town's exercise
of its eminent domain authority for a public purpose long
recognized not only in our case law but also in our
Constitution. See art. 97 of the Amendments to the
Massachusetts Constitution; Salisbury, 215 Mass. at 374. Of
43
course, as with all takings -- and unlike the imposition of most
zoning restrictions, see Gove v. Zoning Bd. of Appeals of
Chatham, 444 Mass. 754, 761 (2005) -- the town may take the
easements only upon payment of just compensation to
Northeastern.
Conclusion. We reverse the judgment granting Northeastern
summary judgment and attorney's fees and costs. The case is
remanded for entry of an order establishing the town's right to
take the property interests described in the order of intention
and for further proceedings consistent with this opinion.14
So ordered.
14 Northeastern's request for appellate attorney's fees is denied.