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Town of Nahant v. Northeastern University

2026-09-03

Authorities cited

Opinion

majority opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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

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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

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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).

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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

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"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.

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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

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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.