Civil action commenced in the Land Court
Department on September 27, 2017.
Motions to dismiss were heard by Gordon H.
Piper, J.
The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.
George X. Pucci (Audrey A. Eidelman also
present) for the plaintiff.
Thaddeus A. Heuer for Massachusetts Bay
Transportation Authority.
Joshua A. Lewin for NSTAR Electric
Company.
Mark R. Rielly & Rachel C. Thomas, for
New England Power Company & another, amici curiae, submitted a brief.
Jessica Gray Kelly & Daniel C.
Johnston, for NAIOP Massachusetts & others, amici curiae, submitted a
brief.
GAZIANO, J. In this appeal, we consider the scope of the
common-law doctrine of "prior public use." Under this long-standing doctrine, public
lands acquired for one public use may not be diverted to another inconsistent
public use unless the subsequent use is authorized by plain and explicit
legislation. Robbins v. Department of
Pub. Works, 355 Mass. 328, 330 (1969).
Here, we are asked to extend this doctrine and to determine that the
prior public use doctrine bars the diversion of public land devoted to one
public use to an inconsistent private use.
Because such a sweeping change would not advance the purposes of the
doctrine, and would create widespread uncertainty concerning numerous existing
holdings of private land that were transferred by public entities, we decline
to adopt the municipality's proposed reworking of the doctrine. Accordingly, we affirm the Land Court judge's
decision dismissing the complaint, albeit, in part, on somewhat different
grounds.[3]
1.
Prior proceedings. In November
2017, the town of Sudbury (town) filed an amended complaint in the Land Court
seeking to prevent defendant Massachusetts Bay Transportation Authority (MBTA)
from entering into an option agreement with defendant NSTAR Electric Company,
doing business as Eversource Energy (Eversource), for an easement to install an
electric transmission line underneath about nine miles of a disused right of
way (ROW), approximately 4.3 miles of which extend through the town. The town argued that the prior public use
doctrine precludes the MBTA from transferring public land to another public
entity for an inconsistent use, here, changing the use of the ROW from the
purpose set forth in the eminent domain transfer -- the extension and
operation of mass transportation services -- to the installation and maintenance
of underground electric transmission lines, absent legislative authorization.
The first count
of the complaint sought a judgment declaring that the "inconsistent public
use is illegal under the Massachusetts prior public use doctrine unless and
until it is specifically authorized by legislation." The second count sought to enjoin MBTA's
diversion of the inactive ROW to an inconsistent public use. The defendants moved to dismiss the complaint
based on the town's lack of standing and the failure to state a claim for a
violation of the prior public use doctrine.
See Mass. R. Civ. P. 12 (b) (1), (6), 365 Mass. 754 (1974).
A Land Court judge denied the defendants'
motions to dismiss for lack of jurisdiction, see Mass. R. Civ. P.
12 (b) (1), after concluding that the town had standing to bring the
claim, albeit that "the [t]own's standing appears at the precipice of
adequacy." The judge then allowed
the defendants' motions to dismiss on the ground that the complaint failed to
state a claim upon which relief can be granted.
See Mass. R. Civ. P. 12 (b) (6). In so doing, the judge ruled that Eversource
is a private corporation and not, as the town claimed, a public entity. The judge declined the town's urging that he
extend the long-established doctrine of prior public use to situations
involving the diversion of an authorized public use of land to an inconsistent
private use. The town appealed to the
Appeals Court, and we transferred the case to this court on our own motion.
2.
Background.[4] The MBTA acquired
the ROW in part through an indenture from the trustees of the property of the
Boston and Maine Corporation (B&M), subject to an easement for B&M's
continued use of the ROW as a freight railroad, and subsequently through a
taking by eminent domain for purposes of providing and extending mass
transportation services. The MBTA has
not constructed an extension of its transportation system through the ROW, and
the ROW has been inactive as a rail line for over forty years. Although the rails and rail beds are still
extant, the area has become heavily wooded.
Multiple sections of the ROW abut environmentally sensitive areas, such
as Federal, State, and private conservation areas, a farm, a fishery, streams,
ponds, and wetlands. Numerous other
sections abut "dense" areas of private properties, some of which are
subject to conservation restrictions under G. L. c. 184,
§§ 31-33. Parts of the ROW
currently are used by the public as a walking or hiking trail, and other
stretches generally serve as wooded areas of wildlife habitat. The railroad tracks and railroad beds
formerly used by B&M have not been removed, and continue to extend through
the ROW.
The 1976 indenture from B&M provided
that, for consideration of $36,549,000, B&M granted the MBTA "all of
[B&M's] right, title and interest . . . sufficient to permit the
[MBTA] to operate a passenger and freight rail service over the rail line
rights of way . . . and to [B&M's] rights of way and other
lands thereon and including all track, signals, bridges, buildings, shops,
towers, and other improvements affixed thereto." B&M "reserve[d] unto themselves,
their successors and assigns, the right and easement as are appropriate and
necessary to the continuance of [B&M's] freight transportation
business."
In 1977, the MBTA acquired title to the
ROW in fee simple, pursuant to G. L. c. 161A, § 3 (o),
"for[, among other things,] the purpose of providing and extending mass
transportation facilities for public use."
The order of taking was made subject to the same freight easement that
was reserved to B&M in the indenture, as well as "all easements for
wires, pipes, conduits, poles, and other appurtenances for the conveyance of
water, sewerage, gas, oil, and electricity."
On June 9, 2017, the MBTA entered into an
option agreement with Eversource. The
agreement entitles Eversource to lease an easement in the ROW and to install an
underground 115-kilovolt electrical transmission line, subject to obtaining
"any necessary permits or approvals."
The option agreement further provides that the MBTA reserves the right
to relocate the transmission lines to anywhere within the ROW if the MBTA
determines that the lines are interfering with its use of the ROW for
transportation purposes. If exercised,
the agreement is expected to generate $9.3 million for the MBTA over the
subsequent twenty years.
The preferred route for the underground
transmission line, through the entire length of the ROW, is approximately nine
miles.[5] The route begins at
Eversource's Sudbury substation and travels through the ROW northwest through
Sudbury, Marlborough, Hudson, Stow, and then Hudson again. In Hudson, the transmission line would
proceed underneath public roadways to Eversource's Hudson substation.
The MBTA also has entered into a lease
agreement with the Department of Conservation and Recreation (DCR) to allow for
the construction of a segment of the Massachusetts Central Rail Trail (MCRT)
over the buried transmission lines to be placed in the ROW. Under the terms of the option agreement, the
easement granted to Eversource is subject to the provisions of the DCR lease,
and Eversource is precluded from "materially interfer[ing] with or
disturb[ing] the DCR's use of its leased premises." According to the
complaint, "Eversource and DCR are entering into a memorandum of
understanding in an effort to memorialize agreements related to design,
permitting, construction, operation, and maintenance of both the underground
electric transmission line and the above-ground publicly accessible rail trail
within the MBTA ROW. Eversource has
stated that it expects that DCR will be responsible for maintenance of the ROW
following completion of the transmission project."
The proposed transmission project is
subject to regulatory approval from the Energy Facilities Siting Board (EFSB)
and the Department of Public Utilities (DPU), as well as review under the
Massachusetts Environmental Protection Act (G. L. c. 30, §§ 61
et seq.) and the Wetlands Protection Act (G. L. c. 131, § 40), and
by the Executive Office of Energy and Environmental Affairs and the Sudbury
conservation commission. Eversource has
undertaken the approval process with respect to the EFSB and the DPU, who have
consolidated their proceedings in the matter.
In support of the town's argument that the
transmission project is a diversion of one public use to another, the complaint
states that Eversource's applications to regulatory entities describe the
proposed service and Eversource as public.
In its petition to the EFSB, Eversource maintains that the proposed
transmission lines would serve a "compelling public use and
purpose." The new transmission
lines are necessary, Eversource asserts, in order to meet its customers'
growing energy needs and to avoid service outages, which are estimated to occur
given the current facilities and increasing demand. Eversource also maintains that coupling the
underground transmission line with the MCRT would confer a "public
benefit," thus justifying approval of the project.
3.
Discussion. a. Standard of review. "We review the denial of a motion to
dismiss de novo, accepting the facts alleged in the complaint as true and
drawing all reasonable inferences in the plaintiff's favor." Edwards v. Commonwealth, 477 Mass. 254, 260
(2017), citing Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676
(2011). In assuming the facts as
alleged, however, "[w]e do not regard as 'true' legal conclusions cast in
the form of factual allegations."
Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 n.6 (2009). To survive a motion to dismiss, the
"[f]actual allegations must be enough to raise a right to relief above the
speculative level . . . [based] on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)." Iannacchino v. Ford Motor Co., 451 Mass. 623,
636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The facts alleged must "'plausibly
suggest[] (not merely [be] consistent with)' an entitlement to relief." Iannacchino, supra, quoting Bell Atl. Corp.,
supra at 557. See Revere v.
Massachusetts Gaming Comm'n, 476 Mass. 591, 609 (2017) (complaint survives
motion to dismiss "if it includes enough factual heft" to raise basis
for relief beyond speculation).
"[A] well-pleaded complaint may proceed even if it appears 'that a
recovery is very remote and unlikely.'"
Bell Atl. Corp., supra at 556, quoting Scheuer v. Rhodes, 416 U.S. 232,
236 (1974).
b.
Standing. The MBTA urges us to
affirm the Land Court judge's decision, but on the alternative ground that the
town lacked standing to bring a claim under the prior public use doctrine. "The issue of standing may be raised at
any time." See Matter of the
Receivership of Harvard Pilgrim Health Care, Inc., 434 Mass. 51, 56 (2001),
quoting Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). According to the MBTA, the judge erred in
finding "an automatic rule of injury-free municipal standing."
"To have standing in any capacity, a
[plaintiff] must show that the challenged action has caused the [plaintiff]
injury." Slama v. Attorney Gen.,
384 Mass. 620, 624 (1981). See Enos v.
Secretary of Envt'l Affairs, 432 Mass. 132, 135 (2000), quoting Bonan v.
Boston, 398 Mass. 315, 320 (1986) ("standing requires 'a definite interest
in the matters in contention in the sense that [a plaintiff's] rights will be
significantly affected by a resolution of the contested point'"). Although "it is settled that G. L.
c. 231A does not provide an independent statutory basis for
standing," Enos, supra, citing Pratt v. Boston, 396 Mass. 37, 42-43
(1985), a party has standing under the statute where the defendant has
"violated some duty owed to the plaintiff[]," Enos, supra, quoting
Penal Insts. Comm'r for Suffolk County v. Commissioner of Correction, 382 Mass.
527, 532 (1981), and where the plaintiff "can allege an injury within the
area of concern of the statute or regulatory scheme." Service Employees Int'l Union, Loc. 509 v.
Department of Mental Health, 469 Mass. 323, 328 (2014), quoting Enos,
supra. See Northbridge v. Natick, 394
Mass. 70, 75 (1985) ("An injury alone is not enough; a plaintiff must
allege a breach of duty owed to it by the public defendant").
In prior cases, this court generally has
held that cities and towns lack standing to challenge zoning board
decisions. See Hingham v. Department of
Hous. & Community Dev., 451 Mass. 501, 506 n.9 (2008) ("The town is
not a 'person aggrieved' within the meaning of this statutory
provisions"); Burlington v. Bedford, 417 Mass. 161, 165 (1994) (no
standing where there was no duty owed to town, and town's injury was too
"remote, speculative, and undefined"). See also Planning Bd. of Hingham v. Hingham
Campus, LLC, 438 Mass. 364, 368 (2003) (town's planning board was not
"person aggrieved" as required to have standing under statute). At the same time, in cases involving zoning
and permitting, abutting landowners are afforded a rebuttable presumption of
standing. See Standerwick v. Zoning Bd.
of Appeals of Andover, 447 Mass. 20, 33-34 (2006).
As the town points out, we have considered
a case involving a change in a prior public use where the plaintiff was a
municipality, see Selectmen of Braintree v. County Comm'rs of Norfolk, 399
Mass. 507 (1987) (Braintree). The town
contends that this court's decision in Braintree "establishes that the
[t]own has stated a valid claim upon which relief can be granted under the
prior public use doctrine." In
finding that the town had standing to bring its claims under the prior public
use doctrine, the judge relied on the argument the town advances concerning our
decision in Braintree, id. at 510-513.
He reasoned that we "implicitly" must have conferred standing
on the municipality in that case because we decided the case without any
discussion of the municipality's standing to bring its claim.
Our holding in Braintree, 399 Mass.
at 510-513, however, did not establish, as the town argues and the Land
Court judge appears to have adopted, "an automatic rule of injury-free
municipal standing." Nothing in
Braintree should be read to confer automatic standing where a town brings a
claim under the doctrine of prior public use.
To survive a motion to dismiss under the prior public use doctrine, any
entity, including a town, must establish standing, i.e., a claim of
individualized harm. The question then
becomes whether the complaint in this case sufficiently asserted an
individualized harm to the town, see Hingham, 451 Mass. at 506 n.9; Slama, 384
Mass. at 624, so as to withstand the motion to dismiss.
At the outset, we note that the town has
no ownership interest in the ROW itself.
The town asserts an individualized injury to town lands that abut the
ROW, cf. Standerwick, 447 Mass. at 33-34, as well as apparently implicitly
asserting representative standing on behalf of numerous others: Federal authorities who oversee Federal
wildlife refuges, State and private trustees of conservation land and farms,
and many private owners of residential properties, all of which also abut the
ROW at some point. See Slama, 384 Mass.
at 624.
The noted harms listed in the complaint,
but not further discussed after having been identified, include the loss of
27.96 acres of trees, the loss of wildlife habitat, danger to certain species
already designated as at risk, loss of recreational space, loss of aesthetic
value, and reduction in property values.
For most of these claims, the town either does not have standing to
assert them, or the asserted harm is not legally cognizable.
Of the 4.3 miles (or 22,704 feet) of the
ROW that run through the town, the town asserts that it owns various parcels,
totaling 6,145 linear feet of land, that abut the ROW, that is, approximately
twenty-seven percent of the total length of the land abutting the ROW within
the town. The complaint delineates two
Federal wildlife refuges, a farm that is run as a joint State and private
project, several areas of conservation land held under private trusts as well
as town-owned conservation parcels, wetlands, ten vernal pools, and eight
perennial streams as at risk of harm from the transmission project.[6] The complaint also asserts the diminution in
property values for the many "dense[ly]" located residential parcels
that abut the ROW, and loss of aesthetic view.[7]
The town has no standing to bring a claim
under the prior public use doctrine concerning the majority of the land
abutting the ROW in which the town has no property interest. See Slama, 384 Mass. at 624
("[o]rdinarily, one may not claim standing in this Court to vindicate the
constitutional rights of some third party"; "[r]epresentative
standing is generally limited to cases in which it is difficult or impossible
for the actual rightholders to assert their claims" [citation
omitted]). The individual property
owners and the government entities who own or manage these properties are not
in that position. They could, and in
some cases already have, pursued their own claims regarding the transmission
project before the EFSB and the DPU.
Similarly, "[d]iminution in the value
of real estate is a sufficient basis for standing only where it is 'derivative
of or related to cognizable interests protected by the applicable zoning
scheme.'" Kenner v. Zoning Bd. of
Appeals of Chatham, 459 Mass. 115, 123 (2011), citing Standerwick, 447 Mass. at
31–32. "Zoning legislation 'is not
designed for the preservation of the economic value of property, except in so
far as that end is served by making the community a safe and healthy place in
which to live.'" Kenner, supra at
123-124, citing Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495, 503–504
(1940). Thus, the "alleged
diminution in value of [town] property is not a basis for standing." Kenner, supra at 124.
While the complaint says little other than
listing the assertedly affected land and stating that loss of habitat and harm
to wildlife will result, with respect to at least a few of the asserted losses,[8]
the complaint sets forth specific, legally cognizable injuries, so long as we
accept that the injury resulting from the change to the ROW depends on some
type of legally cognizable interest that the ROW remain in its current,
disused, and overgrown condition.
As to that injury, the town seeks
injunctive and declaratory relief for harm that purportedly would arise if the
trees on the ROW were cleared to create an access road and rail trail, and the
transmission wires and containers were installed. Only if one starts with the premise that the
ROW will continue to be a rarely used strip of woodland with occasional
recreational uses is it possible to infer any type of harm from the proposed
clearing of a strip of land within the ROW, the placement of the underground
conduits and the electrical wires, and the permanent paving of a narrower strip
within the ROW. Indeed, if the MBTA
chose to resume or extend rail or bus service along the ROW, it necessarily
would have to remove, permanently, more than double the area of trees that
Eversource contemplates removing for this project. The complaint does not state any ground on
which the town would be entitled to insist that the ROW remain unused, or would
be able to preclude the MBTA from using the ROW for the explicitly authorized
purposes of operating freight and passenger rail service, as well as other mass
transportation activities, for which the MBTA paid B&M $36,549,000.
Undoubtedly it is for all of these reasons
that the motion judge found that "the [t]own's standing appears at the
precipice of adequacy" before he dismissed the case on other grounds. In these circumstances, we assume without
deciding that the town would be able to establish some individualized harm, and
therefore has standing. See Bell Atl.
Corp., 550 U.S. at 556.
c.
Doctrine of prior public use. The
doctrine of prior public use is a "firmly established" creation of
the common law, dating back to the Nineteenth Century. See Smith v. Westfield, 478 Mass. 49, 60-61
(2017), citing Old Colony R.R. v. Framingham Water Co., 153 Mass. 561, 563
(1891), and Boston Water Power Co. v. Boston & W.R. Corp., 23 Pick. 360,
398 (1839). Under this doctrine,
"public lands devoted to one public use cannot be diverted to another
inconsistent public use without plain and explicit legislation authorizing the
diversion." Robbins, 355 Mass. at
330. See, e.g., Brookline v.
Metropolitan Dist. Comm'n, 357 Mass. 435, 440 (1970) ("The principle that
land appropriated to one public use cannot be diverted to another inconsistent
use without plain and explicit legislation to that end has been well
established in our decisions"); Sacco v. Department of Pub. Works, 352
Mass. 670, 672 (1967) (specific statutory language is required to divert land
devoted to one public purpose to another inconsistent public purpose);
Higginson v. Treasurer & Sch. House Comm'rs of Boston, 212 Mass. 583, 591
(1912) (public purpose for which city has acquired land by eminent domain may
be changed to another inconsistent public use by "plain and explicit
legislation to that end"); Old Colony R.R., supra ("There can be no
doubt that the Legislature may take, or authorize a corporation to take, land
for a public use, which has previously been appropriated by legislative
authority to a different public use . . . [b]ut it will not be
deemed to have done so unless its intention so to take such land is plainly
manifested in the statute").
To survive the defendants' motions to
dismiss, the town was required to plead sufficiently that the option agreement
met all four elements of the doctrine of prior public use: (1) a subsequent public use;
(2) previous devotion of the property to only "one public use";
(3) an inconsistent subsequent use; and (4) a lack of legislative
authorization. See Smith, 478 Mass. at
60, quoting Robbins, 355 Mass. at 330.
See, e.g., Higginson, 212 Mass. at 591, citing Eldredge v. County
Comm'rs of Norfolk, 185 Mass. 186 (1904).
On appeal, as they did before the Land
Court judge, the MBTA and Eversource raise a number of grounds in support of
their motions to dismiss for failure to state a claim upon which relief can be
granted, e.g., failure to show that the option agreement violated the doctrine
of prior public use. The defendants
argue that dismissal was required because the public uses for which the ROW
initially was acquired by the MBTA were not a single use; Eversource's right
under the option agreement to use the ROW to construct and operate an underground
transmission line is not inconsistent with the MBTA's rights to use the ROW for
mass transportation services; the subsequent inconsistent use must be public,
not private, and here, Eversource is a private entity; and the MBTA's enabling
legislation, G. L. c. 161A, contains specific provisions authorizing
the MBTA to grant easements that do not interfere with rail service, and
further obligates the MBTA to maximize its nontransportation revenue.[9]
As stated, in allowing the motions to
dismiss, the judge relied on his determination that Eversource is a private
entity, the use at issue is a private use, and the doctrine of prior public use
does not apply to a subsequent inconsistent private use. Based on this, the judge did not reach the
defendants' arguments concerning the other three elements of the prior public
use doctrine: prior devotion of the
property to only "one public use"; an inconsistent subsequent use;[10]
and the absence of legislative authorization.
See, e.g., Smith, 478 Mass. at 60, quoting Robbins, 355 Mass. at 330.
On appeal, the town contends that the
judge's decision was erroneous for two reasons.
First, while Eversource is a private corporation, its use of the ROW for
an underground electrical transmission line to service its customers is in
reality a public use. Second, the
judge's narrow construction of the prior public use doctrine "would defeat
the purpose of the [doctrine], which is to protect public land acquired for a
particular public use . . . without the required legislative
awareness and specific authorization."
i.
Public use of the ROW. For the
prior public use doctrine to be applicable under our existing law, we must
accept the town's contention that the option agreement in reality is a
diversion to a public use. The town
maintains that the prior public use doctrine focuses on the "use" of
the land, not on the corporate status of the user. The town points out that Eversource
represented in its petition before the EFSB and the DPU that the project serves
"a compelling public use and purpose,"[11] and that the construction
of the MCRT walking and biking trail through the ROW confers a further
"public benefit." Moreover,
the town argues, Eversource is able to pass along the costs of the project to its
public ratepayers.
Relying on this asserted public use, the
town contends, as it did in the Land Court, that this court's decision in
Braintree, 399 Mass. at 509, "establishes that the [t]own has stated
a valid claim upon which relief can be granted under the prior public use
doctrine." The comparison is
inapt. First, the judge properly
rejected the contention that Eversource is a public entity, or that the
transmission project is a public use.
Second, our holding in Braintree, supra, did not suggest that the doctrine
of prior public use applies to a subsequent private use.
The judge rejected the town's efforts
"to paint the [p]roject as one of public use." He recognized that, in regulatory
proceedings, Eversource argues that laying the transmission lines underneath
the ROW will afford a public benefit with respect to power grid enhancements
and, later, the construction of the MCRT in concert with the DCR. Nonetheless, he concluded, "[t]hat a
utility, owned by its shareholders, is subject to considerable public oversight
does not make it a public entity for purposes of the legal
doctrine. . . . Nor does
the fact that a utility such as Eversource only can proceed to build and
operate power lines with the approval of public regulatory agencies, and has
its rates reviewed in a public manner."
We agree.
Eversource's proposed use of the MBTA ROW to construct and operate
underground transmission lines is not a public use. Eversource, a domestic corporation, privately
owns and operates its electric transmission and distribution systems. See ENGIE Gas & LNG LLC v. Department of
Pub. Utils., 475 Mass. 191, 206 (2016) ("The business of electric
distribution companies is to plan for, build, and operate distribution infrastructure . . .
; deliver electricity; and be compensated for doing so"). Eversource will pay taxes on the transmission
line as an asset, see G. L. c. 59, § 18, Fifth, and is entitled to
earn a profit on its investment through rates approved by the DPU. See G. L. c. 164, § 94. See Higginson, 212 Mass. at 589 (court
focuses on "character of the use"); Abbott v. Inhabitants of Cottage
City, 143 Mass. 521, 525 (1887) ("[public] use is in the public at
large").
Like many other privately owned
corporations doing business in the Commonwealth, such as banks and common
carriers, Eversource is publicly regulated.
In order to site a new electric transmission line, Eversource is
required to demonstrate to the EFSB and the DPU that the project "will or
does serve the public convenience and is consistent with the public
interest" and is "reasonably necessary for the convenience or welfare
of the public." See G. L.
c. 164, § 72; G. L. c. 40A, § 3. A statutory requirement that regulators
consider the public's interest in siting transmission lines, however, does not
convert the construction and operation of a four-mile segment of a privately
owned electric transmission grid into a public use.
ii.
Extension of doctrine to diversion to private use. The town's second argument rests on the
mistaken premise that the sole purpose of the prior public use doctrine is to
prevent the diversion of public land acquired for a particular public use to
any inconsistent use without specific legislative awareness and approval.
Although the prior public use doctrine
undoubtedly protects public land, it developed in our common law as a means to
resolve conflicts over the use of public lands between State-chartered
corporations, municipalities, or other governmental agencies that might claim
authority to use another government entity's land, or to take the land by
eminent domain, in a potentially never-ending cycle of takings.[12] See, e.g.,
Brookline, 357 Mass. at 436-437 (dispute between town and State agency over
taking of property previously acquired as parkland for road construction);
Needham v. County Comm'rs of Norfolk, 324 Mass. 293, 295-297 (1949) (dispute
between town and county commissioners over relocation of public way on strips
of land previously appropriated for school and library); Bauer v. Mitchell, 247
Mass. 522, 525 (1924) (dispute between trustees of agricultural school and
county commissioners over attempt to take portion of school land for hospital
sewage system); Boston & Albany R.R. v. City Council of Cambridge, 166
Mass. 224, 224 (1896) (dispute between city and railroad over city's taking of
land to build park); Old Colony R.R., 153 Mass. at 563-564 (dispute between
railroad and water company over operation of pumping station on land previously
acquired for rail use).
The doctrine of prior public use prevents
the absurd result of public entities, each with the authority to exercise
eminent domain, taking and retaking the same property from each other "ad
infinitum."[13] Commonwealth v.
Massachusetts Turnpike Auth., 346 Mass. 250, 254-255 (1963). See Appleton v. Massachusetts Parking Auth.,
340 Mass. 303, 310 (1960) (specific legislative authority required in order to
prevent governmental agency from engaging in "roving eminent
domain"). See generally Comment,
Judicial Balancing of Uses for Public Property:
The Paramount Public Use Doctrine, 17 B.C. Envtl. Aff. L. Rev. 893, 896
n.35 (1990) (prior public use doctrine was developed to avoid "impropriety
of the [S]tate's nullifying its own prior dedication of property to public use,
without specific consideration of the superseding public use"); Wilson,
The Public Trust Doctrine in Massachusetts Land Law, 11 B.C. Envtl. Aff. L.
Rev. 839, 866-867 (1984) (prior public use doctrine establishes priorities
between multiple governmental entities each possessing power of eminent
domain). See also Georgia Dep't of
Transp. v. Jasper County, 355 S.C. 631, 635 (2003) (prior public use doctrine
is "a rule of law limited to controversies between two [entities] each
possessing a delegated, general power of eminent domain" [citation
omitted]); In re Vt. Gas Sys., Inc., 2017 VT 83, ¶ 19 (purpose of common-law
doctrine is to "protect public uses and to prevent land from being
condemned back and forth between competing condemners, which would result in a
lack of consistent public use of the land").
In this case, involving a transaction
between public and private entities for a subsequent private use of land, we
are not called upon to resolve a conflict over eminent domain authority. The common-law prior public use doctrine has
never been applied to bar a subsequent private use carried out by a private
entity. While the town urges that we
extend the doctrine of prior public use to encompass a diversion to an
inconsistent private use, the town has not demonstrated that the benefits of
expanding the prior public use doctrine to encompass subsequent inconsistent
private uses outweigh the value of adhering to our long-standing common-law
formulation. To adopt a vastly expanded
view of the doctrine in order to add a similar requirement for diversion to an
inconsistent private use would not serve the purposes of the doctrine we have
discussed, and would lead to numerous deleterious consequences. Among other things, countless prior transfers
of interests in land, including many easements for utility wires and pipes, and
water and sewage pipes, would be called into question. Yet, as the town itself recognizes, these
types of transactions between government and private entities are frequent and
critical to maintaining a municipality's infrastructure. See Somerset v. Dighton Water Dist., 347
Mass. 738, 742 (1964). Moreover, it
would render future developments between public and private entities, which,
according to the amici, have been blossoming in the Commonwealth,[14]
prohibitively expensive and time consuming to undertake.
As the Land Court judge explained,
"at both the local and [S]tate level, transfers of government-owned
property to private ownership happen with frequency, and at times in cases
where the land's title was acquired by the public owner for an express public
purpose which may be at odds with the private grantee's ensuing use." Thus, an expansion of the doctrine of prior
public use to include subsequent private uses would "give rise to a
significant number of lawsuits challenging the public disposition of
. . . real estate." The
concerns raised by the amici that "[i]mposing upon the Legislature a new
common law requirement to provide site-specific approval before any such
project could commence construction would add great uncertainty as to schedule
(and, therefore, project costs), making development involving public land or
rights therein far less attractive to the private sector than it is today"
also are persuasive.
4.
Conclusion. Because we decline to
extend our long-standing doctrine of prior public use to include a diversion
from public use to an inconsistent private use, the town cannot prevail on
either of its claims, and we accordingly affirm the Land Court judge's decision
allowing the defendants' motions to dismiss.
So ordered.
footnotes
[1] NSTAR Electric Company, doing business
as Eversource Energy.
[2] Chief Justice Gants participated in
the deliberation on this case prior to his death.
[3] We acknowledge the amicus briefs
submitted by NAIOP Massachusetts, the Real Estate Bar Association for
Massachusetts, Inc., and The Abstract Club; and New England Power Company and
Massachusetts Electric Company, both doing business as National Grid.
[4] The facts are drawn from the
complaint, the exhibits attached to the complaint, and undisputed documents
provided by the parties in connection with the proceedings. See Lipsitt v. Plaud, 466 Mass. 240, 241
(2013); United States ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d 201,
208 (1st Cir. 2016).
[5] An alternative route, which Eversource
believes would be much more expensive than using the ROW, would be placed under
existing streets in Sudbury. Another
alternative to provide the increase in electric transmission in this area that
Eversource believes will be necessary to prevent power outages would involve
modifying or replacing above-ground power lines. This option is not preferred for a number of
reasons.
[6] The water, wetland, and conservation
areas enumerated abut or are proximate to the ROW; none is actually within the
ROW.
[7] The complaint also presents as alleged
harm that, if the project were to include certain types of fill around bridge
abutments that affect floodplains, additional permits and agency review would
be necessary. Any asserted harm that
might result if particular mandated remediation procedures were not followed is
entirely speculative. Moreover, the
planned work as described in the complaint involves the electric wires
remaining within the existing bridge footprint for the three bridges at issue,
obviating any need for fill around newly dug abutments.
[8] These include the claim that the cold
water fishery at Hop Brook will be negatively affected by loss of tree cover
and the resulting rise in water temperature, the potential contamination of
drinking water resource areas during removal of the railroad tracks, and the
potential danger to certain protected species whose habitat encompasses town
conservation land.
[9] Even if a subsequent use is inconsistent,
the prior public use doctrine is satisfied where the Legislature has adopted
the subsequent public use by plain and explicit legislation. See Robbins v. Department of Pub. Works, 355
Mass. 328, 330 (1969). The MBTA argues
that its enabling statute, G. L. c. 161A, satisfies that requirement
here, either by explicitly allowing the MBTA to grant the easement to
Eversource, or by abrogating the common-law doctrine by necessary
implication. See Ferriter v. Daniel
O'Connell's Sons, Inc., 381 Mass. 507, 521 (1980) (discussing repeal of common
law by direct enactment or necessary implication). Under its enabling statute, the MBTA has the
authority to grant easements over "any real property held by the authority"
that do not "unduly" interfere with mass transportation facilities,
G. L. c. 161A, § 3 (m); and to "develop, finance and
operate the mass transportation facilities and equipment in the public
interest," including the disposition of real property without any further
legislative approval, G. L. c. 161A, § 5 (a)-(b). In addition, the MBTA is obligated to
"[e]stablish and implement policies that provide for the maximization of
nontransportation revenues from all sources." G. L. c. 161A, § 11. Because of the result we reach, we need not
address these arguments by the MBTA further.
[10] While the complaint states that
railroad use would be impossible if the underground transmission wires were to
be constructed, the MBTA asserts that it currently operates commuter rail
service on some lines over such underground conduits. The judge did not reach the issue whether
Eversource's proposed use is inconsistent with the prior use, and, for purposes
of the motions to dismiss, we must accept the town's assertion that the use
would be inconsistent. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007), quoting Scheuer v. Rhodes, 416 U.S.
232, 236 (1974).
[11] In its brief, Eversource contests
some of the town's assertions about the content of Eversource's statements to
the EFSB, and points to a published set of documents it says do not contain the
asserted language. For purposes of a
motion to dismiss, however, we assume "that all the allegations in the
complaint are true (even if doubtful in fact)." Iannacchino v. Ford Motor Co., 451 Mass. 623,
636 (2008), quoting Bell Atl. Corp., 550 U.S. at 555.
[12] The prior public use doctrine has
been applied particularly stringently to protect public lands acquired as
"parkland." Smith v.
Westfield, 478 Mass. 49, 61 (2017). "The
policy of the Commonwealth has been to add to the common law inviolability of
parks express prohibition against encroachment." Higginson v. Treasurer & Sch. House
Comm'rs of Boston, 212 Mass. 583, 591-592 (1912). See Robbins, 355 Mass. at 330; Gould v.
Greylock Reservation Comm'n, 350 Mass. 410, 419 (1966). We noted in Mahajan v. Department of Envtl.
Protection, 464 Mass. 604, 616 (2013), that the "spirit" of
art. 97 of the Amendments to the Massachusetts Constitution derived from
the public use doctrine, and that the protections of inconsistent subsequent
use in that doctrine in large part were intended to ensure that public parkland
remain parkland.
[13] The doctrine of prior public use also
promotes "fiscal and social stability" by protecting the long-term
interests of a municipality or other government agency which "may have
expended resources for the improvement of property in reliance on a continued
right to use that property."
Somerset v. Dighton Water Dist., 347 Mass. 738, 742 (1964). See Norfolk So. Ry. v. Intermodal Props.,
LLC, 215 N.J. 142, 162-163 (2013) (common-law rule developed to create
certainty among public entitles, each with authority to exercise power of
eminent domain over same property).
[14] The amici point to several very
recent housing projects involving public and private entities to create
hundreds of units of much-needed affordable housing that also generates revenue
for the government entities involved, affordable child-care facilities to
address severe shortages, and the leasing of land along State highways to
support electrical panels that save the Department of Transportation millions
of dollars annually.