By: Adam Braillard
In April 2024, the Essex Superior Court dismissed a petition by the Town of Nahant to take more than 12 acres of land from Northeastern University by eminent domain. In what may become a seminal case for eminent domain practitioners, the court found that the town’s order to take the land null and void because the Town pursued the taking “in bad faith for an improper reason.” In comprehensive findings of fact, the court determined that the Town’s “dominant” reason for wanting to take the university’s land was to block it from expanding its Marine Science Center (“MSC”), as opposed to the Town’s purported purpose of preserving open space, recreation, and wildlife areas.
Background:
In February 2018, Northeastern announced plans to expand its MSC on its Nahant property at East Point in Nahant by building a new 55,000 square foot structure. In May 2021, Nahant Town Meeting authorized the Board of Selectmen to acquire all, or a portion of, the university’s property. Thereafter, the board authorized the town to take a 12.27-acre portion of the property consisting of two conservation easements and an access easement.
The board’s stated intent for the taking was to preserve open space and conservation uses at East Point. However, the taking operated to prevent the university from developing the MSC project. In its opposition papers, Northeastern argued that the Town was acting in bad faith because (i) its stated public purpose for the taking is a “pretextual effort to stop [Northeastern] from developing” the project, and (ii) it has allowed “private citizens to commandeer its eminent domain authority to benefit themselves and not the Town.”
The Law and the Analysis:
Article X of the Massachusetts Declaration of Rights provides that a taking must be made for a legitimate public purpose and the landowner must receive just compensation. Under Massachusetts General Laws c. 80A, the procedures of a taking action must include and adopt an “order of an intention” of the town to make a taking.
In Pheasant Ridge Assocs. Ltd. P’ship v. Town of Burlington, 399 Mass. 771, 775 (1987), the Supreme Judicial Court held that “a municipal land taking, proper on its face, may be invalid because it was taken in bad faith.” The court recognized two examples of bad faith takings; (i) when the power of eminent domain is used solely to benefit private persons or (ii) for reasons that are not proper, despite valid stated public purposes. The SJC determined that to prove a pretextual bad faith taking, it’s necessary to demonstrate that the dominant reason (rather than the sole reason) for the taking was improper.
Here, Nahant argued for summary judgment on Northeastern’s bad faith taking defense, claiming that the university could not prove an essential element of its claim. In response, Northeastern argued that there were no genuine issues of material fact on the bad faith question, and judgment must be entered in its favor. In support of its pretextual bad faith taking affirmative defense, Northeastern argued that the dominant reason for the town’s taking of a particular swath of its property was to block the development of the MSC project, and not to preserve East Point for open space and conservation purposes, regardless of the stated reasons in the town’s order of intention.
The Court agreed with Northeastern. It found that even though the town had not conducted an eminent domain taking in decades, its handling of the procedure, including accepting gifts to fund the costs, aligned with its usual practices. Furthermore, the town’s purpose for the taking, the preservation of open space and conservation areas, was valid on its face. However, the court noted that in a meeting prior to pursuing the taking, the Board of Selectmen repeatedly voiced concerns about Northeastern’s project, including discussing using eminent domain to stop it, and seeking funding from a local organization to cover legal fees. The facts led to a determination that the town’s true motivation, and therefore, its dominant reason, for the taking was to stop the university’s development of the project rather than conservation purposes.
Also noteworthy: the court invited Northeastern to submit a motion for reimbursement of costs associated with defending the taking.
Conclusion:
The Nahant decision shows that courts will invalidate takings that are pursued for an improper reason, whether or not the municipality seeks to cover its action with a pretextual reason. If upheld on appeal, the case will likely be cited by challengers to such municipal actions for years to come.
For questions about this case, please contact Adam Braillard (abraillard@princelobel.com).