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Commonwealth of Massachusetts the Appeals Court Massachusetts Appeals Court Case: 2020-P-0451 Filed: 6/22/2020 3:49 PM Commonwealth of Massachusetts The Appeals Court Middlesex County No. 2020-P-0451 COBBLE HILL CENTER LLC, Plaintiff-Appellant, – against – SOMERVILLE REDEVELOPMENT AUTHORITY, Defendant-Appellee. _____________________________ ON APPEAL FROM FINAL ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS IN THE SUFFOLK SUPERIOR COURT, 1984CV01046 BRIEF FOR PLAINTIFF-APPELLANT GEORGE A. MCLAUGHLIN, III BBO No. 544822 JOEL E. FALLER BBO No. 659474 THE MCLAUGHLIN BROTHERS PC Attorneys for Plaintiff-Appellant One Washington Mall, 16th Floor Boston, Massachusetts 02108 (617) 523-7165 [email protected] [email protected] 1 Massachusetts Appeals Court Case: 2020-P-0451 Filed: 6/22/2020 3:49 PM TABLE OF CONTENTS Page TABLE OF AUTHORITIES..................................4 I. STATEMENT OF THE ISSUES PRESENTED................6 II. STATEMENT OF THE CASE .........................6 III. STATEMENT OF THE FACTS ........................7 IV. SUMMARY OF ARGUMENT ..........................11 A. Introduction..........................11 B. Standard of Review....................12 C. The Trial Court Erred As A Matter of Law In Holding That The Putative Taking Was Authorized By M.G.L. c. 121B........................12 a. The Legislature Has Not Delegated Eminent Domain Powers to Urban Renewal Agencies Outside of Urban Renewal Projects.................12 b. Interpreting G.L. c. 121B, § 46(f)to Permit an Eminent Domain Taking Outside of an Urban Renewal Project Would Allow an Unconstitutional Diversion of Public Powers and Property for Private Benefit..........................13 c. The Urban Renewal Statutory Scheme Permits Eminent Domain Takings Only in Conjunction with an Urban Renewal Plan.....................14 d. The Putative Taking Did Not Demonstrate Methods and Techniques for the Prevention and Elimination of Slums and Urban Blight........15 2 Massachusetts Appeals Court Case: 2020-P-0451 Filed: 6/22/2020 3:49 PM V. ARGUMENT........................................16 A. Introduction..........................16 B. Standard of Review....................18 C. The Trial Court Erred As A Matter of Law In Holding That The Putative Taking Was Authorized By M.G.L. c. 121B........................18 a. The Legislature Has Not Delegated Eminent Domain Powers to Urban Renewal Agencies Outside of Urban Renewal Projects.................18 b. Interpreting G.L. c. 121B, § 46(f)to Permit an Eminent Domain Taking Outside of an Urban Renewal Project Would Allow an Unconstitutional Diversion of Public Powers and Property for Private Benefit..........................22 c. The Urban Renewal Statutory Scheme Permits Eminent Domain Takings Only in Conjunction with an Urban Renewal Plan.....................26 d. The Putative Taking Did Not Demonstrate Methods and Techniques for the Prevention and Elimination of Slums and Urban Blight........44 VI. CONCLUSION ...................................49 3 Massachusetts Appeals Court Case: 2020-P-0451 Filed: 6/22/2020 3:49 PM TABLE OF AUTHORITIES Page(s) Cases: Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Board of Lawrence, 403 Mass. 531 (1988)............................19 Tremont on the Common Condominium Trust v. Boston Redevelopment Authority, Suffolk Superior Court C.A. No. 01-2705, 2002 Mass Super., LEXIS 564 (Botsford, J.)..passim Devine v. Town of Nantucket, 449 Mass. 499 (2007)............................16 Kelo v. City of New London, Conn., 545 U.S. 469 (2005).............................19 Lajoie v. City of Lowell, 214 Mass. 8 (1913)..............................16 Marchese v. Boston Redevelopment Authority, Suffolk Superior Court C.A. 13-3768, 2018 WL 7199760.............................40, 41 Marchese v. Boston Redevelopment Authority, 483 Mass. 149 (2019)........................passim Mugar v. Massachusetts Bay Transp. Authority, 28 Mass. App. Ct. 443 (1990)....................19 Opinion of the Justices, 356 Mass. 775 (1969)........................passim Tate v. City of Malden, 334 Mass. 507 (1956)............................16 Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594 (2010)............................18 Statutes & Other Authorities: United States Const., Amendment V....................16 House Bill 2863, 1955................................38 M.G.L. c. 30B, § 1(b)(25)............................25 M.G.L. c. 40, § 14...............................17, 38 4 Massachusetts Appeals Court Case: 2020-P-0451 Filed: 6/22/2020 3:49 PM M.G.L. c. 43, § 30...............................17, 38 M.G.L. c. 121, § 26AAA.......................38, 39, 40 M.G.L. c. 121A...................................21, 22 M.G.L. c. 121A, § 11.................................21 M.G.L. c. 121A, § 2..................................21 M.G.L. c. 121A, § 6..................................21 M.G.L. c. 121B...................................passim M.G.L. c. 121B, § 1..........................19, 22, 42 M.G.L. c. 121B, § 11.................................22 M.G.L. c. 121B, § 11(d)..........................passim M.G.L. c. 121B, § 45.............................passim M.G.L. c. 121B, § 46.....................22, 28, 38, 39 M.G.L. c. 121B, § 46(f)..........................passim M.G.L. c. 121B, § 47.............................passim M.G.L. c. 121B, § 48.............................passim Massachusetts Declaration of Rights, Article 10..........................16, 19, 20, 45 Webster’s New Universal Dictionary of the English Language, Unabridged (1977).............44 5 Massachusetts Appeals Court Case: 2020-P-0451 Filed: 6/22/2020 3:49 PM I. STATEMENT OF THE ISSUES PRESENTED 1. Whether the trial court erred in declaring that M.G.L. c. 121B, 46(f) authorized the Somerville Redevelopment Authority (the “SRA”) to take Cobble Hill Center, LLC’s (“Cobble Hill’s”) property by emi- nent domain in the absence of authorization from elected officials through an approved urban renewal project or urban renewal plan because the SRA labeled the action a “demonstration.” II. STATEMENT OF THE CASE This case involves the SRA’s purported eminent domain taking (the “Putative Taking”) of Cobble Hill’s 3.99 acre property located at 90 Washington Street, Somerville, MA (the “Property”). R.A. Vol. VI, pp. 161-162.1 The SRA recorded the Putative Taking on March 8, 2019. Id. On April 3, 2019, Cobble Hill filed a Complaint in Suffolk Superior Court seeking a decla- ration that the taking was invalid and seeking certio- rari review of the Putative Taking.2 R.A. Vol. I, pp. 10-15. 1 Citations to the Record Appendix are set out as “R.A.” followed by the volume number and page number. 2 Cobble Hill is appealing only the Court’s determina- tion of the declaratory judgment count. 6 Massachusetts Appeals Court Case: 2020-P-0451 Filed: 6/22/2020 3:49 PM On June 5, 2019, the SRA filed a Motion for Judg- ment on the Pleadings requesting that the Court deter- mine that the Putative Taking was valid and authorized by M.G.L. c. 121B, § 46(f) and Cobble Hill filed an opposition and cross-motion for judgment on the plead- ings, requesting, inter alia, that the trial court de- termine that the Putative Taking was not authorized as a “demonstration.” R.A. Vol. I, pp.8, 26, 46. On November 15, 2019, the trial court allowed the SRA’s Motion and denied Cobble Hill’s cross-motion and entered judgment in the SRA’s favor. R.A. Vol. I, pp 115-131. Cobble Hill filed a timely Notice of Appeal. R.A. Vol. I, pp. 132-133. III. STATEMENT OF THE FACTS This case involves Cobble Hill’s challenge to the validity of the Putative Taking of Cobble Hill’s Prop- erty. R.A. Vol. I, pp.10-15. The Property is a 3.99 acre parcel located in Somerville, Massachusetts. R.A. Vol. I, p. 116. The Property is directly across from the new MBTA East Somerville Green Line station, which is scheduled to open in 2021. R.A. Vol. I, p. 118. The SRA has recognized that the Property is “highly visible in the neighborhood” and “well situated as a 7 Massachusetts Appeals Court Case: 2020-P-0451 Filed: 6/22/2020 3:49 PM major gateway in Somerville, with terrific vehicular access and visual prominence along a key corridor into the City.” Id. The Property is unquestionably extreme- ly valuable. The SRA awarded Cobble Hill $8,778,000 as pro tanto damages for the Property. R.A. Vol. VI, p. 162. Cobble Hill previously rejected an offer to sell the Property for $14,100,000. R.A. Vol. VI, p. 131. Cobble Hill believes that the Property’s fair market value is significantly higher than either fig- ure. Cobble Hill and its affiliate developed the Prop- erty and an abutting property with a 12,555 square foot retail mall and a 224-unit residential apartment complex. R.A. Vol. I, p. 116. Cobble Hill obtained the necessary permits to allow it to demolish the retail mall and construct a six-story mixed-use development with 159 residential units. Id.; Vol. VI, pp. 113-115. However, because of litigation between Cobble Hill and one of its minority partners, it was unable to com- mence the development. R.A. Vol. I, p. 117. The liti- gation between the partners was concluded before the Putative Taking with a judgment in the Suffolk Superi- or Court entered in July, 2018 in favor of the majori- ty partners. R.A. Vol. I, p. 117. The judgment was up- 8 Massachusetts Appeals Court Case: 2020-P-0451 Filed: 6/22/2020 3:49 PM held on appeal. Id. At some point in time, the City of Somerville de- termined that it needed to replace its aging police station and identified the Property as the best site for a new public safety building. R.A. Vol. II, pp. 89-90; 125. However, the City ultimately decided not to take the Property for its own public purposes and instead relied on the SRA to acquire the Property. The SRA adopted a “Demonstration Plan” whereby it would attempt to take the Property by eminent domain to be used in part by the City for its new public safety building. R.A. Vol. II, pp. 66-102. Because the Property contains excess land not needed for the pub- lic safety building, the Development Plan contemplates a future sale of the remaining land to a private buyer for a future redevelopment.
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