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(woman talking)
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SJC-12738 Town of Sudbury v. Massachusetts Bay
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Transportation Authority.
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Good morning, may it please the court.
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My name is George Pucci, and I represent
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the appellant, Town of Sudbury.
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Hang on one second, one second
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so we can get the clock going.
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Okay, yes, you're still Mr. Pucci, go ahead.
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Thank you, your honor.
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With me today is co-counsel Audrey Eidelman as well.
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This case involves application of the
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prior public use doctrine applicable when a
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land acquired or taken for a particular public use
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is diverted to an inconsistent public use,
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and that requires specific legislative authorization.
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Okay, slow down one minute and just tell me
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as if I had no land experience whatsoever, zero.
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What is the meaning of that easement
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on the land for the MBTA?
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What does that mean that they can do with it?
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The MBTA actually didn't acquire an easement.
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It actually acquired the fee, it had--
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It's an acquired a fee.
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Yes, your honor.
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There were two operative documents,
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and one is an indenture it's called with
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the bankrupt B&M Railroad, and by that deed,
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they acquired the right to quote to operate
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a passenger and freight rail service
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over the rail line rights of way
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that pre-existed with B&M.
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So the MBTA acquired that pre-existing
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right of way over the land?
Correct, your honor.
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With an express fee saying this is
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what you can do with it.
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Basically a fee, yes.
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A fee interest.
So it's not
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it's not an easement.
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No, it's not an easement, your honor.
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And it's not a taking.
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It is a taking.
It is a taking.
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That's prong number two.
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All right.
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So these railroad rights of way,
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the title is always complicated,
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so in conjunction with that acquisition
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with the fee interest, they also did
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an eminent domain taking under their statutory authority
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under chapter 161.a.
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Their taking, and this goes to,
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this is the central part of the case.
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The taking quote was for the purpose of providing
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and extending mass transportation facilities
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for public use, closed quote.
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So they exercise eminent domain power through this land
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running through the town of Sudbury,
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and that's the right of way that's at issue in this case.
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Who exercised that?
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Who exercised the right of way,
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who exercised the power of eminent domain?
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The MBTA did.
The MBTA did.
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In this case, yes, under a section of chapter 161.a,
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they do have public eminent domain power
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to acquire for transportation purposes, and in fact,
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that taking was, as I said, expressly limited
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to that public purpose of mass transportation
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for public use.
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So what the town is arguing in this case
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is under this prior public use doctrine
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where land was taken for a particular public use,
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it can't just be diverted for any other public use
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without specific authorization and not general authorization
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as the MBTA has under chapter 161.a
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over corporate property, but specific legislation
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specifically identifying that parcel,
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identifying the parcel at issue and identifying the use
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to which it will be changed.
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But let me, I understand the prior public use doctrine
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that if it were to apply, it would require
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plain and explicit legislation to override it,
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but the prior public use doctrine is a common law doctrine,
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and the legislature by statute may override
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a common law doctrine, and why should we not conclude
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that the legislature by enacting chapter 161.a,
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section 3.m, at least with regard to easements,
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overrode the common law doctrine and said
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the MBTA can grant any easements over any real property
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held by the Authority as will not in the judgment
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of the Authority unduly interfere with the operation
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of any of its mass transportation facilities?
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Why is that not simply the ability of the legislature
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to say we're gonna override by statute
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a common law doctrine?
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The legislature absolutely has that authority.
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It wasn't exercised here 'cause that's again,
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it's a general authorizing type of legislation
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over their general property.
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Where the prior public use doctrine should trump that
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has to do with this particular parcel was acquired
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for a particular public purpose, used for such.
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In that case, they have to go back to the legislature
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to specifically identify that parcel and get
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specific authorization under special legislation
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identifying it and advising the legislature
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of the proposed use.
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If a piece of property was acquired by the public entity
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under its eminent domain power,
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they're not free to do whatever they want
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under general authorizing legislation
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under the case law for prior public use.
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One instance where that would be relevant
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to your honor's example is with the
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one of the amicus briefs that was filed
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by National Grid talked about the specific statute
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that talks about a utility's right to petition
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for a grant of location to a board of selectmen
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or aldermen of a city to get a grant of location
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for to put a transmission line over public ways.
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In that instance your honor, absolutely,
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that specific legislation giving that entity the right
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to make that petition and giving the board of selectmen
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or the aldermen of a city the right to allow
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that grant of location.
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In that case, the specific statute specifically conferring
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that ability, that power, would in fact trump
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the prior public use doctrine because it would trump
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the common law doctrine.
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There would be no reason for applying it
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because there's a specific statute specifically
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authorizing that particular land conveyance.
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Does this have anything to do with the argument
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having to do with what the impact would be
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if we recognized your position on other transfers of land?
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Yes your honor.
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One of the grounds that the land court has cited
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in denying the town's right to relief in this case
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has sort of opened the flood gates argument,
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and that argument is totally wrong.
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Both the Land Court was wrong,
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and the amicus briefs are wrong on that issue, 100% wrong,
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and the instances they give are just not applicable.
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An example, Article 97 land which as you know
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with recent case law from the SJC,
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that land is protected.
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If either it's specifically acquired or deeded
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with a deed restriction as such,
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or it's devoted to reasons specified in Article 97.
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That land cannot be diverted,
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so a government entity holding that land under Article 97
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cannot simply divert it to an inconsistent use
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without getting a 2/3 vote of the legislature.
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That's one instance.
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When you're talking about public land being conveyed
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to private interests for some type of
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private development or say a electric transmission line.
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Another example, and these are cited in the amicus briefs.
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They actually prove the town's point.
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Land held by a municipality for a particular
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public purpose cannot be sold to a private party
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without first following procedures and town meeting
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approvals required under chapter 40, section 15.a.
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In that instance, town meeting is acting
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as the legislative body for the municipality.
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A municipality acquired land for a particular public use.
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They can't just do whatever they want with it
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without that legislative authority specifically identifying
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the parcel and specifically identifying the reason
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that the use of that parcel is going to be diverted.
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Other examples right from the amicus briefs
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which highlight the strength of the town's case,
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in the NAIOP REBA brief, they cited
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schoolhouse or historic buildings being converted to
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affordable housing or commercial space.
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I'll point out again, town meeting approval is required
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that first you need a town meeting vote transferring
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custody and control of the building from either
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the school or whatever purpose that public building
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was held to affordable housing or for commercial purposes,
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again under chapter 40, section 15.a.
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Town meeting approval is also required to authorize
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either conveyance of the fee title
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for affordable housing purposes or commercial purposes.
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So is your point that the flood gate are not
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gonna open because they can't open?
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Because there are already other--
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Exactly your honor.
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This is a very limited circumstance where
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the prior public use doctrine comes into play
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with all these other specific legislative requirements.
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Just to complete the point on that is the town
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would then have to either convey the fee title
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in that public building from school or other
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municipal use over to affordable housing
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or commercial use.
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They have to get town meeting approval for the conveyance
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of the fee title or ground lease, either one.
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They also have to issue a request for proposal,
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even if they have the greatest thing since sliced bread
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in terms of a potential project,
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they still have to bid that out under
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the procedure provided under chapter 30.b.
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Another example of this that there is no opening
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of the flood gates in this case.
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NAIOP and REBA talk about the City of Worcester's plan
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to build a minor league ball park--
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I'm not sure I get that, so let's take the MBTA,
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let's take the Massachusetts Port Authority,
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these giant independent authorities we have
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that have these sort of general,
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they're supposed to run an airport or a seaport
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or they're supposed to run the transportation system.
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If they change any property use,
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like the MBTA's going broke and they convert
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some dilapidated rail to something that makes money
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that helps pay for rail elsewhere,
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that requires, that's a violation of the
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public use doctrine for you?
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No, in fact they have a mandate under the statute
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to enhance their revenue opportunities,
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so they can use MBTA--
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They're changing the use.
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They're changing it from a rail to something else.
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Well no, they're not changing the use.
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They're not eliminating the use for which
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they acquired the property.
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They may, like in the instance of one of the cases.
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They're not here either, right?
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They're making money off of the transmission
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of the electrical lines, right?
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Yes, but they're not--
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And I assume they're fulfilling environmental
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commitments by creating bike ways.
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Is that wrong, too?
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Well it's illegal, it's what we're arguing.
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I'm not saying it's right or wrong.
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But you said that they can make conversions
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so long as they're consistent with their stated missions.
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If the property was acquired
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for a particular public purpose,
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they need the legislation specifically authorizing it.
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If this use is--
But remember,
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the MBTA is there, it also needs to generate revenue.
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The same thing with the port and other
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and the Commonwealth itself, too.
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I'm just trying to understand,
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if you change a use to a profitable use to help
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pay for the mission of these entities,
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you're now saying that has to.
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You build a car rental facility at the airport.
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That's not airplanes.
No because it--
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Does that require a conversion of use,
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is that a violation of the public use doctrine?
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No your honor.
Why not?
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Because the use would be incidental to the primary purpose
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for which that public property is being used,
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so if you take the instance of, say you go to Self Station
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and the trains come and go and they lease out space
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to restaurants and whatever to go in,
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if that doesn't impede the use of that property
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for the mass transportation,
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and I don't know the purpose--
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So they own a parking lot out in the middle of nowhere
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that no one's using, and then they convert it,
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they sell the property to make some money
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or they lease the property to make money.
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00:13:21.510 --> 00:13:23.520
Is that a violation of the public use doctrine?
268
00:13:23.520 --> 00:13:25.750
No, not necessarily.
269
00:13:25.750 --> 00:13:27.010
How is that different than this?
270
00:13:27.010 --> 00:13:30.360
Because it would matter if they how they acquired
271
00:13:30.360 --> 00:13:31.670
that title to that property.
272
00:13:31.670 --> 00:13:33.800
If they acquired it under a taking
273
00:13:33.800 --> 00:13:36.430
for a particular public use, they may need.
274
00:13:36.430 --> 00:13:37.910
To run transportation,
275
00:13:37.910 --> 00:13:40.480
to fulfill their transportation.
276
00:13:40.480 --> 00:13:43.880
If it was acquired for mass transportation purposes, yes,
277
00:13:43.880 --> 00:13:46.180
I would argue that the prior public use doctrine
278
00:13:46.180 --> 00:13:48.980
would apply, that they would need special legislation
279
00:13:48.980 --> 00:13:52.280
which is not an uncommon thing to get special legislation
280
00:13:52.280 --> 00:13:56.260
from a legislature specifically identifying a property
281
00:13:56.260 --> 00:13:59.260
that was used for a prior particular public use
282
00:13:59.260 --> 00:14:01.750
and diverting it to another public use.
283
00:14:01.750 --> 00:14:05.240
In that instance, it may not apply because it may not
284
00:14:05.240 --> 00:14:07.780
have been acquired for a particular public use.
285
00:14:07.780 --> 00:14:10.760
Here, this property was taken by eminent domain
286
00:14:10.760 --> 00:14:12.760
for mass transportation purposes.
287
00:14:12.760 --> 00:14:15.110
The other thing I would point out your honor is
288
00:14:16.040 --> 00:14:20.320
the use here is not incidental to mass transportation
289
00:14:20.320 --> 00:14:22.110
for public use.
290
00:14:22.110 --> 00:14:27.110
The new use will preclude the use for public transportation,
291
00:14:27.240 --> 00:14:30.340
and we have factual allegations in the complaint about that
292
00:14:31.370 --> 00:14:33.820
following the.
You're putting in
293
00:14:33.820 --> 00:14:36.880
the electrical, the power grid below it is going to
294
00:14:36.880 --> 00:14:38.670
preclude the use of this?
295
00:14:38.670 --> 00:14:40.240
In this instance, it will your honor.
296
00:14:40.240 --> 00:14:45.240
We have extensive allegations which must be taken as true
297
00:14:45.320 --> 00:14:48.720
for the purpose of a motion to dismiss talking about
298
00:14:48.720 --> 00:14:50.320
the topography in this area,
299
00:14:50.320 --> 00:14:55.210
so in an area where the line will be located
300
00:14:55.210 --> 00:14:58.960
directly beneath the pre-existing railroad right of way,
301
00:14:58.960 --> 00:15:00.710
it's precluded because of
302
00:15:00.710 --> 00:15:03.010
insufficient ballast beneath that.
303
00:15:03.010 --> 00:15:06.170
If they do it outside of that way,
304
00:15:06.170 --> 00:15:10.530
but within the right of the entire 82.5 right of way
305
00:15:10.530 --> 00:15:14.360
of the MBTA, topography also because of
306
00:15:14.360 --> 00:15:18.170
slopes and waterways, you can't construct a line there,
307
00:15:18.170 --> 00:15:23.170
so this new use is going to preclude active rail purposes,
308
00:15:24.840 --> 00:15:28.483
so it's inconsistent with the prior public use.
309
00:15:29.820 --> 00:15:32.450
My red light is flashing, but one last instance,
310
00:15:32.450 --> 00:15:35.410
and you framed this issue in terms of
311
00:15:35.410 --> 00:15:38.033
diversion to a private use,
312
00:15:39.190 --> 00:15:41.730
and the key on that is it's not whether it's
313
00:15:41.730 --> 00:15:45.250
a private use or public use which is relevant
314
00:15:45.250 --> 00:15:48.940
under the recent case law that the SJC has had
315
00:15:48.940 --> 00:15:50.250
on these issues talking about the
316
00:15:50.250 --> 00:15:51.280
prior public use doctrine.
317
00:15:51.280 --> 00:15:55.110
It has to do with what the purpose,
318
00:15:55.110 --> 00:15:58.150
whether that purpose of the public land was acquired
319
00:15:58.150 --> 00:15:59.520
for a particular public purpose.
320
00:15:59.520 --> 00:16:03.709
Chief Justice Piper, who is an expert in this,
321
00:16:03.709 --> 00:16:07.120
there are no cases applying it to the
322
00:16:07.120 --> 00:16:08.573
transfer to a private use.
323
00:16:09.760 --> 00:16:11.088
Is there a case that--
324
00:16:11.088 --> 00:16:13.637
One case your honor that I would point out,
325
00:16:13.637 --> 00:16:17.430
and it's cited in your Mahajan versus
326
00:16:17.430 --> 00:16:19.440
Department of Environmental Protection case,
327
00:16:19.440 --> 00:16:21.240
and you'll recall that involves
328
00:16:21.240 --> 00:16:23.780
Boston Redevelopment Authority property,
329
00:16:23.780 --> 00:16:25.500
and the court went on to talk about
330
00:16:25.500 --> 00:16:28.150
the prior public use doctrine, and by the way,
331
00:16:28.150 --> 00:16:31.200
the prior public use doctrine is still alive and well.
332
00:16:31.200 --> 00:16:33.760
It's not limited to--
333
00:16:33.760 --> 00:16:35.610
Can you just answer the question.
334
00:16:35.610 --> 00:16:39.206
So there is a case saying the public use doctrine
335
00:16:39.206 --> 00:16:42.997
applies when you transfer a public use to a private use.
336
00:16:42.997 --> 00:16:46.820
One of the cases cited in Mahajan when it was talking
337
00:16:46.820 --> 00:16:48.880
about the history of the prior public use doctrine
338
00:16:48.880 --> 00:16:52.480
cited a case Muir, M-U-I-R, versus Lemonster.
339
00:16:52.480 --> 00:16:56.880
It was an appeals court case from 1974.
340
00:16:56.880 --> 00:17:01.820
In that case, the court held that the doctrine
341
00:17:01.820 --> 00:17:05.130
was inapplicable to the sale for commercial purposes
342
00:17:05.130 --> 00:17:08.270
of a parcel of land where that parcel had been conveyed
343
00:17:08.270 --> 00:17:11.580
to the city as a gift with no limitation on its use,
344
00:17:11.580 --> 00:17:13.248
but was in fact used as a playground
345
00:17:13.248 --> 00:17:16.060
and for other recreational purposes.
346
00:17:16.060 --> 00:17:18.530
The case held in this case, there had been neither
347
00:17:18.530 --> 00:17:20.860
prior legislative authorization of a taking
348
00:17:20.860 --> 00:17:23.450
for a particular purpose nor a prior public
349
00:17:23.450 --> 00:17:27.010
or private grant restricted to a particular public purpose.
350
00:17:27.010 --> 00:17:28.776
Therefore, the court held in that case
351
00:17:28.776 --> 00:17:30.860
that the prior public use doctrine
352
00:17:30.860 --> 00:17:33.003
didn't preclude the diverted use,
353
00:17:33.003 --> 00:17:34.709
not because it was.
But it was the--
354
00:17:34.709 --> 00:17:37.060
Not because it was.
Can you just, again,
355
00:17:37.060 --> 00:17:41.050
we're gonna lose you, did that case apply to a private use,
356
00:17:41.050 --> 00:17:43.070
a transfer from a public use to a private use?
357
00:17:43.070 --> 00:17:47.260
Yes, a proposed sale for commercial purposes
358
00:17:47.260 --> 00:17:48.740
of that parcel of land.
359
00:17:48.740 --> 00:17:51.420
The court held that the doctrine did not apply
360
00:17:51.420 --> 00:17:56.420
only because it was not acquired for a specific use
361
00:17:56.663 --> 00:17:58.430
that was inconsistent with that,
362
00:17:58.430 --> 00:18:00.670
not based on the fact that it was going to be sold
363
00:18:00.670 --> 00:18:01.930
to a commercial entity.
364
00:18:01.930 --> 00:18:03.780
All right, thank you.
Thank you.
365
00:18:06.150 --> 00:18:07.683
Mr. Heuer, is it hoo-er?
366
00:18:10.240 --> 00:18:12.900
Good morning, I'm Thaddeus Heuer on behalf of the MBTA.
367
00:18:12.900 --> 00:18:14.940
Mr. Chief Justice, may it please the court,
368
00:18:14.940 --> 00:18:16.800
the Land Court's dismissal should be affirmed,
369
00:18:16.800 --> 00:18:19.360
and I'd like to make three points here.
370
00:18:19.360 --> 00:18:21.640
First, this court has asked in its amicus solicitation
371
00:18:21.640 --> 00:18:23.170
whether the doctrine should be expanded
372
00:18:23.170 --> 00:18:26.250
to cover private uses, and the answer to that is no.
373
00:18:26.250 --> 00:18:28.960
Expansion would supplant existing explicit
374
00:18:28.960 --> 00:18:30.230
legislative intent.
375
00:18:30.230 --> 00:18:31.500
It would run contrary to the doctrine's
376
00:18:31.500 --> 00:18:34.240
very limited purposes, and it would create significant
377
00:18:34.240 --> 00:18:36.670
adverse policy consequences for state agencies,
378
00:18:36.670 --> 00:18:40.300
private parties, and even municipalities like Sudbury,
379
00:18:40.300 --> 00:18:44.850
and even given this court's retroactivity precedence,
380
00:18:44.850 --> 00:18:47.130
even if expanded, it wouldn't apply here.
381
00:18:47.130 --> 00:18:49.950
Second, Sudbury lacks standing.
382
00:18:49.950 --> 00:18:52.222
Sudbury concedes it can't demonstrate an injury here
383
00:18:52.222 --> 00:18:55.430
and instead contends that Braintree case in this court
384
00:18:55.430 --> 00:18:58.936
created injury from a municipal standing by implication.
385
00:18:58.936 --> 00:19:00.935
So you think we can handle that matter
386
00:19:00.935 --> 00:19:04.237
even though there's no standing, or allegedly no standing,
387
00:19:04.237 --> 00:19:06.093
under our superintendents power?
388
00:19:07.510 --> 00:19:10.510
As you know, this case was briefed in appeals court,
389
00:19:10.510 --> 00:19:12.880
so the arguments that we made there about stare decisis.
390
00:19:12.880 --> 00:19:15.810
Obviously, this court has power under Wellesley College
391
00:19:15.810 --> 00:19:18.930
and other cases to use its superintendents power
392
00:19:18.930 --> 00:19:21.470
to reach issues where the parties don't have standing.
393
00:19:21.470 --> 00:19:24.100
That being said, Wellesley College is traditionally used
394
00:19:24.100 --> 00:19:26.893
in cases where standing has not been raised below
395
00:19:26.893 --> 00:19:28.570
and the matter's been fully briefed.
396
00:19:28.570 --> 00:19:31.820
It's not intended to give a pass to the lower courts
397
00:19:31.820 --> 00:19:33.380
to not have to address the issue of standing
398
00:19:33.380 --> 00:19:34.867
where it is plainly and manifestly raised
399
00:19:34.867 --> 00:19:37.680
at the time by the parties.
400
00:19:37.680 --> 00:19:40.030
Third, dismissal was required here unless
401
00:19:40.030 --> 00:19:42.430
all four prongs of the doctrine were implicated,
402
00:19:42.430 --> 00:19:45.060
and those are a subsequent public use.
403
00:19:45.060 --> 00:19:47.840
It was devoted initially to only one public use,
404
00:19:47.840 --> 00:19:49.380
that's the Muir case.
405
00:19:49.380 --> 00:19:52.200
A subsequent use that was inconsistent,
406
00:19:52.200 --> 00:19:54.743
and plain and explicit legislation.
407
00:19:55.750 --> 00:19:59.110
A century of uniform precedent as the Land Court determined
408
00:19:59.110 --> 00:20:01.800
holds that the doctrine applies only where the public use
409
00:20:01.800 --> 00:20:04.550
is on both the prior and the subsequent side,
410
00:20:04.550 --> 00:20:07.710
and here, Eversource is a private party
411
00:20:07.710 --> 00:20:09.220
with a private use.
412
00:20:09.220 --> 00:20:11.030
Sudbury lost on that prong below,
413
00:20:11.030 --> 00:20:13.650
but it fares no better on any of the other three.
414
00:20:13.650 --> 00:20:15.240
It needs to demonstrate all four
415
00:20:15.240 --> 00:20:17.090
in order to survive the motion to dismiss.
416
00:20:17.090 --> 00:20:20.860
So you're not arguing 161.a, section 3.m gives you
417
00:20:20.860 --> 00:20:22.900
the authority as a matter of statute
418
00:20:22.900 --> 00:20:24.260
and overrides the common law.
419
00:20:24.260 --> 00:20:26.420
I am absolutely arguing that section 3.m
420
00:20:26.420 --> 00:20:27.789
overrides the common law.
421
00:20:27.789 --> 00:20:29.704
The plain and explicit legislation
422
00:20:29.704 --> 00:20:32.920
of the MBTA is manifest.
423
00:20:32.920 --> 00:20:37.060
The MBTA takes its statutory requirements very seriously,
424
00:20:37.060 --> 00:20:39.060
and its enabling statute, which is 161.a,
425
00:20:39.060 --> 00:20:40.670
could not be more clear.
426
00:20:40.670 --> 00:20:43.120
It has a legislative right to alienate land.
427
00:20:43.120 --> 00:20:45.990
That's 3.q and 5.b.
428
00:20:45.990 --> 00:20:48.460
It has the legislative right to grant easements
429
00:20:48.460 --> 00:20:50.093
as you know, Chief Justice.
430
00:20:50.930 --> 00:20:54.320
It has a legislative duty, not just a right, a duty,
431
00:20:54.320 --> 00:20:56.230
to quote provide for the maximization
432
00:20:56.230 --> 00:20:58.290
of non-transportation revenue from all sources.
433
00:20:58.290 --> 00:21:01.263
That's section 11, and this court in the Sommerville case
434
00:21:01.263 --> 00:21:03.210
held exactly on that point,
435
00:21:03.210 --> 00:21:05.900
that the duty to maximize non-transportation revenue
436
00:21:05.900 --> 00:21:08.770
is quote statutorily integrated with the MBTA's
437
00:21:08.770 --> 00:21:11.563
quote essential function of mass transit,
438
00:21:11.563 --> 00:21:14.360
and here in the doctrine context,
439
00:21:14.360 --> 00:21:17.050
Higginson, the case from the early 1900s,
440
00:21:17.050 --> 00:21:19.450
held that the plain, explicit test requires quote
441
00:21:19.450 --> 00:21:21.470
ascertaining the will of the legislature
442
00:21:21.470 --> 00:21:23.820
as manifested in its statutes.
443
00:21:23.820 --> 00:21:26.390
161.a could not be clearer.
444
00:21:26.390 --> 00:21:28.990
Repeatedly, there is explicit legislative intent
445
00:21:28.990 --> 00:21:32.780
that the MBTA be entitled to manage its real property
446
00:21:32.780 --> 00:21:36.910
without further intervention from the legislature.
447
00:21:36.910 --> 00:21:39.450
So if the statute overrides the common law,
448
00:21:39.450 --> 00:21:41.330
why do we need to address the issue of
449
00:21:41.330 --> 00:21:45.440
whether the public use doctrine
450
00:21:46.730 --> 00:21:50.230
should be or should not be extended to private purchases?
451
00:21:50.230 --> 00:21:51.820
I do not know, your honor.
452
00:21:51.820 --> 00:21:53.350
That was part of the amicus solicitation.
453
00:21:53.350 --> 00:21:54.710
It was in two parts.
454
00:21:54.710 --> 00:21:56.830
The first part was asking about this case.
455
00:21:56.830 --> 00:21:59.177
The second part, obviously not briefed by other party,
456
00:21:59.177 --> 00:22:01.210
was about whether the doctrine should be expanded.
457
00:22:01.210 --> 00:22:02.370
Seeing as the court asked about it,
458
00:22:02.370 --> 00:22:04.020
we are of course willing to provide
459
00:22:04.020 --> 00:22:06.400
significant commentary on that policy issue.
460
00:22:06.400 --> 00:22:07.340
And I guess the question,
461
00:22:07.340 --> 00:22:12.340
I gather we don't have any or nearly no cases
462
00:22:12.400 --> 00:22:16.166
which apply the public use doctrine in the context
463
00:22:16.166 --> 00:22:20.840
of a sale to a private individual,
464
00:22:20.840 --> 00:22:22.820
but I don't know that we have any cases in which
465
00:22:22.820 --> 00:22:24.890
that was done and which it was said
466
00:22:24.890 --> 00:22:27.120
that the public use doctrine does not apply either.
467
00:22:27.120 --> 00:22:28.960
We just have silence.
468
00:22:28.960 --> 00:22:30.120
So what do we do with that?
469
00:22:30.120 --> 00:22:32.370
It's sort of weird over the course of 200 years
470
00:22:32.370 --> 00:22:36.250
of the public use doctrine that we've yet to have a case
471
00:22:36.250 --> 00:22:38.820
in which anybody has sought to apply it
472
00:22:38.820 --> 00:22:40.370
in the context of a private sale.
473
00:22:40.370 --> 00:22:41.203
Why is that?
474
00:22:41.203 --> 00:22:43.170
It's not unusual because the doctrine
475
00:22:43.170 --> 00:22:44.700
literally doesn't say that.
476
00:22:44.700 --> 00:22:46.090
It says the prior public use doctrine applies
477
00:22:46.090 --> 00:22:48.970
to a prior public use that is diverted
478
00:22:48.970 --> 00:22:52.310
to an inconsistent subsequent public use.
479
00:22:52.310 --> 00:22:53.437
The word public is on both sides of the equation.
480
00:22:53.437 --> 00:22:56.234
I understand that, but I also know the Article 97
481
00:22:56.234 --> 00:22:59.364
which is viewed as an extension of the
482
00:22:59.364 --> 00:23:02.980
prior public use doctrine is not limited
483
00:23:02.980 --> 00:23:04.220
to other public uses.
484
00:23:04.220 --> 00:23:09.170
It would apply to the disposal of park land to anyone,
485
00:23:09.170 --> 00:23:11.999
including a private person.
Absolutely your honor.
486
00:23:11.999 --> 00:23:14.933
So I mean at least with regard to the Article 97,
487
00:23:16.242 --> 00:23:18.460
it is not limited to other public uses.
488
00:23:18.460 --> 00:23:20.037
It would apply to any use.
489
00:23:22.540 --> 00:23:23.373
Correct your honor.
490
00:23:23.373 --> 00:23:25.700
Article 97, and I'm happy to discuss
491
00:23:25.700 --> 00:23:28.310
Westfield in context here.
492
00:23:28.310 --> 00:23:30.730
Article 97 is not an extension
493
00:23:30.730 --> 00:23:32.490
of the prior public use doctrine.
494
00:23:32.490 --> 00:23:34.287
It supplements the prior public use doctrine,
495
00:23:34.287 --> 00:23:36.990
and I think it's notable to note that Article 97
496
00:23:36.990 --> 00:23:38.750
is an article to the state constitution.
497
00:23:38.750 --> 00:23:41.810
In other words, over 200 years had to pass
498
00:23:41.810 --> 00:23:44.420
before we determined that conservation land
499
00:23:44.420 --> 00:23:46.850
to be converted to a private use,
500
00:23:46.850 --> 00:23:48.880
it required a constitutional amendment,
501
00:23:48.880 --> 00:23:50.990
not the use of the prior public use doctrine
502
00:23:50.990 --> 00:23:52.580
because clearly, the prior public use doctrine
503
00:23:52.580 --> 00:23:54.330
was never contemplated to have applied
504
00:23:54.330 --> 00:23:55.570
in those situations.
505
00:23:55.570 --> 00:23:58.930
In order for it to go from conservation land to private use,
506
00:23:58.930 --> 00:24:01.410
you now need a 2/3 vote of the legislature,
507
00:24:01.410 --> 00:24:03.220
and my understanding on Smith v. Westfield,
508
00:24:03.220 --> 00:24:05.170
although I would defer to your Chief,
509
00:24:05.170 --> 00:24:07.760
is that the notion is that it was not intended
510
00:24:07.760 --> 00:24:09.477
to limit the prior public use doctrine,
511
00:24:09.477 --> 00:24:11.427
and we're certainly not saying it does.
512
00:24:12.675 --> 00:24:14.763
If you've adequately answered that.
513
00:24:16.110 --> 00:24:20.170
161.a, section three talks about grants such easements
514
00:24:20.170 --> 00:24:23.140
over any real property held by the authority,
515
00:24:23.140 --> 00:24:26.680
so when the MBTA holds a right of way,
516
00:24:26.680 --> 00:24:29.940
is it in fact holding real property?
517
00:24:29.940 --> 00:24:30.773
Absolutely.
518
00:24:31.930 --> 00:24:33.480
It will depend on how it is taken.
519
00:24:33.480 --> 00:24:35.410
Certainly it can hold the rights of way in many ways,
520
00:24:35.410 --> 00:24:36.979
but usually holds them in fee.
521
00:24:36.979 --> 00:24:39.300
Well okay, do you have a citation for that
522
00:24:39.300 --> 00:24:41.710
or can you point me in the direction
523
00:24:41.710 --> 00:24:43.450
of something that would say that?
524
00:24:43.450 --> 00:24:45.917
That the MBTA holds its property in fee?
525
00:24:45.917 --> 00:24:48.610
No, well that the right, what I just asked you
526
00:24:48.610 --> 00:24:50.780
that when you said certainly, of course it would,
527
00:24:50.780 --> 00:24:53.130
is that just a logic application,
528
00:24:53.130 --> 00:24:56.770
or is that an interpretation?
529
00:24:56.770 --> 00:24:58.634
It's the literal fact on the ground
530
00:24:58.634 --> 00:24:59.494
The literal fact
of how the MBTA
531
00:24:59.494 --> 00:25:00.390
on the ground.
holds property.
532
00:25:00.390 --> 00:25:02.110
I mean, you'd have to go through the registry of deeds
533
00:25:02.110 --> 00:25:03.806
and see how it is acquired, each piece of property,
534
00:25:03.806 --> 00:25:05.810
just as you would for any property owner,
535
00:25:05.810 --> 00:25:08.510
but the MBTA traditionally acquires property
536
00:25:08.510 --> 00:25:10.970
either through purchase or it acquires it
537
00:25:10.970 --> 00:25:11.803
through eminent domain.
538
00:25:11.803 --> 00:25:12.827
It has the absolute legislative--
539
00:25:12.827 --> 00:25:15.240
Okay, but it's holding only a right of way.
540
00:25:15.240 --> 00:25:18.177
It's not holding the actual title to the property, correct?
541
00:25:18.177 --> 00:25:19.820
No, it holds the title to the property.
542
00:25:19.820 --> 00:25:20.653
It does?
Yes.
543
00:25:20.653 --> 00:25:21.670
So it's not a right of way issue.
544
00:25:23.020 --> 00:25:25.010
It is.
It is?
545
00:25:25.010 --> 00:25:26.310
It is a right of way issue.
546
00:25:26.310 --> 00:25:30.300
A right of way is merely how that piece of property is used
547
00:25:30.300 --> 00:25:32.330
if it's dedicated as a right of way, particularly for
548
00:25:32.330 --> 00:25:33.163
a rail purpose.
Okay.
549
00:25:33.163 --> 00:25:34.850
It becomes a rail right of way and it has
550
00:25:34.850 --> 00:25:37.779
a specific meaning in the statutes and in the case law.
551
00:25:37.779 --> 00:25:39.535
All right.
552
00:25:39.535 --> 00:25:42.210
Do you want to address Muir versus Lemonster
553
00:25:42.210 --> 00:25:45.830
'cause he is right that it, they could have just said hey,
554
00:25:45.830 --> 00:25:47.690
this is a conversion of a public use
555
00:25:47.690 --> 00:25:50.580
to a private use, but they instead,
556
00:25:50.580 --> 00:25:52.670
the appeals court, and this was Chief Justice Hale
557
00:25:52.670 --> 00:25:54.490
was a municipal lawyer,
558
00:25:54.490 --> 00:25:58.200
spends a lot of time avoiding the issue, right?
559
00:25:58.200 --> 00:25:59.460
He does, but at the end of the day,
560
00:25:59.460 --> 00:26:00.548
the case stands to the proposition
561
00:26:00.548 --> 00:26:02.970
that the doctrine doesn't apply.
562
00:26:02.970 --> 00:26:04.540
Certainly, I'm not going to second--
563
00:26:04.540 --> 00:26:07.060
But he kind of gets there very indirectly
564
00:26:07.060 --> 00:26:08.860
as opposed to sort of answering the question
565
00:26:08.860 --> 00:26:12.630
we have to answer which is whether the doctrine applies
566
00:26:12.630 --> 00:26:15.330
to the conversion to a private use, right?
567
00:26:15.330 --> 00:26:16.470
That's correct your honor,
568
00:26:16.470 --> 00:26:20.490
but I would say that while the case may have
569
00:26:20.490 --> 00:26:22.210
interesting dicta and he could have reached
570
00:26:22.210 --> 00:26:24.000
that issue otherwise,
571
00:26:24.000 --> 00:26:25.350
the ultimate conclusion of the case
572
00:26:25.350 --> 00:26:26.680
is quite frankly what matters,
573
00:26:26.680 --> 00:26:28.430
and what it concludes is that there was
574
00:26:28.430 --> 00:26:29.323
more than one public use,
575
00:26:29.323 --> 00:26:31.960
and therefore there is no doctrine applicability,
576
00:26:31.960 --> 00:26:34.860
and I think the larger point is again going back to my
577
00:26:34.860 --> 00:26:38.410
notion earlier that in order to survive a motion to dismiss,
578
00:26:38.410 --> 00:26:39.470
the town needed to show that
579
00:26:39.470 --> 00:26:42.760
all four prongs of the doctrine were met.
580
00:26:42.760 --> 00:26:45.070
Any one of those prongs defeats the town
581
00:26:45.070 --> 00:26:46.830
which is what happened below.
582
00:26:46.830 --> 00:26:48.480
Judge Piper correctly noted that
583
00:26:48.480 --> 00:26:50.023
there's no subsequent public use.
584
00:26:50.023 --> 00:26:51.770
There's a private use.
585
00:26:51.770 --> 00:26:53.590
That ended the inquiry.
586
00:26:53.590 --> 00:26:55.550
The town repeatedly states in its brief
587
00:26:55.550 --> 00:27:00.100
that Judge Piper found for them on the remaining three.
588
00:27:00.100 --> 00:27:01.920
He literally did not reach.
589
00:27:01.920 --> 00:27:05.700
Is that consistent sort of with the argument
590
00:27:05.700 --> 00:27:08.670
that you said before that you say it is
591
00:27:08.670 --> 00:27:13.670
encompassed by the statute, so it is a public use
592
00:27:13.790 --> 00:27:17.920
meaning when they take that, when they give the money,
593
00:27:17.920 --> 00:27:21.480
give this to the electrical company and make money off of it
594
00:27:21.480 --> 00:27:23.390
and create a bike path,
595
00:27:23.390 --> 00:27:25.740
they're fulfilling part of their public mission
596
00:27:26.610 --> 00:27:31.490
which is to generate revenue for the MBTA and to
597
00:27:32.650 --> 00:27:34.730
satisfy environmental commitments to create
598
00:27:34.730 --> 00:27:36.570
these kinds of bike paths and other things,
599
00:27:36.570 --> 00:27:40.410
so isn't it kind of a public use?
600
00:27:40.410 --> 00:27:43.290
So if you're asking about the bike path element of it.
601
00:27:43.290 --> 00:27:46.990
I'm asking for both 'cause I read the statute
602
00:27:46.990 --> 00:27:48.480
the way the Chief just read it to you,
603
00:27:48.480 --> 00:27:50.840
which is you're right that they can do these things,
604
00:27:50.840 --> 00:27:55.840
but at the same time, that means it is a public use, right?
605
00:27:55.990 --> 00:27:59.270
There is no dispute that the MBTA is a paradigmatic
606
00:27:59.270 --> 00:28:02.470
public agency body politic corporate of the Commonwealth.
607
00:28:02.470 --> 00:28:05.280
Everything it does just like MASSDOT or MASSPORT
608
00:28:05.280 --> 00:28:07.750
or anything else would be deemed a public use,
609
00:28:07.750 --> 00:28:09.550
but we need both sides of the equation
610
00:28:09.550 --> 00:28:11.580
before the doctrine comes into play.
611
00:28:11.580 --> 00:28:15.190
The MBTA on its side, certainly a prior public use,
612
00:28:15.190 --> 00:28:17.620
but the issue is whether the subsequent use
613
00:28:17.620 --> 00:28:19.700
is also a public use, and here,
614
00:28:19.700 --> 00:28:20.960
it clearly is not.
We determined that.
615
00:28:20.960 --> 00:28:22.810
It's not a finding of fact by the judge.
616
00:28:22.810 --> 00:28:25.990
You can't be doing that in a motion to dismiss, right?
617
00:28:25.990 --> 00:28:28.430
The judge can't find facts in a motion to dismiss.
618
00:28:28.430 --> 00:28:29.263
Certainly he can.
619
00:28:29.263 --> 00:28:31.434
He determined as a matter of law,
620
00:28:31.434 --> 00:28:33.970
and we can also look to Sheraby-Brandice--
621
00:28:33.970 --> 00:28:37.030
As a matter of law, it's not a public use.
622
00:28:37.030 --> 00:28:38.520
As a matter of law, he found that Eversource
623
00:28:38.520 --> 00:28:40.330
was clearly a private company.
624
00:28:40.330 --> 00:28:43.560
Okay, a private company, but it's in a private use.
625
00:28:43.560 --> 00:28:44.393
Absolutely.
626
00:28:44.393 --> 00:28:46.150
Private company can have public uses though, can't it?
627
00:28:46.150 --> 00:28:47.090
Not to my knowledge.
628
00:28:47.090 --> 00:28:48.820
Uh huh, okay, so that's the basic thing.
629
00:28:48.820 --> 00:28:51.080
You're saying a private company is dispositive.
630
00:28:51.080 --> 00:28:53.200
Private company means private use.
631
00:28:53.200 --> 00:28:54.880
Absolutely, and I think if you look at this court's
632
00:28:54.880 --> 00:28:57.860
decision in Higginson, that's the 1912 case,
633
00:28:57.860 --> 00:29:00.750
the court actually discusses what a public use
634
00:29:00.750 --> 00:29:02.000
and a private use would be,
635
00:29:02.000 --> 00:29:06.320
and the court says in Higginson that this is a quote
636
00:29:06.320 --> 00:29:08.189
property of which a city or town,
637
00:29:08.189 --> 00:29:09.720
and I think it would also apply to a state,
638
00:29:09.720 --> 00:29:12.980
has acquired absolute ownership as an agency of the state
639
00:29:12.980 --> 00:29:15.770
and which it holds strictly for public uses,
640
00:29:15.770 --> 00:29:18.030
and then it goes on to note that water works,
641
00:29:18.030 --> 00:29:22.400
sewage, gas, electric light markets historically
642
00:29:22.400 --> 00:29:25.240
have been treated as proper subjects for private enterprise
643
00:29:25.240 --> 00:29:27.120
even when assumed by a city or town
644
00:29:27.120 --> 00:29:30.350
and have been regarded as private.
645
00:29:30.350 --> 00:29:32.870
That's the case that we're all relying on,
646
00:29:32.870 --> 00:29:35.300
and that's what it says about what a public use is
647
00:29:35.300 --> 00:29:36.650
and what a private use is.
648
00:29:36.650 --> 00:29:38.050
So help me to understand.
649
00:29:38.050 --> 00:29:41.210
Put aside the 161.a.
650
00:29:41.210 --> 00:29:44.140
Let's assume there was no statutory authority.
651
00:29:44.140 --> 00:29:47.020
I'm happy to win on that basis. (laughs)
652
00:29:47.020 --> 00:29:49.010
And let's assume, let's take a different case.
653
00:29:49.010 --> 00:29:52.570
Let's assume that the MBTA by eminent domain
654
00:29:52.570 --> 00:29:56.178
seized land in New Bedford in order to build
655
00:29:56.178 --> 00:29:59.400
an extension of a train line to New Bedford
656
00:30:00.865 --> 00:30:02.957
and spent a great deal of money for it,
657
00:30:02.957 --> 00:30:04.310
and then ultimately said no,
658
00:30:04.310 --> 00:30:06.500
we're not gonna build the train line.
659
00:30:06.500 --> 00:30:10.163
We're gonna sell it to a private developer for housing.
660
00:30:12.730 --> 00:30:17.233
Can they do that without any legislative approval?
661
00:30:18.130 --> 00:30:18.963
They may your honor.
662
00:30:18.963 --> 00:30:20.700
First I would just clarify that they would not be
663
00:30:20.700 --> 00:30:22.820
seizing it, they would be paying just compensation
664
00:30:22.820 --> 00:30:23.917
pursuant to chapter 79.
665
00:30:23.917 --> 00:30:25.380
Okay, but they're paying it through eminent domain,
666
00:30:25.380 --> 00:30:26.213
I understand that.
667
00:30:26.213 --> 00:30:27.350
But they have acquired the land.
668
00:30:27.350 --> 00:30:29.230
But the strange part is that if they said
669
00:30:29.230 --> 00:30:31.764
we're gonna give it to the City of New Bedford
670
00:30:31.764 --> 00:30:34.760
to use for some public purpose,
671
00:30:34.760 --> 00:30:37.060
they would need legislative approval, correct?
672
00:30:38.140 --> 00:30:41.640
Setting aside chapter 161.a and its express authority
673
00:30:41.640 --> 00:30:44.260
that allows them to utilize their legislative authority
674
00:30:44.260 --> 00:30:47.120
to deal with land transaction without restriction,
675
00:30:47.120 --> 00:30:48.560
certainly that might be a situation
676
00:30:48.560 --> 00:30:50.070
because the city of New Bedford
677
00:30:50.070 --> 00:30:51.640
holds eminent domain authority.
678
00:30:51.640 --> 00:30:53.910
I think one suggestion I would say is that given
679
00:30:53.910 --> 00:30:58.300
the hierarchy of state, local, and municipal
680
00:30:58.300 --> 00:31:00.100
that as we note in our brief,
681
00:31:00.100 --> 00:31:01.980
the purpose of the prior public use doctrine,
682
00:31:01.980 --> 00:31:05.050
one of its two main purposes, is to ensure that
683
00:31:05.050 --> 00:31:07.170
two entities with competing eminent domain power
684
00:31:07.170 --> 00:31:09.740
aren't using it against each other ad infinitum,
685
00:31:09.740 --> 00:31:11.150
and it sets a default rule.
686
00:31:11.150 --> 00:31:14.240
In that situation with the state and the municipality
687
00:31:14.240 --> 00:31:16.450
at different levels, one suggestion I would have
688
00:31:16.450 --> 00:31:18.140
is that that might not necessarily be the case
689
00:31:18.140 --> 00:31:20.710
because it's not clear that City of New Bedford
690
00:31:20.710 --> 00:31:22.510
actually has the delegated legislative authority
691
00:31:22.510 --> 00:31:24.040
to take from a state agency.
692
00:31:24.040 --> 00:31:26.970
If it did, then yes, that might be a circumstance
693
00:31:26.970 --> 00:31:30.370
in which the prior public use doctrine could apply.
694
00:31:30.370 --> 00:31:31.703
If it sells to the private developer--
695
00:31:31.703 --> 00:31:33.860
How about in my hypo if they want to sell it
696
00:31:33.860 --> 00:31:36.883
to a private developer to build housing?
697
00:31:37.894 --> 00:31:40.030
Not covered by the prior public use doctrine.
698
00:31:40.030 --> 00:31:42.698
Subsequent use is not a private, is not a public use.
699
00:31:42.698 --> 00:31:44.750
So there's no problem for them to do that
700
00:31:44.750 --> 00:31:46.984
even though it had been seized for purposes
701
00:31:46.984 --> 00:31:51.380
of eminent domain for what was to be a transit use.
702
00:31:51.380 --> 00:31:53.180
That's correct.
And that's my problem
703
00:31:53.180 --> 00:31:55.410
is understanding that leap there.
704
00:31:55.410 --> 00:31:58.550
I'm having a hard time with what Justice Gants,
705
00:31:58.550 --> 00:32:01.600
not with his question, but what the answer is to that.
706
00:32:01.600 --> 00:32:05.471
It doesn't seem right to me that you can do this.
707
00:32:05.471 --> 00:32:07.760
I think the question of what is right or not
708
00:32:07.760 --> 00:32:10.527
goes back to the notion of common law versus the statute.
709
00:32:10.527 --> 00:32:13.880
The common law fills gaps, it doesn't supplant statutes,
710
00:32:13.880 --> 00:32:15.710
and it's an ancient doctrine, I get it,
711
00:32:15.710 --> 00:32:17.420
but the legislature has kept up with it,
712
00:32:17.420 --> 00:32:19.680
and over the years in repeated enabling acts
713
00:32:19.680 --> 00:32:22.040
for all of the major land-holding agencies,
714
00:32:22.040 --> 00:32:26.363
that's MASSDOT, MBTA, DCR, DCAM, MASSPORT,
715
00:32:28.540 --> 00:32:31.770
they all have express authority to have essentially
716
00:32:31.770 --> 00:32:34.170
unilateral control delegated by the legislature
717
00:32:34.170 --> 00:32:35.930
over their real property transactions.
718
00:32:35.930 --> 00:32:38.090
They all have the authority of eminent domain,
719
00:32:38.090 --> 00:32:39.260
and they can use eminent domain.
720
00:32:39.260 --> 00:32:41.070
I think the case law is very clear on this
721
00:32:41.070 --> 00:32:43.290
that a property taken for eminent domain
722
00:32:43.290 --> 00:32:45.990
need not necessarily be used for that purpose.
723
00:32:45.990 --> 00:32:49.810
It goes into the general property bank of that entity,
724
00:32:49.810 --> 00:32:51.560
and it can be used for any purpose within
725
00:32:51.560 --> 00:32:54.620
the legislative authorization of that agency.
726
00:32:54.620 --> 00:32:55.870
They're all limited by statute.
727
00:32:55.870 --> 00:32:57.633
The MBTA can't go build a school,
728
00:32:58.540 --> 00:33:01.550
but it can certainly use it for any mass transit use,
729
00:33:01.550 --> 00:33:04.570
and it also has the authority, and indeed the obligation,
730
00:33:04.570 --> 00:33:06.430
to maximize its non-transportation revenue,
731
00:33:06.430 --> 00:33:08.950
so the legislature recognized that it could give
732
00:33:08.950 --> 00:33:10.507
the authority to take and acquire,
733
00:33:10.507 --> 00:33:13.595
and it also gave the authority expressly to alienate,
734
00:33:13.595 --> 00:33:16.036
either because it wishes to or because it wishes to
735
00:33:16.036 --> 00:33:18.380
enhance its non-transportation revenue.
736
00:33:18.380 --> 00:33:20.680
That's actually a pretty broad power
737
00:33:20.680 --> 00:33:22.980
that it gave to the MBTA there.
738
00:33:22.980 --> 00:33:24.840
Absolutely, same power for there MBTA,
739
00:33:24.840 --> 00:33:27.880
same power for MASSDOT, same power for MASSPORT.
740
00:33:27.880 --> 00:33:31.500
These are large public agencies, very sophisticated.
741
00:33:31.500 --> 00:33:33.030
They all have their own secretariat.
742
00:33:33.030 --> 00:33:35.070
They're responsible to the legislature.
743
00:33:35.070 --> 00:33:37.070
There's a recognition that literally in order
744
00:33:37.070 --> 00:33:39.390
to run a railroad, you need to give some discretion
745
00:33:39.390 --> 00:33:41.380
to the people whose job it is to run a railroad,
746
00:33:41.380 --> 00:33:43.960
and that includes determining in their best interests
747
00:33:43.960 --> 00:33:45.570
what is the appropriate way to manage
748
00:33:45.570 --> 00:33:46.970
their real property assets.
749
00:33:46.970 --> 00:33:48.080
And there's no supervision?
750
00:33:48.080 --> 00:33:51.133
There's no way of being able to say
751
00:33:52.099 --> 00:33:55.040
that they did it wrong or abused their discretion?
752
00:33:55.040 --> 00:33:57.160
I suppose there is your honor, but again,
753
00:33:57.160 --> 00:33:59.132
that kind of goes to Chief Justice Gants' point
754
00:33:59.132 --> 00:34:02.500
about section 3.m of 161.a.
755
00:34:02.500 --> 00:34:05.607
Legislature has expressly given the MBTA
756
00:34:05.607 --> 00:34:10.376
the inherent and express authority to quote
757
00:34:10.376 --> 00:34:13.126
(paper rustling)
758
00:34:14.290 --> 00:34:15.990
grant easements over its real property,
759
00:34:15.990 --> 00:34:20.270
quote as will not in the judgment of the authority
760
00:34:20.270 --> 00:34:22.620
unduly interfere with the operation
761
00:34:22.620 --> 00:34:24.000
of its mass transit facilities.
762
00:34:24.000 --> 00:34:26.440
The legislature has expressly said we are giving this
763
00:34:26.440 --> 00:34:28.240
to your judgment, MBTA.
764
00:34:28.240 --> 00:34:29.350
I suppose there could be,
Under that,
765
00:34:29.350 --> 00:34:34.350
could the MBTA decide to sell most of its lines
766
00:34:35.630 --> 00:34:40.630
to a private entity to run for profit allegedly?
767
00:34:40.650 --> 00:34:42.051
It could, and over the years,
768
00:34:42.051 --> 00:34:43.980
it has disposed of its assets.
769
00:34:43.980 --> 00:34:45.740
I know it has disposed of some of them,
770
00:34:45.740 --> 00:34:47.930
but how about the whole system?
771
00:34:47.930 --> 00:34:48.930
Could it use that?
772
00:34:48.930 --> 00:34:49.763
That's not this case
I know. (laughs)
773
00:34:49.763 --> 00:34:51.654
'cause we're not disposing of anything,
774
00:34:51.654 --> 00:34:52.910
but I think that's important.
775
00:34:52.910 --> 00:34:54.477
We're not disposing of anything here.
776
00:34:54.477 --> 00:34:56.890
The MBTA retains the right of way.
777
00:34:56.890 --> 00:34:58.990
It disposes of a term-limited easement,
778
00:34:58.990 --> 00:35:01.710
and that easement is expressly subordinated
779
00:35:01.710 --> 00:35:04.000
as we note in our briefs, and it's in the appendix,
780
00:35:04.000 --> 00:35:06.460
to the MBTA's right to operate mass transit.
781
00:35:06.460 --> 00:35:08.070
If there's ever a situation in which
782
00:35:08.070 --> 00:35:09.260
they would be inconsistent,
783
00:35:09.260 --> 00:35:12.510
Eversource must buy the ordinance, sorry,
784
00:35:12.510 --> 00:35:15.480
buy the option agreement, and then the easement yield.
785
00:35:15.480 --> 00:35:17.120
That means they may have to remove the line
786
00:35:17.120 --> 00:35:19.160
if they need to use it for mass transit.
787
00:35:19.160 --> 00:35:21.578
MBTA is reign superior in this transaction
788
00:35:21.578 --> 00:35:24.642
in every single one of the specific issues
789
00:35:24.642 --> 00:35:27.510
that would be raised by the prior public use doctrine,
790
00:35:27.510 --> 00:35:29.950
so yes, the MBTA can alienate its property.
791
00:35:29.950 --> 00:35:31.810
It can acquire property, and it does so frequently
792
00:35:31.810 --> 00:35:33.720
with the number of railroad lines.
793
00:35:33.720 --> 00:35:35.620
This rail line is disused.
794
00:35:35.620 --> 00:35:39.050
It was B&M's line, it was acquired in the 1970s,
795
00:35:39.050 --> 00:35:42.250
so in that situation, yes, MBTA decided to acquire it,
796
00:35:42.250 --> 00:35:44.600
bank it for future rail transit purposes
797
00:35:44.600 --> 00:35:46.500
or other mass transit purposes.
798
00:35:46.500 --> 00:35:47.980
The town says it must be rail,
799
00:35:47.980 --> 00:35:49.727
but that's not inherently required.
800
00:35:49.727 --> 00:35:53.104
The MBTA is the Massachusetts Bay Transportation Authority.
801
00:35:53.104 --> 00:35:55.810
That includes buses, it includes bikes,
802
00:35:55.810 --> 00:35:58.670
it includes a whole range of other public transit,
803
00:35:58.670 --> 00:36:00.670
so to the notion that it must be a rail line,
804
00:36:00.670 --> 00:36:02.680
and therefore a rail line would be inconsistent,
805
00:36:02.680 --> 00:36:05.179
simply isn't the scope of what the MBTA acquired it for
806
00:36:05.179 --> 00:36:07.040
on the face of the tape.
807
00:36:07.040 --> 00:36:08.710
Okay, thank you.
Thank you your honor.
808
00:36:08.710 --> 00:36:10.763
Mr. Lewin, we've not forgotten you.
809
00:36:15.010 --> 00:36:17.020
Good morning still, may it please the court.
810
00:36:17.020 --> 00:36:19.063
Joshua Lewin for Eversource Energy.
811
00:36:20.750 --> 00:36:23.410
I'd like to address three issues.
812
00:36:23.410 --> 00:36:24.990
Some of these have been touched on already,
813
00:36:24.990 --> 00:36:26.750
so I might divert a little bit.
814
00:36:26.750 --> 00:36:30.000
First is that the proposed use by Eversource
815
00:36:30.000 --> 00:36:32.060
of this right of way for transmission line
816
00:36:32.060 --> 00:36:34.780
is not a public use.
817
00:36:34.780 --> 00:36:37.530
Secondly, I'd like to touch a little bit on the effects
818
00:36:38.420 --> 00:36:42.610
that would result if this court extended the doctrine
819
00:36:42.610 --> 00:36:47.180
to apply to a utility company's installation
820
00:36:47.180 --> 00:36:48.803
of a transmission line,
821
00:36:49.730 --> 00:36:51.570
and thirdly, I'd like to talk just briefly
822
00:36:51.570 --> 00:36:53.830
about the first two elements of the doctrine
823
00:36:53.830 --> 00:36:57.560
and why the town loses on those two elements.
824
00:36:57.560 --> 00:37:02.430
Is it your assertion also that it's not a public use
825
00:37:02.430 --> 00:37:04.920
because it is a private entity?
826
00:37:04.920 --> 00:37:06.670
Absolutely.
827
00:37:06.670 --> 00:37:09.160
A private entity cannot put something to a public use?
828
00:37:09.160 --> 00:37:10.900
Correct, there's really two elements.
829
00:37:10.900 --> 00:37:14.580
One, it's the user, and two, it's the nature of the use,
830
00:37:14.580 --> 00:37:19.040
and the phrase public use has a very unique meaning
831
00:37:19.040 --> 00:37:22.070
in the context of the prior public use doctrine.
832
00:37:22.070 --> 00:37:24.060
Mr. Heuer referred to the Higginson case,
833
00:37:24.060 --> 00:37:26.850
and I would suggest that the court look at that case.
834
00:37:26.850 --> 00:37:30.930
The Higginson case talks about public uses being
835
00:37:30.930 --> 00:37:34.730
where an agency of the government holds land
836
00:37:34.730 --> 00:37:37.260
and administers that land as a trustee
837
00:37:37.260 --> 00:37:40.180
for the public benefit, for the public at large,
838
00:37:40.180 --> 00:37:44.043
not for any narrow, pecuniary purpose
839
00:37:44.043 --> 00:37:48.550
or limited benefit of the agency or municipality at issue.
840
00:37:48.550 --> 00:37:50.610
We're talking about things such as public parks.
841
00:37:50.610 --> 00:37:55.610
That was really the manner in which the doctrine emerged.
842
00:37:56.030 --> 00:37:59.630
Things like schools, highways, hospitals.
843
00:37:59.630 --> 00:38:01.700
Those are the public uses to which
844
00:38:01.700 --> 00:38:04.820
the doctrine has been applied, and the court's right.
845
00:38:04.820 --> 00:38:07.360
In 200 years, it's never been applied
846
00:38:07.360 --> 00:38:10.560
to a subsequent private use, and there's a reason for that
847
00:38:10.560 --> 00:38:13.440
because outside of the park land context
848
00:38:13.440 --> 00:38:17.160
which has now largely been supplanted by Article 97,
849
00:38:17.160 --> 00:38:19.010
the doctrine has only been employed
850
00:38:19.010 --> 00:38:21.870
where you have conflicting taking powers, right,
851
00:38:21.870 --> 00:38:24.900
so you have two agencies, each of which have been charged
852
00:38:24.900 --> 00:38:28.449
by the legislature or given authority to take property
853
00:38:28.449 --> 00:38:31.664
for specific purposes, and in that context,
854
00:38:31.664 --> 00:38:33.790
this court has said we are gonna leave it
855
00:38:33.790 --> 00:38:36.370
to the legislature to determine which of the
856
00:38:36.370 --> 00:38:40.880
competing public uses will prevail in that circumstance.
857
00:38:40.880 --> 00:38:42.630
That is certainly not the case here.
858
00:38:42.630 --> 00:38:45.720
Eversource is a paradigmatically private use.
859
00:38:45.720 --> 00:38:48.610
It is a for-profit corporation.
860
00:38:48.610 --> 00:38:50.570
The transmission line that will be installed
861
00:38:50.570 --> 00:38:52.733
will be used to generate revenue,
862
00:38:54.520 --> 00:38:59.520
and it's totally outside of the prior public use doctrine.
863
00:38:59.530 --> 00:39:01.290
If this court were to apply
864
00:39:01.290 --> 00:39:04.573
the prior public use doctrine to--
865
00:39:04.573 --> 00:39:07.370
Well then we can't stop with the question
866
00:39:07.370 --> 00:39:09.790
the Chief began with which is whether this is within
867
00:39:09.790 --> 00:39:14.190
the MBTA's authority because I take it the first step
868
00:39:14.190 --> 00:39:18.170
is transferring it to you is within their authority, right?
869
00:39:18.170 --> 00:39:21.560
So it's a public use for them to give it to you
870
00:39:21.560 --> 00:39:23.010
to use for a private use?
871
00:39:23.010 --> 00:39:25.840
I'm just trying to get a sense of where
872
00:39:25.840 --> 00:39:28.550
are you going for too much here.
873
00:39:28.550 --> 00:39:31.330
Well I think any, as my brother indicated,
874
00:39:31.330 --> 00:39:32.900
any one of the four elements.
875
00:39:32.900 --> 00:39:35.540
I know, but we've for a motion to dismiss,
876
00:39:35.540 --> 00:39:37.590
so I'm just trying to understand.
877
00:39:37.590 --> 00:39:42.380
You say that your private use is a totally private use,
878
00:39:42.380 --> 00:39:44.610
but you're fulfilling sort of a part of
879
00:39:44.610 --> 00:39:46.120
the public mission of the MBTA,
880
00:39:46.120 --> 00:39:50.780
so I get confused about why that's a totally private use.
881
00:39:50.780 --> 00:39:52.696
Well I see where the court's going there,
882
00:39:52.696 --> 00:39:54.277
and if I understand that what you're saying is.
883
00:39:54.277 --> 00:39:56.140
Not sure I'm going anywhere,
884
00:39:56.140 --> 00:39:57.760
but I'm just, I'm confused.
885
00:39:57.760 --> 00:40:02.760
The MBTA's use in leasing it is the public use at issue,
886
00:40:03.340 --> 00:40:06.280
and if you look at it in that light,
887
00:40:06.280 --> 00:40:07.799
first of all, I would suggest that
888
00:40:07.799 --> 00:40:10.270
under the case law I was just discussing,
889
00:40:10.270 --> 00:40:12.630
even that wouldn't be considered a public use
890
00:40:12.630 --> 00:40:15.620
because narrow, revenue-generating uses
891
00:40:15.620 --> 00:40:17.890
aren't considered to be public uses
892
00:40:17.890 --> 00:40:19.480
for purposes of the doctrine,
893
00:40:19.480 --> 00:40:21.620
but even if you were to say that,
894
00:40:21.620 --> 00:40:23.990
still the next element in the inquiry is
895
00:40:23.990 --> 00:40:26.920
whether they have express legislative authorization
896
00:40:26.920 --> 00:40:29.658
to do so, and under 161.a,
897
00:40:29.658 --> 00:40:32.200
I suggest that they certainly do.
898
00:40:32.200 --> 00:40:34.143
But do we stop there, you know?
899
00:40:35.443 --> 00:40:38.253
This seems to be a morass once we get into this,
900
00:40:39.270 --> 00:40:43.490
but do we stop with the MBTA can do this
901
00:40:44.850 --> 00:40:49.010
under that statute, or do we have to then analyze
902
00:40:49.010 --> 00:40:51.960
this larger question of whether the public use doctrine
903
00:40:51.960 --> 00:40:54.910
can be applied to a private use down the road.
904
00:40:54.910 --> 00:40:57.290
No, I would suggest there's no need to go that far.
905
00:40:57.290 --> 00:41:00.430
Once they lose on any one of the elements, that's it,
906
00:41:00.430 --> 00:41:03.300
and if there's express legislative authorization
907
00:41:03.300 --> 00:41:05.310
under 161.a, I would suggest yes,
908
00:41:05.310 --> 00:41:06.600
the court can stop right there.
909
00:41:06.600 --> 00:41:08.100
That's the end of the inquiry.
910
00:41:10.050 --> 00:41:11.540
Just briefly on the impacts
911
00:41:11.540 --> 00:41:13.293
if the court were to extend this.
912
00:41:15.030 --> 00:41:18.810
As the amicus brief of National Grid points out,
913
00:41:18.810 --> 00:41:23.493
utility lines and utility companies rely on public land
914
00:41:23.493 --> 00:41:25.853
to install and expand their systems.
915
00:41:26.830 --> 00:41:29.620
This single transmission line is a good example.
916
00:41:29.620 --> 00:41:31.540
It passes through a number of communities
917
00:41:31.540 --> 00:41:36.350
and will pass over a number of public lands.
918
00:41:36.350 --> 00:41:38.090
If this court were to extend the doctrine,
919
00:41:38.090 --> 00:41:42.520
it would literally paralyze the utility company's
920
00:41:42.520 --> 00:41:45.410
ability to expand and enhance their systems.
921
00:41:45.410 --> 00:41:48.820
Every time they would seek to add a line on a street
922
00:41:48.820 --> 00:41:52.390
or cross MBTA property or any other property given
923
00:41:53.341 --> 00:41:55.740
by a town or municipality or government agency,
924
00:41:55.740 --> 00:41:57.850
they would literally have to seek the legislature's
925
00:41:57.850 --> 00:42:00.000
express authorization to do so.
926
00:42:00.000 --> 00:42:04.510
It would be impossible to provide cost-effective
927
00:42:04.510 --> 00:42:07.650
and reliable service under those circumstances.
928
00:42:07.650 --> 00:42:09.214
Okay, thank you.
Thank you.
929
00:42:09.214 --> 00:42:12.047
(papers rustling)