-: SJC-12920.
Said S. Abuzahra.
The City of Cambridge.
-: Good morning counsel,
Mr. Leonard please.
-: Yes, good morning your honor.
May it please the court.
This case is an Eminent Domain case
that I'd like to discuss
two issues with the court.
The first issue is whether
the plaintiff in an Eminent Domain case
can accept a pro tanto award
and then simultaneously assert and prosecute a claim
that the Eminent Domain taking is invalid.
The section.
The second part of that that I'd like to discuss
is the public policy reasons
to why the court should not allow that tactic
to be used.
The basic facts of the case are simple.
The case arises out of an October 7, 2016
Eminent Domain taking,
of the plaintiff's property
which consisted of a 28,000 square foot parcel
that had several abandoned apartment buildings on it.
The city made the taking
for the purpose of the creation of affordable
senior and transitional housing
and for other municipal purposes.
The pro tanto was awarded to the plaintiff
in the amount of $3,700,000.
At the time of the recording of the Order of Taking,
there was a case pending in the Middlesex Superior Court,
entitled Abeer A-B-E-E-R Inc
versus Success Realty Trust,
where the Title to this property was put into question.
That case had been filed in January 21, 2013,
some three years before this taking,
but little action had taken place in the case.
Pursuant to General Laws Chapter 79 Section D,
the plaintiff was under a legal disability therefore,
because he couldn't prove Title to the property.
And therefore the City of Cambridge
deposited the $3,700,000 Pro-Tanto
with the City Treasurer
until this issue was resolved.
-: Excuse me Leonard,
can I just, can I just stop you there?
'Cause understanding the facts of the case,
my question is where did the single justice go wrong,
and what standard of review should we be using?
-: Yes the single justice your honor
went, went wrong for several reasons.
First reason is he really didn't accord
the considerable deference
to the learned opinion
of Judge Henry and the Superior Court,
he really even addresses
the rationale behind Judge Henry's determination.
And the error in the single justice ways
is he makes a determination
at the outset of his opinion,
that this issue is controlled
by an interpretation of the statute.
And he says that the statute admits
no exception on its face
regarding making a takings
and then having a challenge of the taking.
It doesn't deal with the issue he rules
and therefore he applies the statute literally
and determines
that the money should be paid over to Mr. Abuzahra.
The single justice actually cites
General Law's Chapter 79 Section 3
which says that the right to damage vest
on the recording of the order of taking
unless otherwise provided by law.
The single justice gives no application whatsoever
to that exception to the payment of the pro tanto,
unless otherwise provided by law.
He applies the general rules of construction of statutes.
When in fact the evidence indicates that this statute
is part of the General Rules of Payment
of Eminent Domain Damages contained in
Chapter 79 Section 7 A B C D E.
It's a...
They're sets of mechanical statutes,
they're procedural statutes.
They don't deal with the substantive law
and the judge applies those statutes
as if they did apply to substantive law.
This particular Eminent Domain Statute
does not contemplate a situation where the
validity of the taking is raised.
It doesn't,
it doesn't even portend to,
to deal with that issue.
And the important error that the court made--
-: Doesn't it, doesn't it.
Doesn't it...
Doesn't the single justice's order
track the statutory language
that the pro tanto should be paid
when the taking is recorded, right?
That it does track it. Right?
-: It doesn't-- -: I understand
you've got policy reasons,
but it, it...
And there isn't and otherwise provided by law, right?
There's no statutory exception that meets this--
-: I'd respectfully suggest to the contrary your honor
and that is General Laws Chapter 79 Section 3.
It says that the Eminent Domain pro tanto
should be paid over,
unless otherwise provided by law.
And in point of fact
we have cases in Massachusetts which suggest
that it shouldn't be paid over,
but they're not as precise
as the cases from other jurisdictions that I cite.
More importantly I think your honor,
is this court has said
when the you're dealing with a case
of statutory silence--
-: Can I raise a hypothetical for you?
I understand it's different
than the one we've got here but--
-: Sure. -: this is the person's house.
This is,
you know this is not a business person,
but Cambridge has taken somebody's home.
That home, maybe even a home where they rented out
'cause they need help to pay their mortgage.
(coughing) Cambridge takes the house,
then the person thinks the taking is improper.
But you've taken both their home
and their means of livelihood.
So they don't get the pro tanto award.
How do they live? (coughing)
-: Well they have an election to make your honor.
First of all if they are going to challenge the
validity of the taking,
then they should not accept the pro tanto award.
The general rule is the pro tanto award is placed
with the clerk until the validity of the taking
is determined-- -: How are they gonna litigate
the validity of the taking?
-: They're going to litigate-- -: They don't have any money.
They don't have,
they don't have the home
and they don't have a pro tanto award,
how do they litigate the validity of the taking?
-: They, they litigate it
because they could bring
an action in the Superior Court
to restrain further action regarding the taking,
until a validity question,
under those very unique circumstances
has been determined.
And that would be appropriate
for the Superior Court to grant that type of relief,
under those circumstances.
As you honor knows,
and I won't get into the technicalities of it,
but where you're dealing with a residential taking
there are State and Federal relocation regulations,
which strictly govern that type of matter.
You have four months before you have to leave
the residence as a matter of law.
And also the State and Federal Regulations
require all kinds of payments for relocation,
finding another location,
affirmatively finding a location
that's reasonably comparable to the property taken.
Here the, the error in the single justice--
-: But how do they...
They don't...
So they don't get the pro tanto award,
they can't buy that property, right?
I mean, they're...
They've got no money
and they don't have the money to hire Mr. Bowen.
-: Few people do your honor.
But I think in truth,
it's the discretion of the Superior Court
to give injunctive relief to prevent
that type of awful circumstance
from having...
from, from happening.
-: Counsel, you said a few moments ago
in an answer to Justice Lowy's question
that the general rule
is that the money goes into the,
into the court to be held in escrow?
Is that...
When you say the general rule,
where does that come from?
-: Well it, it, it comes from
a combination of statutes.
But in this particular instance,
it was a discretionary judgment of Judge Henry.
-: Right, but I'm just looking for the sources,
so you're saying
it's a combination of statutes
to get to this general rule.
I understand Judge Henry's decision,
so which-- -: Yeah the...
The combination of statutes would be 7B.
79 Section 7B, C, D.
Which talk about the
the payment of the pro tanto award,
under the-- -: And it says,
to put it in escrow if there's a dispute?
-: Well, that's certainly the inference
and that's the common practice
of most Superior Court judges.
-: Mr. Leonard,
I'm looking at some of the Appeals Court decisions,
and they may clear that
they're certainly separate civil actions,
there's no codependency, correct?
-: Yes. I think that's true your honor.
-: Okay. And then what happens practically
if the plaintiff, homeowner loses
and the taking is lawful?
-: If the taking is lawful,
then the homeowner would receive the pro tanto award,
plus the plaintiff-- -: What happens
when the plaintiff...
What happens the other way,
when the plaintiff wins the taking?
-: If the plaintiff,
if the plaintiff wins then
the burden would be on the city,
to accept the property back
and to compensate the plaintiff
for any damages that has accrued to the plaintiff,
from the date of the recording of the taking
until the date of the judgment
of the Superior Court,
or a final judgment of the Appeals Court
or the Supreme Judicial Court,
including the the attorneys face.
-: And that compensation would take care of
whatever money's was spent off the pro tanto award
to defend right, or litigate?
-: Yeah. No it would be an addition
to the pro tanto award.
-: An addition, right? -: Yes in addition.
But I'm trying to suggest here--
-: Have you tried
ask you the practical realities
of having this money either go up or stay.
-: Oh, the practical realities
are very very difficult your honor,
because as you know
anytime that property is taken by Eminent Domain
by a municipality,
for a wide variety of reasons including
affordable housing or including expansion
of municipal hospitals,
or the establishment of facilities
for people who are drug addicted and all of that.
These are not popular takings with a budding properties.
And one of the issues that the court has to confront
in these situations
is what is the proper way
to give people the opportunity
of challenging the validity of the taking.
If it is a bonafide challenge to the taking,
but as opposed to
somebody bringing a claim to invalidate a taking
in order to tie up the property
four 40B purposes,
for extended periods of time hoping
that the municipality will not go forward
with the taking, in this--
-: I'm sorry, please continue.
-: In this particular instance judge,
the plaintiff accepted the pro tanto,
I believe in late November, early December of 2019
and the City.
What happens when somebody brings a challenge
to the validity of the taking,
there's a cloud on the title, your honor.
And as a result of that,
the municipality isn't able to finance the public work
for which the property was taken.
So in this case,
wow, the dwellings.
The two apartment houses that were on the property
were demolished
under the supervision of the superior court judge.
This property has laid fallow
for four years and two months,
and probably will remain the same
for the next three or four years,
just because somebody has brought a challenge to the taking.
And so that is one of the real burdens that the municipality
experiences under the circumstances
and it's not just not having the opportunity
to utilize and develop the property
for a legitimate public purpose.
We also have construction and redevelopment costs
-: Whatever the practical realities are
as Justice as as
as catheter asked you,
we we're governed by the statutes, correct?
-: Yes, you are your honor.
And here, the I'm suggesting to the court
that where you have a statute that is silent
on the issue of validity of the taking
the regular rules,
the regular maxims that one applies
is, is not the same.
This court has taught
that in cases of statutory silence,
the court does not employ
conventional or statutory constructions
in a mechanical way
that upends the Common Law
and fundamentally makes no sense.
-: Are you saying Mr. Leonard,
your position is that
opinion of the justices
and the Common Law would be
unless otherwise provided by law,
pro tanto is basically
the functional equivalent of damages?
-: It's a functional equivalent of
temporary damages
allowing the landowner
to petition the Superior Court
for additional damages.
In this case where the single Justice
didn't apply the standards that
this court has set forth
in a statutory silence sense,
he made a finding,
this single justice made a finding that the
cases that we cite in our memorandum,
which he said are old and out of state cases
are in appeset.
I have to confess to the court
that I had truly had to look up
what in appeset meant,
and it means--
-: (indistinct)
-: Well it aint that--
(laughter)
I'll tell you what it means,
it is good for me in this sense.
It means you're relevant.
This thing single justice said that
all of the cases signed cited by the City of Cambridge.
And it's papers are irrelevant
at the same time,
this court has cautioned
in statutory silence cases that
you have to be very careful
in not up ending the Common Law.
And the judge says that
Common Law is irrelevant under these circumstances
and it's not irrelevant under these circumstances.
-: Can I ask you Mr. Leonard,
which cases do you think are the most important for you?
For the in terms of the out of state cases.
I'm not familiar with the statutory scheme in other States.
Could you tell me which States have
have good statutory schemes and
deal with this in some fashion that you think
is supportive of you?
-: Well I think they all do your honor.
I think all of the...
In fact, it's just the opposite of that.
In our memorandum,
we cite 11 cases from 10 different jurisdictions,
including an opinion of
the Supreme Court of the United States,
all of which support the position unanimously
that one cannot challenge the efficacy of validity
of the Eminent Domain taking,
if you accept the pro tanto award.
And in point of fact,
neither Mr. Bowen, my colleague and friend
who's been trying Eminent Domain cases with me
for 30 years plus,
he can't cite one case
nor does the single justice
cite any case in support of the proposition
that you can challenge the validity of a taking
and accept the pro tanto award at the same time.
There's no authority for that position whatsoever.
They Bible on Eminent Domain
Nichols on Eminent Domain says,
you can't do it.
The CJS says you can't do it,
Angela says you can't do it.
The model Eminent Domain code says,
you can't do it.
I admit that's not law in Massachusetts,
the model Eminent Domain code,
but there's absolutely no authority whatsoever
for this novel interpretation of the single justice
by his applying
the statute in a rigid way,
ignoring Common Law.
If the justice had paid attention the Common Law,
he would have understood
that these various jurisdictions
'cause I'm going back to the Supreme judicial
the Supreme court case goes back to 1908.
And the latest case that we cite is 1990.
So from 1908 to 1990,
there's no case in the United States
that supports the plaintiff's position.
-: But there's no case that supports
your position directly either,
there are gaps in all of these cases, right?
Nothing's, nothing's right on point here,
you're relying on these old equity cases
that are distinguishable.
We don't have the exact factual scenario here
in any of these cases.
-: You never do your honor.
But if you read the 11 cases
and the cases that are certainly more current
the cases
after the rules of civil procedure have been updated,
so that you can you can bring in
simultaneous contradictory theories
in the case itself,
but you can't accept a judgment
or you can't accept money--
-: But this isn't,
this isn't a final judgment.
This is a pro tanto award it's not a final judgment.
I understand you can't win the case
and then try to have it both ways.
But this is a pro tanto,
it's an interim solution.
It's not a final judgment.
-: No but what happens your honor,
if you wanna look at the big picture
and you know 40 B types of takings,
in more often than not and practically speaking not
embraced by neighbors and surrounding properties.
What happens if,
in order to delay the project
five, six or eight years,
just by bringing a claim
that the subject property has been targeted.
That some of the procedures haven't been followed.
Your honor, when you read Chapter 79 Section 7 B, C, D, E,
you also read section 10A,
which says that
if there were imperfections in the way that
the pro tanto was handled,
none of those imperfections,
while they may accrue damages
for the plaintiff in the case,
none of them are adequate
to defeat the validity of the taking.
So these are really procedural statutes we're talking about
in 79 B, C and D.
And as a matter of fact,
most of the cases that we cite admittedly out of court,
out of state cases,
but dealing with the jurisdictions
like Maryland and in California
and in Texas and in New Jersey
they all deal with essentially the same fact pattern,
where somebody is seeking to challenge
the validity of taking,
while accepting the pro tanto.
And the general rule is that
it is not permissible to do so
because it's unfair to the taking authority
and it's electing remedies,
and then seeking to continue
to secure additional damages.
Here that the city never was hiding
the pro tanto from the plaintiff,
we always wanted to pay the plaintiff the pro tanto.
But only if as in when the plaintiff acknowledged
that he couldn't pursue the invalidity claim--
-: Well wait, that's not in statute though right?
That you get to withhold that
if he waives further rights?
-: The statutes...
No, the Common Law provides
that you're not able
to challenge the validity of the taking
and accept the pro tanto at the same time.
That's the prevailing Common Law
in every state in the union.
And it's that way for a good purpose.
Certainly the plaintiff can accept a pro tanto,
and continue to litigate to secure additional damages.
That's what the pro tanto statutes are all about. And--
-: Can I ask you something along those lines?
-: Yes your honor. -: In this particular case,
is there...
How much more might might the owner...
Will with the owner get?
It was what, 3.7 million?
-: Yes your honor, that's right.
-: So how many...
What percentage of the actual damages is that?
It seems like a lot of money.
-: Well, it is a lot of money.
And that was
as a result of the appraisal
by a licensed appraiser,
who possesses the MAI Degree,
and a member of the...
He possesses seal CLA degree.
In my experience judge,
if the city determined that
that property is worth $3.7 million
as of the date of the taking,
in all probability and in
just on the experience of my practice,
everyone will come in.
The plaintiff will come in for twice that pro tanto,
and three times the pro tanto award.
And it just seems to be common form
looking for splits between the appraises
and to secure additional money.
But whatever it is,
that's the...
The plaintiff--
-: Well, let me ask if there are further questions
of Mr. Leonard.
Thank you Mr. Leonard,
you got us after we had our coffee.
(laughter)
-: That's refreshing.
Thank you your honor, it's been a pleasure.
-: All right, I'll turn it to Mr. Bowen.
-: Good morning your honors,
and thank you very much.
First of all if I can respond directly to
to Justice Budd's first question
about the standard of review,
Justice Ruben followed it exactly,
and even quoted Jet line services,
it was clear error of law or abuse of discretion.
And under Aspinwall
which is a 442 mass 381 page 390,
the standard of review in this case is,
was Justice Ruben's ruling legally correct,
including whether discretion was abused?
And under Aspinwall,
of course this court should look at Judge Henry's ruling,
which as Justice Rubin pointed out,
contains not a single case citation,
not a single reference to the statute it governs,
not any reference to treaties.
Instead justice...
I'm sorry, Judge Henry says that,
it seems to him incongruous,
and then went on to add
if it seems to him somehow unfair
for Professor Abuzahra and his family to get a pro tanto
because somehow that would be money he's not entitled to.
Well, that is completely contrary to the statute.
It was a legally incorrect ruling.
Justice Rubin in contrast
went in detail through the entire,
pretty much entire scheme
under chapter 79 and pointed out how and
Mr. Leonard agreed that the statute does control,
that there's no doubt that the pro tanto payment
has to be made in 7B.
And it has to be made immediately.
The statute says shall several times
and in section 7B it says,
"Pay it immediately," at least twice.
Prompt appears at least twice.
And Justice Ruben also cited two very important cases.
One more versus Sanford and Parr-Angel
and more which is an old case, but it's still good law.
Moore says, I have it here somewhere,
that it would certainly be unjust
if a party who recently deemed that by statute
his property was taken unconstitutionally,
should somehow be compelled to elect
whether he pursues that claim
or does exactly what attorney Leonard wants my client to do,
give up that challenge.
And the way that-- -: Isn't it tougher...
I mean, it's a tougher case than Moore,
because the only issue here is
whether the pro tanto goes into the court
or it goes to your client, right?
That's the tricky issue
and that's not addressed by any of these cases, right?
I mean-- -: No, I think...
I think that's correct your honor.
I think the answer really is
as justice Rubin said
is controlled by statute.
And the statute is just has-- -: No, No.
-: Has no exceptions. -: How do we know
that the statute is meant to cover this situation?
There there's nothing here that talks about,
If you know, if the owner wants to
challenge the validity of the takings.
How do we know that it applies here?
-: The one place where it does,
it does get mentioned implicitly indirectly
is in section 18 your honor,
which gives special recognition to the fact that
there are validity challenges
and that there's an actual extra
built-in statute limitations period
for a property owner who has
an extra three months after a ruling to challenge it.
Or I might have that reversed.
I apologize if I do.
But Section 18 of chapter 79 expressly references
the right to bring explain
to challenge the validity of a taking,
that obviously it's the same statute
contains all those mandatory provisions
that the person,
the entity that takes the property has to pay.
And John Leonard,
Attorney Leonard talks about
the injustice to the City of being held up on a project.
That's a potential hypothetical future scenario.
Maybe in this case there are some funding problems.
I don't, I wouldn't be surprised.
But what we have in this case,
is an actual clear and present
and continuing hardship
to the owner that is exercising
its constitutional right to challenge
the validity of the taking
at the same time as challenging and taking itself
and all the cases that have been cited
including Parr-Angel,
as one of the Justices pointed out.
They talk about a waiver occurring
with an acceptance of a final judgment.
So listen and built into the statute
and to all the cases
is the right to bring both claims at once,
which nobody challenges.
And the idea that the pro tanto might be required.
Refund is directly addressed in Section 8A.
That if we go forward
and we succeed in getting the property back,
we have our claim under count four,
as attorney Leonard recognized,
to see how much the city owes us
for having taken the property
for now four and a half years and counting.
They owe us money for that,
if we get the property back.
If there is a, what's called a refund judgment
and I've experienced a couple of these
when I was at the Attorney General's office.
If we get a refund judgment,
we would be ordered to pay back
the difference between what the pro tanto is
and with interest on that
and the city gets their money.
-: Well, what about the concern of the taxpayer though?
Let's say that the pro tanto would
goes to the landowner
and the validity challenge fails.
-: Yes. -: Then you have
this often happens with these situations,
that you have a drop in real estate value.
It's the taxpayers who are out the money.
If the money can't be refunded by the landowner
-: Taxpayers could potentially be out of some money,
Justice Rubin addresses that.
As the risk is on the city,
it has, your honor all the power here.
It was not Professor Abuzahra's desire
to have his property taken.
The city made that taking
and the city now has the property and the money.
Now the city would be required to resort
to the numerous legal vehicles
for securing a judgment,
if there was a refund judgment
that Professor Abuzahra could not pay,
first they would have to-- -: But no one's saying
that the city should have the money.
The issue is whether the money
should go to the court or to the landowner.
No one's saying that the city should just
sit on this money during the validity challenge.
-: Well, if the money is in...
You know as a practical matter in real life,
if the money is sitting in the court
that's the same thing for now.
And until, I mean just like Attorney Leonard said
three to four to five years more
before this is resolved,
that would be a very bad outcome.
We've been waiting for four years already,
but that means the client has been deprived of this money
and has no access to it.
And we know from the Bromfield case your honor,
which I cited in my brief.
That this court said in Bromfield,
that citizens don't have to just sit around indefinitely
and wait for their money.
We actually have a right to pursue this.
And Bromfield even says,
they left it with, if something wasn't done,
it was the State taking on that case
then the court would consider
ordering the return of the property.
This is a you know,
established law of this court of it's jurisdiction.
(indistinct) So right now,
he doesn't have access to any of that money.
It's all in the hands...
I mean we have it now
but we're keeping it a safe place
because this court ordered...
Or the lower court ordered it to be returned.
-: Can I ask you a question please, Mr. Bowen?
John: Certainly.
-: Mr. Bowen, I was asking about the question,
whether or not there were statutes
in other States that are similar to ours.
Or whether there're statutes that are not
so silent on the subject,
or when there is case law
that actually supports your position?
Has there any been any case
that really has addressed this to come out your way?
-: I don't think there's been a case exactly
on all fours with this.
-: So we'd be the first? -: I think that--
-: So, you're asking us to be the first in other words?
-: I think it would.
I think in that regard your honor,
I think a lot of the cases
that Attorney Leonard relied on
are cases were decided before 1974,
which as your honors knows is when
equity and law proceedings merged in one,
in one action.
-: And that that makes a difference because why?
Why does that make a difference?
-: Because some of the cases say
that you cannot challenge...
Back then when we had bills and equity
and petitions for damages as a law action,
back then in a petition for damages in a law action
the person bringing that claim was presumed to accept
for purposes of that action that the taking was legal.
And they could simultaneously say
in a separate equity action
that the taking was invalid.
And that's where some of this confusion comes in
and opinion of the justices
kind of miss cites this.
And in that opinion of justices
first of all was not a chase in controversy
it was responding to a legislative question.
The second, it was decided in 1971 before the merger
in the sentence that Mr. Leonard relies on so heavily
really because it cites Barns
and it cites a Parr V Angel
and it cites chapter 79, section 39.
What that means is in that action
when you were looking for damages
you do accept for purposes of that case
but you can't in a separate simultaneous action,
say take what's invalid.
Now you can do both in the same pit.
But the specific answer to your question your honor,
is no, there's not that addresses
what happens to the pro tanto.
But that as justice Ruben said
has been addressed incredibly clearly
in the statute and the statute--
-: Well I know.
What I was clearly thinking maybe is
I think (indistinct) we are?
I think (indistinct) more silence
than it is clarity, isn't it?
-: No, I think it says the pro tanto payment shall be paid.
And if there's an overpayment
and this has happened in cases
where there's no challenge
to validity of the taking.
I've had a couple of those myself at the AG's office.
And at the end of the trial,
the jury comes back and says
the pro tanto was too much--
-: Yeah (indistinct) Right?
I mean we're talking about one scenario.
One is an argument about the amount of the money
that's fair to pay.
And the other is whether or not that should be taken at all,
whether there should be any money awarded at all?
Because it's not an illegal...
If it's not a legal taking,
it shouldn't be happening at all, right?
So it shouldn't (indistinct) be any damages?
-: Well, it shouldn't have happened, but it did.
And as attorney Leonard admitted under count four,
if we get the property back
we still get damages from the date of taking
back in August of 2016-- -: That's right.
-: until October, 2016, until we get the property back.
-: That's right. -: So we will get
money at some point.
-: There's damages.
But damages are not quite the same thing, right?
Damages are for an illegal taking,
I don't think it's the same thing as damages
for a legal taking, are there?
-: Well, yes they are.
The damages.
If they're taking is held to be illegal,
the taking still took place
and they've still had our property for over four years.
And they owe us it's
(Barbara speaking indistinctly)
as if they took somebody's house for four years,
and we said, "Oh, sorry about that.
We're wrong, we give it back to you."
And then the owner would say,
"Yeah, but I've had no place to live for four years.
You've had my property."
It's like, you've rented my property for four years,
here's the bill."
-: So the measure of damages, excuse me.
The measure of damages will be the same
you're saying as challenging,
it wouldn't necessarily be a ostensive amount,
the measure of damages would be a potential amount
of whatever was determined to be
the right amount of damages
for the property itself, right?
-: Exactly. And it would be prorated
because if we win on validity,
it as if they rented it,
instead of taking it outright--
-: Yes, okay. -: Same way
I could rent a place on the Cape for four years
but I don't get it for free because I didn't buy it.
I mean, I still owe for the four years.
It would cost more to buy it
but it'll cost a lot to rent it for four years too.
-: Mr. Bowen-- -: Yes sir.
-: Your colleagues,
your brother thinks all the commentators
as being on the opposite side of your position, sort of.
And you know,
in dirt law we've got really subtle expectations.
Will this come as a shock to all those commentators?
If we decide that you get to keep the pro tanto award
and while you challenged the taking?
Is there any handling of that in those commentators,
null and all the other sort of ancient treatises on this?
-: Nichols, and this was part of
the city's briefs from the beginning.
Nichols cites a case called USB Macintosh.
There was no Massachusetts case decided.
But the the short and direct answer you honor is,
No it would be a corrective,
and they'd have to make note of the fact
that there's a difference between
law and equity in Massachusetts
and many courts until the 70's.
But they say that it's about a final judgment,
a pro tanto award--
-: But this is a, I'm just trying
this goes on across the country all the time.
-: Yes. -: So I'm just trying
to get an understanding of
will this be perceived as
a radical sort of equity decision by us?
Or is this something that's dealt with out there?
You know, cause I'm...
You know, again...
To me, I understand the equity,
not necessarily on the side of your client,
but on the side of, you know
a small homeowner who loses his house and her house
and can't do anything,
but I'm just trying to get a sense
of whether you know,
Doug Law is just toughening circumstances
requiring this choice
and whether we're gonna be doing something
that's a real outlier if we don't follow that.
-: No you will not your honor.
And by the way, my clients you know,
kids lived in this place
and his sister lived in this place.
It was an income producing property,
but it was also a place he kept for his family.
But no, it would be perhaps a corrective
and it would point out the fact that, you know
there has to be some kind of temporary justice
and there're case law that I think of
off the top of my head,
where the purpose of a pro tanto,
as I believe you pointed out earlier
is to give the owner who's suddenly been deprived completely
against his will.
His, her, his will been completely deprived of
either an income producing property or a home
and is left what, to do what?
-: I thought councilmen are up to...
I thought the purpose of the pro tanto
was to stop the running of the interest?
-: Well there's a dual purpose.
And I wish I, you know,
I have a thousand cases here on my desk.
I wish I could put my finger on it.
-: It's okay.
-: But it's also-- -: So you're saying
there's two purposes?
-: You're right.
Two cases directly on point with that,
and one actually addresses that.
The first purpose, I think it might be
one of the cases that it's not coaching six.
-: All right. -: I apologize,
I don't know. But there's two--
-: That's okay, but there's another case.
There's another case,
it's probably in the briefs and I...
But it's Collins versus Town of Webster?
Are you familiar with that one?
John: Yes I am.
-: That would seem to support your argument, wouldn't it?
-: Yeah. It's a dual purpose.
It's to stop the interest running it saves the
taking it through that way.
But also it's designed to give the
the person whose property has been taken
at least some money to get back on their feet, you know
-: Now Collins versus town of Webster.
Also you have the payment pro tanto,
and you have the, the homeowners challenging the taking.
Is that right?
-: I think so you honor.
Yeah. I wish I were more familiar with that--
-: That's okay-- -: right off the top
of my head I did. -: It just seems
its a good case for you.
-: And I liked that case.
(laughter)
I did cite a case in my brief I know,
where it said, one of the purposes of the pro tanto
is to get some money into the hands of the person
who without their asking for it or wanting it,
is suddenly left without their property.
And you know, there are remedies.
One of them is to let them have access to that money,
knowing that there might be a refund judgment
down the road and it's on them.
And as far as placing the burden
as Justice Rubin noted,
the city has vast amount more access,
access to capital and funding and money.
They could raise their parking rates or whatever.
My guy is a retired Professor Emeritus
from Salem State University.
He's got a family that he's been supporting
in part off this property.
He doesn't have access to this.
-: Mr. Bowen, can I ask you another legal question?
-: Sure. -: So there are two types
of taking processes, right?
-: Right. -: There's this quick,
quick take. -: Right.
-: And then there's the one
where you go through the courts.
Had they used the other process right,
we wouldn't be here. Right?
-: Exactly, exactly.
And I point that out in my brief as well,
that we didn't choose either to be taken
or the method by which the city chose to take.
And the city made a spot taking of a single property.
This was not a part of a well-thought out
highway project or a big, you know hospital program
like attorney Leonard was referencing.
They took a property
that's a little more than a half of an acre,
a single, they singled out a single property
to address what Cambridge calls on it's website
all over the place,
"A Massive Affordable Housing Problem."
-: Yeah. I'm trying to avoid the specific so much
as the taking process.
There's, there's the...
Again, I used to know--
Its not familiar.
But, they can go through a judicial process
where you determine the validity of the taking,
you establish the amount.
But instead of that,
they went through this quick take
where you take the property
and then you fight about it.
So in certain ways this is a narrower issue, right?
We're just dealing with this quick take.
-: Yeah. If they did it pursuant to Chapter 88,
the first thing that has to happen
and it happens very quickly,
is the person whose property is taken,
has to say whether or not
they're going to challenge the taking.
And then that is supposed to be
by design resolved right away.
And it doesn't go on to damages,
until the validity or improprieties in the taking
have been resolved.
So 88 would have been the ideal vehicle
for this kind of case 'cause the city has to know
their solicitor in the past has told them that
this is a risky thing to take a single property like this.
And they could have brought it pursuant to 88,
we would have had this resolved, you know, three years ago.
-: Can I ask just a practical question?
Was there not an option for you guys
to just sort of figure out,
"Hey look, why don't you pay us monthly
since we're deprived of the property?
And you know, we'll go from there."
Why do you get the full amount of the pro tanto,
if you're not gonna end up with the property in the end
and you have to give it back?
-: Well, we may it...
We may have to give it back, your honor,
I think you know--
-: I'm not saying I'm not pre prejudging that at all.
I'm saying-- -: I know, I understand.
-: If you ended up losing it,
why do you get the whole amount?
-: Well, the simple answer your honor is
because the statute says we do.
And as Justice Ruben pointed out,
if we owe money later then it's on us.
But that is something that the city needed to contemplate.
Because as I just mentioned,
the city controlled the taking,
they controlled how it was taken.
And they determined what they felt was a fair amount
which we respectfully disagree with.
They didn't ask us what we thought the property was worth.
They didn't say, "Hey, we're about to take your property.
We have an appraisal, do you wanna see it?
Maybe you can like point out problems with it.
Maybe you can get your own appraisal."
And then we could resolve this before
there was even a taking.
This was happened like boom,
without our knowledge, like there was a meeting.
And then at the meeting,
they signed the order, and the order issued.
This was was remarkably fast, quickly done.
And we you know, and I have spoken,
I've gone to the city on numerous occasions and said,
"Can't we resolve this?"
-: Would that be-- -: One thing that I pointed out
-: Counter to the quick taking...
How does the quick take statute affect this
in terms of their (swallows hard).
Excuse me, they must...
There are other ways to do it
other than this quick take statute, right?
-: Yes, yes there are.
-: Would that have worked with Justice Budd's suggestion?
-: I think we would have had an answer
immediately to the question if they do it
I think they still have to put a certain amount
of money on account in the court.
So 88 says that they've made the deposit
into court of what they think the property is worth.
And the first thing we decide is
you know, is the taking valid.
We would have under that scenario have said
"Well if it's valid, we now want them,
you know, we might want to withdraw some money."
But there are very clear concrete rules
about how that proceeds.
But we have an opportunity immediately upfront
to say, "Wait a minute, what are you doing?
You're acting too fast."
And to get back to Justice Budd's question
I've asked the city on numerous occasions,
"Why can't we sit down and try and figure something out?
My client has built 40B housing."
You know, he somehow managed to be
a full professor of mathematics
and also develop property on the side.
He's developed 40 B housing.
He wants to develop 40 B housing on this site
or at least at least affordable housing component.
He wants a place for his family
and he wants a place to make a little bit of income
on some of the apartments
and maybe renting some parking spaces,
but he has done affordable housing himself.
It's a single small property.
And right now four plus years later,
he's still funding my very modest fee
out of his own pocket because he doesn't have any money
from the, from the city.
He doesn't have rental income
from the property that he potentially could have.
He doesn't have the ability
to come up with development plans
or try to imagine the day when he could do something nice
with his property, which he has wanted to do for years.
Attorney Leonard says they can't make those plans.
Neither can my guy, he doesn't.
And he's sitting there wondering
when his money is gonna run out to keep this lawsuit going,
which Attorney Leonard now says it could go on
for like four or five more years, which is ridiculous.
And where's that money gonna come from
to, to keep his family fed.
He's retired now he's 88 years old.
-: Thank you Mr. Bowen.
Any further questions Mr. Bowen?
-: Great. -: Thank you counsel.
-: Thank you. Thank you, your honors.