Leonardo Angiulo: Wicked Bad Storms and Eminent Domain

Monday, March 11, 2013

Leonardo Angiulo, GoLocalWorcester Legal Expert

The recent series of winter storms have battered homes on Plum Island. Local media has shown regular footage of bulldozers and excavators knocking over buildings, which raises the question, “Who is paying for this?” In the past, government entities have seized properties such as these in the name of public safety.

In order for the state of Massachusetts to seize property, it must comply with constitutional and statutory requirements of eminent domain. Fundamentally, this means if the government is going to take real estate, it must do so for a public purpose and fairly compensate the person from whom it was taken.

Of course, when we say the “government” can do something we sometimes lose sight that this means certain groups of people rather than some creature out there in the world. In the case of eminent domain, Massachusetts General Laws c. 79, sec. 2 is the statute defining who can take what. For example, if the land is taken on behalf of the Commonwealth as a whole, then the governor and his council are authorized to act. Similarly, if a taking is by a town, then the selectmen are the appropriate acting body. Under this logic, it is possible that the selectmen of the town of Newbury could make a decision to seize the property on Plum Island as a matter of public good. If they did so, they must explain exactly what good they are effectuating because General Laws c. 79, sec. 1 requires they explain it within any order they vote into existence.

The power to take property can also be exercised through condemnation proceedings in accordance with Chapter 80A of the Massachusetts General Laws. Section one of Chapter 80A permits the same people defined in MGL c. 79, sec. 2 to follow a specific series of steps before grabbing land. The basic parts of a condemnation proceeding include a town adopting an order of intention to take certain property, contacting interested parties by mail with the proposed value of the property they are about to be taken, and beginning appropriate proceedings in the Superior Court for the County in which the property is located.

The case of Town of Swampscott v. Harry Remis & others is an example of what happens when an ocean-side community decides to seize certain property for the benefit of a town. In that case, some unimproved land along the water was taken to create what we would know as a public beach. The court's opinion defines how much the town owed the landowner and affirmed the towns ability to conduct the taking. This, ultimately, means towns can take property, but they have to cut a check to do it.

One question raised by the recent storms on the North Shore is similar to one raised by the areas of New Jersey coastline damaged in Hurricane Sandy: should homes on the shoreline be rebuilt? The practical reality is that whatever explanation you choose, either rising seas because of global warming or the natural effect of water on sand, the shape of coastlines is always changing. The way things are headed more homes will be affected over time, communities will have to take action and taxpayers will be footing the bill.