The following article, written by Jon Chesto, was first published in the October 2 online edition of The Boston Globe
At first glance, it might seem like a simple courtroom showdown between the MBTA and the Town of Sudbury over an underground power line.
But to the state’s major commercial real estate trade group, the fight that played out at the Supreme Judicial Court on Tuesday is about much more.
NAIOP Massachusetts isn’t a party to the case. But it did weigh in — on the side of the Massachusetts Bay Transportation Authority and utility company Eversource — through a friend-of-the-court brief.
The reason? Should the state’s highest court side with the town, NAOIP worries that transfers of publicly owned properties across the state could grind to a halt.
To get this far in its appeal, the town homed in on the state’s “prior public use doctrine” — a common-law understanding that land already devoted to one public use can’t be changed to a different one without state legislation. A Land Court judge ruled in 2018 that the doctrine didn’t apply in the Sudbury case, because the land would be leased for a private use. The town appealed, and the SJC decided to take up the issue.
George Pucci, a lawyer for Sudbury, argued Tuesday that this is an unusual case, one that would not open the floodgates. He noted that much of the right-of-way had once been acquired by eminent domain for transportation purposes.
But the potential broader impact was on the minds of the justices, as their line of questioning made evident.
NAIOP got involved after the SJC put out a call for input in May. Of particular concern to the trade group: The judges said they wanted to review whether the public-use doctrine should be in effect for transfers of property that would lead to private uses.
That request didn’t come out of left field. Pucci, in his initial appeals brief, argued it wouldn’t make sense to prohibit the transfer to an inconsistent public use while allowing the sale for an inconsistent private use. This, he wrote, would defeat the purpose of the doctrine: to protect public land from being converted to a different use without legislative approval.
Words like those can strike fear in the heart of any developer. Tamara Small, NAIOP’s chief executive, says a mandatory trip to the Legislature would open up a whole new layer of uncertainty and expense for public-private partnerships. Begging on Beacon Hill would bog down the development process, the mere prospect preventing many deals from happening in the first place.
In its brief, NAIOP offered a smattering of examples to emphasize some of these partnerships’ public benefits: an apartment complex in Chinatown with more than two dozen affordable units, clean energy from solar panels that dot state land along the Massachusetts Turnpike and other highways, the pending Polar Park stadium that will be built on city-owned property for the soon-to-be Worcester Red Sox.
What about Eversource? What public benefits would the electric utility offer with its deal? The company says its 9-mile Sudbury-to-Hudson line, mostly in a rail corridor, would bring nearly $9.4 million in lease payments to the T over 20 years. The line would help improve grid reliability in Greater Boston, with a side benefit of allowing a rail trail to be built along the stretch.
To the Sudbury town officials who authorized the litigation, these benefits don’t seem worth the adverse environmental impacts, such as damage to wetlands and wildlife habitats along the corridor.
Jessica Gray Kelly, NAIOP’s lawyer, says her client is agnostic on the fate of that project. But the association’s members do worry that the effects could ripple far and wide if the court decides legislative approval is needed for any change of use in a public property deal, not just for those in which control would be transferred to another public agency.
It would be a new world for real estate development in the state. Kelly demurs when asked how she thinks the court will react. But NAIOP’s insertion into this seemingly local fight shows the trade group is not taking any chances.
You can find NAIOP’s Amicus Brief and more information about the case by clicking here.