SJC Supports NAIOP Position in Sudbury v. MBTA

This morning, in a landmark win for the commercial real estate industry, the Supreme Judicial Court (SJC) of Massachusetts unanimously affirmed the Land Court’s dismissal in Sudbury v. MBTA , holding that the prior public use doctrine is inapplicable when land owned by a public entity is conveyed to a private entity for a different use.

In September of 2019, NAIOP filed an amicus brief with the Real Estate Bar Association urging the SJC to uphold the Land Court’s determination that the state’s “prior public use doctrine” did not apply in this case. Such a requirement would have a significant impact on the ability of any developer to acquire property or even property rights (like an easement) from a public entity (whether a municipality or state agency), resulting in a long, unpredictable and expensive process requiring legislative approval for any change of use in a public property deal.

In its decision, the SJC expressly pointed to NAIOP’s amicus brief, which cited several recent housing projects creating hundreds of units of affordable housing and additional public benefits. Today’s decision allows these and other critical public-private partnerships to continue, creating massive community benefits across the state.

NAIOP is pleased with the SJC’s ruling, and grateful to Jessica Kelly, Daniel C. Johnson, and Ron Ruth from NAIOP Gavel member firm Sherin & Lodgen, and to members of the NAIOP Amicus Brief Advisory Committee, for their work on behalf of the commercial real estate industry on this matter. 

Climate Change Preparedness: Commonwealth’s Investment an Important Step in Collaborative Process

DB_testimonyAt Governor Patrick’s press conference today at the New England Aquarium, he announced  Climate Change Preparedness Initiatives funded by a $50 million state investment. Following Mayor Marty Walsh and Secretary Rick Sullivan, I spoke at the event representing the business community.

Climate change can have significant impacts affecting the overall economy; directly, by damaging structures, and indirectly, by compromising transportation systems, communications, and utilities.  There is no question that an increasing number of extreme weather events combined with future sea level rise require local and state agencies, building owners, lenders, insurance underwriters, and tenants to consider how to prepare for and respond to such events.

The business community believes that preparing for storm related events should be a shared responsibility between the public and private sectors. A primary role for city and state governments should be to ensure the continuity and protection of public infrastructure and public safety.  Stakeholders should be at the table with state and local decision makers early on in the process to prioritize short-term and long-term public and private responses. The business community, and the community at large, need to have a clear understanding of the government’s responsibilities for infrastructure and critical services.

Especially with New York City’s experience with Hurricane Sandy, we feel that Best Management Practices developed in other cities should be shared among public and private sector stakeholders, and their applicability to the Commonwealth should be carefully considered.

Finally, both costs and risks need to be evaluated when the public and private sectors consider climate change-related investments and improvement. With scarce resources, there will need to be a balance of adequate planning and a risk-based, cost-benefit analysis in order that funds are prudently expended.

Along with other business groups, we look forward to a true collaboration with state and local governments to safeguard all our valued resources.