Davis Malm Secures Reversal of Eminent Domain Decision in Massachusetts Supreme Judicial Court

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Paul L. Feldman

BOSTON – Davis Malm shareholders Paul L. Feldman and Shawn M. McCormack achieved a significant victory for their client, Smiley First, LLC (Smiley), in the Massachusetts Supreme Judicial Court (SJC).

In Smiley First, LLC v. Department of Transportation, the state’s highest court analyzed whether the government could repurpose a railroad easement leftover from the Big Dig for use as a new testing facility for MBTA subway cars. The SJC ruled in favor of Smiley, holding that the new use exceeded the scope of the old easement, and that the government is required to compensate Smiley for taking private property for public use.

Back in 1991, the Department of Public Works (“DPW”) exercised the power of eminent domain to take an easement over a large tract of land in South Boston for purposes of constructing the South Boston Haul Road in connection with the Big Dig. The Haul Road would displace some railroad track in the area, and easements were also taken to relocate railroad tracks. Smiley’s property was subject to one of those easements.

In 2017, the Massachusetts Bay Transportation Authority (MBTA) began planning the construction of a test track for Red Line cars and a 6,000-square-foot building for newly purchased subway cars on a portion of Smiley’s land subject to the 1991 taking. MassDOT—on behalf of the MBTA—claimed it had the right to do so under the 1991 taking, and refused to pay Smiley any compensation. Smiley disagreed, and represented by Mr. Feldman and Mr. McCormack, responded with litigation in Superior Court where Judge Paul D. Wilson entered summary judgment in favor of MassDOT. Smiley appealed and the SJC transferred the case from the Appeals Court on its own motion where they reversed it the Superior Court’s judgment, ruling that the new use proposed by MassDOT and the MBTA exceeded the scope of the government’s rights under the 1991 taking, that summary judgment for MassDOT must be reversed, and that Smiley was entitled to just compensation for the new taking.

In so ruling, the SJC clarified several important aspects of easement law in general, and eminent domain law in particular. In an article published by Massachusetts Lawyers Weekly, Mr. Feldman said, “The decision makes clear that rules of interpretation for negotiated easements between private parties apply equally to easements taken by eminent domain, other than looking at the intent of the parties, which is not a relevant consideration when property is taken against a landowner’s will.”

Mr. Feldman’s real estate work involves acquisitions, leasing, permitting and financing. He represents several active and substantial real estate developers, handling transactions all over the country. His environmental practice focuses on contamination matters, wetlands permitting, waterways licenses and MEPA. Mr. Feldman has represented Fortune 100 companies in connection with several Federal Superfund sites and many smaller businesses with Chapter 21E matters. His work involves governmental enforcement actions, regulatory compliance matters and cost recovery litigation. Mr. Feldman is also a litigator, primarily covering contract disputes and insurance coverage.

Mr. McCormack is a former Land Court clerk whose practice focuses on zoning and land use litigation. He regularly litigates zoning appeals, appears before local permitting authorities, and is an active member of the Real Estate Bar Association’s Land Use and Litigation Committees.

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