Joseph Zoppo Discusses Eminent Domain in Boston, Massachusetts

Eminent domain is the legal authority governments have to seize property from private owners by arguing it’s in the public’s best interest to do so. This government action is called a “Taking”. This government right, however, predates the constitution and is an elemental, intrinsic right of the sovereign, which includes federal, state and local government. The Fifth Amendment offers some protection to property owners, requiring governments to offer “just compensation” for the property and that the property be used for a “public purpose”. Just compensation is interpreted as fair market value paid to the property owner and can be based on different valuation methods.

The government can only take property by eminent domain for a legitimate public purpose like building a school, expanding a highway or creating a community park or more recently, for urban renewal. The government rationale for a taking for urban renewal, which can now include the government’s transfer of the property to another private party, is that it will help stimulate the local economy and or improve living conditions in the area of the property (or beyond). Prominent Boston attorney Joseph Zoppo provides a brief overview of eminent domain.

Eminent Domain in Massachusetts

Eminent domain in Massachusetts is unrestricted unlike many other states, 44 of whom have instituted some type of limits on government authority to take land for a “public purpose” for example where the property taken winds up in the hands of another private party by way of the taking authority, as discussed briefly below relative to the Kelo case. Property owners can attempt to stop the process or attack it after the taking by proving that the government’s proposed use does not meet the requirements for public purpose or that the taking failed to comply with legal procedural requirements, violated constitutional rights of the owner and on other theories. Much deference is given the taking authority so the cases are not easy but where there is a basis it is possible to attack and stop or reverse the taking in addition to collecting damages for the taking beyond arguing the damages offered by the taking authority are insufficient.

Last year, the Brockton, Massachusetts Redevelopment Authority took a large building in the City of Brockton by eminent domain and the private party to whom the BRA conveyed the property (simultaneously with its taking) notified the owner of the building with tenants including a furniture store, other businesses and a mosque, that they would have to vacate the building after two decades at that location. Prior to the taking the government argued that although the property owner was redeveloping the property under an Approval from the City, its efforts did not satisfy the government. The BRA made $1.02 million from its conveyance to the private party available to the owner for the building, which it argued was a price above market value. The purpose of the taking the BRA said was to redevelop the property into housing and some commercial space in pursuant to an Urban Revitalization Plan which was also what the owner was doing. The government planned to accomplish this objective through another private owner by taking the property from its then current owner and conveying it to another private owner it preferred to do the redevelopment. Takings to accomplish the transfer of property from one private owner to another private owner, rather than the government itself, for the purpose of urban revitalization were not legal until the Kelo case in 2005.

In 2005, the United States Supreme Court narrowly ruled in a 5-4 decision in Kelo v. City of New London, Conn., 545 U.S. 469 (2005) that a local government could legally use eminent domain powers to seize private property for transfer to another private party to be used by that party for development purposes which development the government entity felt would benefit the public at large even if the property was not used directly by the public. In response, 44 states strengthened private property rights and limited the use of eminent domain in some way. Massachusetts was one of six states that didn’t act. Therefore, property owners in Massachusetts are exposed the risk of losing their properties in a manner similar to those in the Kelo case.

The eminent domain process in Massachusetts can begin with the adoption of an Urban Revitalization Plan conforming to statutory requirements and adopted by a government entity with the statutory authority to take for a public purpose. That process can begin with a public hearing to discuss the public interest project and engage with and receive feedback from community members. At some point following the adoption of the Plan a vote to adopt an Order of Taking for a particular property within the plan area is conducted by a board authorized to act on behalf of the taking authority. Notice of Intent to Take is given to the current owner and must be given at least 30 days prior to the recordation of the Order of Taking which recordation accomplishes the transfer of ownership from the current owner to the government. Within 30 days of the adoption of the Order of Taking the government must record the Order to accomplish the transfer of the ownership in the property. Immediately after the taking the taking authority must give notice to all parties with an interest in the property. Within 60 days of the recording the taking authority must offer every person entitled to damages the amount determined to be “just compensation” which may be accepted in total or partial payment of the just compensation. That amount is based on an appraisal by the taking authority. The prior owner can challenge in Court the amount of just compensation together with a challenge to the taking or challenge the amount on its own.

According to Attorney Joseph Zoppo, while you do not hear and read about eminent domain every day, governments use it frequently to build public places or to attempt to stimulate the local economy in less direct ways. In Massachusetts, where protection from eminent domain is not strong as in other areas, private property owners have more to be concerned about.