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Jager Smith Success Continues to Shape Real Property Law

In Chandler v. County Commissioners of Nantucket, the Supreme Judicial Court held that a local government may not invoke its power to take private property by eminent domain under Chapter 82 of the Massachusetts General Laws, a statute that permits such takings "necessary for the purpose of laying out, altering, or relocating a highway," when it has no intention of constructing actual roadways for public travel. In doing so, the SJC handed a significant victory to Jager Smith’s Howard P. Blatchford, Jr. and Andrew J. Ley.

Chandler arose from an attempt by the Nantucket County Commissioners to take by eminent domain nearly three acres of privately owned coastal beach and shorefront property on the southern coast of Nantucket. Although the commissioners purported to act pursuant to a statutory grant of authority to lay out highways, they disavowed any intention to build any highways or other roads. In fact, the takings had been made solely to create a public beach and establish access rights to the ocean over the landowners' land.

In 1998, 16 Nantucket citizens submitted a petition to the commissioners requesting that pursuant to Chapter 82 the commissioners acquire by eminent domain the fee simple title to various tracts of land in the Surfside area of Nantucket. After two public hearings, the commissioners voted to take the land for the asserted reason that "common convenience and necessity" required the takings for the laying out of new highways. The takings consisted of fourteen 40-foot wide tracts of land that were approximately 200 feet apart from each other.

The landowners commenced a civil action to challenge the validity of the takings. They asserted the true purpose of the takings was to convert private property into a public beach and pathways to the shore, and maintained this was a purpose not authorized by the statutory grant of authority to lay out highways under Chapter 82. The landowners further asserted there was a lack of substantial evidence to satisfy the statutory predicate that these proposed highways were being laid out to satisfy the "common convenience and necessity."

The Superior Court dismissed the landowners' challenge, ruling that even though the commissioners had no intention of paving or improving the tracts for purposes of travel, that fact would not preclude the commissioners from lawfully exercising their takings powers by invoking Chapter 82. Noting Nantucket's "long tradition of providing public ways to the water," the Superior Court ruled that the takings were valid because "the Commissioners truly intended the land be used for the purposes for which it was taken."

The landowners appealed the Superior Court's decision, and upon hearing oral argument, the SJC reversed the judgment of the Superior Court and vacated the takings.

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The SJC framed the issue as whether land could be taken under the authority of Chapter 82 "in effect to acquire beach areas for public use and to prevent the owners of the land contiguous to that beach from inhibiting the public from traversing their land, where the taking authority has expressly disavowed any intention of building a highway." The SJC began its analysis by asking "whether the taking of land to secure for public use multiple pathways to the ocean at points only 200 feet apart, where there is no intent to construct roadways on the land taken, is consistent with the intent of the statute." In reaching its conclusion that the takings were invalid, the SJC undertook a statutory interpretation of the word "highway" by means of textual analysis and a review of the legislative history of the statute dating back to 1639, to demonstrate that the grant of authority under Chapter 82 did not extend to the Nantucket takings.

The SJC's decision in Chandler has significance beyond the restoration of the Nantucket landowners' property rights. Had the court countenanced the actions of the commissioners in using the highway takings statute to create a public beach and means of access to the shore, other counties and municipalities might have seen themselves as having free reign to take private property under the guise of laying out "highways" for any reason. That, in turn, might have resulted in the wholesale circumvention of the more onerous requirements of other statutes, such as Section 8C of Chapter 40 and Section 25 of Chapter 34, which authorize the taking of private property for conservation, open space or passive recreation purposes, but only after more significant public, legislative and/or administrative oversight involving town meetings, the Department of Environmental Management and local conservation commissions.