Section Review

SJC ruling in Chandler v. County Commissioners of Nantucket beaches land taking attempt for use other than roadway

Howard BlatchfordHoward P. Blatchford, Jr. is a partner in the litigation group of the Boston law firm Jager Smith P.C. Along with Andrew J. Ley of that firm’s real estate group, Blatchford represented the appellant landowners in Chandler in their appeal to the Supreme Judicial Court.

In Chandler v. County Commissioners of Nantucket, 437 Mass. 430 (2002), the Supreme Judicial Court ruled that a local government may not invoke its power to take private property by eminent domain under G. L. c. 82, 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.

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, the commissioners 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.

The events leading to the SJC's decision began in 1998 when 16 citizens of Nantucket 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 14, 40-foot wide tracts of land that were approximately 200 feet apart from each other. Three of the tracts ran parallel to the shoreline. Two of these were entirely upon the beach and did not even connect with roadways upland of a coastal bank. The remaining 12 ran perpendicular to the ocean and terminated in the surf. Approximately one half to one-third of the area of these tracts was laid out on sand seaward of the coastal bank and was subject to the ebb and flow of the tide.

The landowners commenced a civil action in the nature of certiorari to challenge the validity of the takings. The landowners asserted the true purpose of the takings was to convert private property into a public beach and pathways to the shore. The landowners 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. That court ruled 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 should be used for the purposes for which it was taken."

The landowners appealed the Superior Court's decision, and the Supreme Judicial Court granted their application for direct appellate review. The SJC reversed the judgment of the Superior Court and vacated the commissioners' takings. 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 the question "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 Nantucket takings were invalid as exceeding the legislative grant of authority to create highways, the SJC undertook a statutory interpretation of the word "highway" by means of textual analysis and a review of the legislative history of Chapter 82.

Because the extent of the commissioners' authority to take land by eminent domain was limited to those situations where they were laying out a "highway," a term not defined by Chapter 82, the SJC first examined the context in which the word highway appeared in the statute. The court noted that the predicate for the exercise of the commissioners' authority was "the common convenience and necessity" to create and maintain ways "reasonably safe and convenient for travel." This and other references to the word travel, the court concluded, constituted evidence of legislative intent that Chapter 82's grant of power to take by eminent domain was limited to the creation and maintenance of actual roadways that would be used for public travel. As further evidence of legislative intent, the SJC pointed to numerous other sections of Chapter 82 that referred to the construction of roadways. The result of this textual analysis was the SJC's conclusion that "read as a whole, it is plain that [Chapter] 82 authorizes takings for a new highway only where the construction or physical improvement of a highway necessary for travel is contemplated."

The SJC did not rely upon textual analysis as the sole means of divining legislative intent. The court also engaged in a review of the legislative history of the statute to demonstrate that the grant of authority under Chapter 82 did not extend to the Nantucket takings. The court began by examining the original enactment as published in the Colonial Ordinances in 1639. That statute recited that "To the end there may be convenient High-Wayes for Travellers…all Country Highwayes shall be such as may be most easie and safe for Travellers." The court further noted the Legislature's concern with safe travel over actual constructed roadways by reference to other sections that required wider highways "where the Soyle is wet, myrie or very rocky," as well as provisions for the removal of incumbrances that might impede travel. The SJC then traced the development of this statute from the Colonial Ordinances through the Province Laws of 1693 and, after various recodifications and amendments, into its present formulation in the General Laws. Throughout this history, the court observed, "[t]he legislative history is devoid of any concern with, or even consideration of, the commissioners' use of the statute to provide for public access to a beach, with no intent to construct a roadway."

The SJC's decision to invalidate the takings 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 rein 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 G. L. c. 40, ß 8C and G. L. c. 34, ß 25. Those statutes 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.

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