Home | Massachusetts Eminent Domain

Massachusett's Eminent Domain Laws and Property Rights

PROPERTY RIGHTS IN THE COMMONWEALTH OF MASSACHUSETTS

Massachusetts is one of a handful of states that made no statutory or constitutional changes in response to Kelo v. City of New London, 545 U.S. 469 (2005). Massachusetts public redevelopment projects, where land is taken and sold to private, designated redevelopers, fall under the Massachusetts urban renewal laws, enacted well before Kelo. (G.L. c. 121A, 121B). Chapter 121B grants urban renewal agencies the authority to take property by eminent domain whenever it determines the taking is necessary to effectuate the goals of urban renewal, which include the elimination of “decadent, substandard or blighted” areas and the promotion of the “sound growth of the community.” G. L. c. 121B, § 45; see also Marchese v. Boston Redevelopment Auth., 483 Mass. 149 (2019). Chapter 121B requires the type of comprehensive plan and exhaustive deliberative process found compelling by the Kelo majority, but with the significant difference that Massachusetts urban renewal is predicated on findings of blight, substandard housing, or decadence. (G.L. c. 121B, § 48).

Meet OCA's Massachusetts Attorney

James D. Masterman

James D. Masterman is a shareholder with the Boston office of Greenberg Traurig, LLP. Mr. Masterman is a trial lawyer with a broad range of experience in eminent domain and real estate valuation litigation, including tax proceedings and lease arbitrations, and in the litigation of land use and property rights issues. His representation of commercial, industrial and residential property owners and developers requires his appearance in U.S. District Court, U.S. Bankruptcy Court, and every state and administrative court of Massachusetts and throughout New England.

A SUMMARY OF MASSACHUSETTS’ EMINENT DOMAIN LAWS

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who Can Exercise Eminent Domain Laws?

    The power of eminent domain, as an inherent sovereign power, may be exercised by the Commonwealth and all its offices, agencies or authorities to which the power has been delegated by statute. These include the Massachusetts Department of Transportation and departments within the Executive Offices of Administration and Finance and of Environmental Affairs. Public authorities such as the Turnpike Authority and the Massachusetts Bay Transportation Authority also have the power of eminent domain. The legislature has also granted the power of eminent domain to housing authorities and urban renewal authorities, counties, cities and towns. (M. G. L. c. 121B). The power of eminent domain may also be delegated to private corporations deemed to be serving a public purpose, such as a public utility.

  • What Are the Legal Requirements for Exercising the Power?

    Condemnation in Massachusetts is governed by Massachusetts General Laws chapter 79. The taking process starts with the designated taking authority, acting by and through a board of officers duly authorized to act (M. G. L. c. 79, § 2), voting to adopt an Order of Taking (M. G. L. c. 79, § 1) which must describe the property, state the interest taken (e.g., fee: all or a part; easement: temporary or permanent) and the purpose for which the taking is made. Within thirty days of the vote, the Order must be recorded (M. G. L. c. 79, § 3) or filed for registration (M. G. L. c. 79, § 4) in the county Registry of Deeds in which the property to be condemned lies. Recording the Order is the act of taking; title vests in the taking authority upon recording. Failure to record the Order timely renders the vote to take void. Notice that the taking has been made (i.e., post recording) is required of all taking authorities (M. G. L. c. 79, § 7C).

    The amount of the award is to be offered and tendered to all parties having an interest in the property taken within sixty days of recording (M. G. L. c. 79, § 8A). There is no deposit into court. The owner may either accept the money awarded as full and final just compensation or as an award pro tanto. An owner who accepts the award pro tanto has three years from the date when title vests in the taking authority, not from the date of the vote or the date of the Order itself (M. G. L. c. 79, § 16), to file a lawsuit, termed a petition for assessment of damages (M. G. L. c. 79, § 14) for a jury to determine the fair market value of the property taken.

  • What Limitations or Defenses Exist?

    The only limits on the power of eminent domain are constitutional and require that the property be used for a public purpose and that the owner be paid just compensation. Benevolent and Protective Order of Elks, Lodge No. 65 v. Planning Bd. of Lawrence, 403 Mass. 531, 539 (1988); Massachusetts Constitution, Declaration of Rights, Article 10. An owner may challenge the bona fides of a taking in the same proceeding to determine just compensation or in a separate action. The grounds recognized by Massachusetts courts to set aside a taking are either where there has been a finding that the taking was not made for a public purpose or if the taking was made in bad faith. Pheasant Ridge Associates Ltd. Partnership v. Burlington, 399 Mass. 771 (1987) (as to bad faith).

  • What Constitutes a Public Purpose?

    Taking authorities generally have wide discretion to determine what land is essential for a public improvement. Courts, however, retain the power of judicial review to determine whether there is a legitimate public purpose for the taking. Massachusetts law grants urban renewal agencies the authority to take property by eminent domain whenever it determines the taking is necessary to effectuate the goals of urban renewal, which include the elimination of “decadent, substandard or blighted” areas and the promotion of the “sound growth of the community.” (G. L. c. 121B, § 45); see also Marchese v. Boston Redevelopment Auth., 483 Mass. 149 (2019); Mahajan v. Dept. of Envtl. Protec., 464 Mass. 604, 606 (2013).

  • How is Just Compensation Determined?

    Damages are measured by the fair market value of the property at the time of the taking. The date of taking is the date the order of taking is recorded in the registry of deeds, not the date of the vote to take. (M. G. L. c. 79, § 12); Kinney v. Commonwealth, 332 Mass. 568, 572 (1955).

  • How Is Fair Market Value Defined?

    The fair market value of the property taken is determined in light of the highest and best use to which the property could reasonably be put. Douglas Envtl. Assocs. v. Dep’t of Envtl. Prot., 429 Mass. 71, 75 (1999). Highest and best use is defined by appraisers to be that reasonable and probable use that supports the highest value of that use, from among reasonably probable and legal alternative uses, found to be physically possible, appropriately supported, and financially feasible, that results in the highest value.

  • What About Recovering Damages to Remaining Property?

    If only a portion of the property is taken, the owner is entitled to the value of the property taken and to any diminution in value to the property which remains. (M. G. L. c. 79, § 12). Severance damages are commonly measured by the difference between the fair market value of the property before the taking and the fair market value of the remainder after the taking. Rodman v. Commonwealth, 89 Mass. App. Ct. 500, 504 (2014).

  • Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

    Attorneys’ fees incurred by an owner in pursuing just compensation for the taking of his property are not recoverable against the taking authority. Similarly, fees and expenses for expert witnesses, such as appraisers and engineers, are not recoverable against the taking authority. The only reimbursement that the owner is entitled to pursue against the taking authority are for filing fees associated with instituting the action to challenge the damage award, sheriffs’ fees for service of a summons or subpoena, and costs incurred for trial exhibit preparation such as photographs, certified copies of deeds and the like. (M. G. L. c. 79, § 38). Such costs are reimbursable only if an award of damages has been made and the damages are increased above the pro tanto. A motion to allow costs is filed post-trial.

  • Can the Government Take Possession of the Landowner’s Property Before Final Compensation is Paid?

    Massachusetts is what is referred to as a quick-take state. The taking authority may take possession of the condemned property prior to a final adjudication of damages.

Massachusetts

Greenberg Traurig
One International Place
Boston, MA 02110
Tel: (617) 310-6284 | Fax: (617) 310-8408
mastermanj@gtlaw.com | www.gtlaw.com

James D. Masterman’s advice is sought by multi-property clients on a national basis on all aspects of eminent domain, and by developers seeking public assistance with land assemblage for large-scale, public-private partnership projects. A trial lawyer with substantial experience representing property owners in eminent domain, land use and real estate valuation litigation, including tax proceedings and lease arbitrations, his clients include commercial, industrial and residential property owners and developers throughout Massachusetts and New England. Jim served as Chair of the American Bar Association’s Committee of Condemnation and Land Use Litigation and is a frequent lecturer and writer on the topic. Jim is a former Chair of the Condemnation, Zoning and Land Use Committee of the American Bar Association’s Section of Litigation (1995-1998) and has served as a Council Member for the Boston Bar Association (2007-2010).  He is also a former law clerk to the Honorable John J. McNaught of the US District Court and previously served as an Assistant District Attorney.

Significant Eminent Domain and Property Rights Cases

Reported Decisions

  • Central Steel v. Somerville Redevelopment Authority, 447 Mass. 337 (2006) (industrial)
  • Boston Water & Sewer Commission v. Commonwealth, 64 Mass. App. Ct. 611 (2005) (public land)
  • Liberty Square Dev. Trust v. Worcester, 441 Mass. 605 (2004) (warehouse)
  • Portland Natural Gas Transmission System v. 19.2 Acres of Land, 318 F. 3d 279 (1st cir. 2003) (industrial land)

Massachusetts & New England Eminent Domain Cases

  • Tara Investment Holdings v. Massachusetts Port Authority (parking facility)
  • Henri Jacques, LLC v. Boston Redevelopment Authority (office building)
  • Extra Space Storage v. Commonwealth of Massachusetts (self-storage)
  • One Pond Street LLC (Grossman Companies) v. Commonwealth of Massachusetts (land for office)
  • Terraces Inc. v. Town of Ashland MA (residential land)
  • Beverly Commerce Park, Inc. v. Board of Assessors of the City of Beverly MA (tax proceeding)
  • State of New Hampshire v. Mobil Oil Company, Hillsborough County NH (gas station)
  • State of Connecticut v. Hartford New Park LP, Hartford County CT (office land)

National Eminent Domain Cases

  • Flood Control District of Coconino County v. Goldenberg, Trustee, et al., Coconino County (Flagstaff) AZ (residential land)
  • State of California (CalTrans) v. Star Scrap Metal Company, et al., Los Angeles County CA (scrap metal recycling facility)
  • United States (GSA) v. SYG Venture (Duty Free Americas), San Diego County CA (retail and parking)
  • Regional Transportation District v. Leal, et al., Denver County CO (lender rights)
  • Sabail Trail Transmission v. Osceola Crossings (Tupperware), Osceola County FLA (pipeline)
  • City of Brooklyn Park v. Brooklyn Park Showroom, et al., Hennepin County MN (office building land)
  • State of Texas v. Inland Western Southlake LP, Tarrant County TX (retail land and building)
  • State of Texas v. Inland Western Grapevine LP, Tarrant County TX (retail land)
  • Interstate Supply Co. v. Orion Refining Corporation, U.S. Bankruptcy Court (D. Del) (industrial)

Speaking Engagements (Most Recent)

  • ALI Eminent Domain and Land Valuation Litigation, ALI Eminent Domain and Land Valuation Litigation, 2018
  • Effective Case Planning: Getting Your Case Off to a Good Start, ALI Eminent Domain and Land Valuation Litigation 2017
  • Negotiation: When to Mediate Which Cases and How to Demonstrate Risk Without Giving Away the Farm, ALI Eminent Domain and Land Valuation Litigation 2017
  • Property & Portfolio-Level Due Diligence for Acquisitions: The Need to Know & Do, 13th Annual Winter Forum On Real Estate Opportunity & Private Fund Investing
  • Fundamentals of Real Estate: Commercial Real Estate Appraisals, Real Estate Finance Association (REFA)
  • Anatomy of an Appraisal Report: How to Prepare and Present an Eminent Domain Case,
  • American Law Institute: Condemnation 101, “Anatomy of An Appraisal Report,” February 5, 2015, San Francisco, CA.

Published Articles and Papers

  • Co-Author,”Rearranging the Deck Chairs when the Ship is Going Down: Protecting Your Condemnation Record for Appeal,” The Practical Real Estate Lawyer, May 2015.
  • Co-Author, “Damages to Real Property,” Real Estate Valuation & Eminent Domain Litigation, MCLE, 2012
  • Author, “Eminent Domain and the Commercial Lease,” Lexology, March 21, 2012
  • Author, “Landlord and Tenant in Eminent Domain,” ALI-ABA Course of Study Written Materials, January 26, 2012
  • Co-Author, “Deposition Of The Appraiser In Takings Cases,” The Practical Litigator, November 2010
  • Author, “Preparation of the Appraiser as an Expert Witness,” Real Estate Valuation & Eminent Domain Litigation, MCLE, 2009

Professional Affiliations

  • Board Member, Owners’ Counsel of America (2013-2016)
  • Member, Federal Practice Task Force
  • Affiliate Member, Appraisal Institute
  • Chair, American Bar Association, Section of Litigation, Committee on Condemnation, Zoning and Land Use Litigation (1995-1998)
  • Co-Chair, Unpublished References Committee
  • Council Member, Boston Bar Association (2007-2010)
  • Advisor, Boston Mayor Thomas M. Menino’s Advisory Panel on Housing (2004)
  • Elected Town Meeting Member, Town of Needham, Massachusetts
  • Member, Town of Needham Finance Committee (1999-2002)

Education

  • Cornell University, B.A., 1976
  • Boston University School of Law, J.D.,1979

Bar Admissions and Memberships

  • Commonwealth of Massachusetts
  • US District Court
  • US Tax Court
  • First Circuit Court of Appeals
  • US Supreme Court
  • American Bar Association
  • Massachusetts Bar Association
  • Boston Bar Association

Honors

  • AV® Preeminent™ Peer Review Rated by Martindale-Hubbell®
  • The Best Lawyers in America®, Recognized for Eminent Domain and Condemnation Law, 2007-2014
  • Boston Lawyer of the Year, as recognized by Best Lawyers in America® for Eminent Domain and Condemnation Law, 2013
  • Massachusetts Super Lawyers, Listed 2005-2014

James D. Masterman’s advice is sought by multi-property clients on a national basis on all aspects of eminent domain, and by developers seeking public assistance with land assemblage for large-scale, public-private partnership projects. A trial lawyer with substantial experience representing property owners in eminent domain, land use and real estate valuation litigation, including tax proceedings and lease arbitrations, his clients include commercial, industrial and residential property owners and developers throughout Massachusetts and New England. Jim served as Chair of the American Bar Association’s Committee of Condemnation and Land Use Litigation and is a frequent lecturer and writer on the topic. Jim is a former Chair of the Condemnation, Zoning and Land Use Committee of the American Bar Association’s Section of Litigation (1995-1998) and has served as a Council Member for the Boston Bar Association (2007-2010).  He is also a former law clerk to the Honorable John J. McNaught of the US District Court and previously served as an Assistant District Attorney.

Significant Eminent Domain and Property Rights Cases

Reported Decisions

  • Central Steel v. Somerville Redevelopment Authority, 447 Mass. 337 (2006) (industrial)
  • Boston Water & Sewer Commission v. Commonwealth, 64 Mass. App. Ct. 611 (2005) (public land)
  • Liberty Square Dev. Trust v. Worcester, 441 Mass. 605 (2004) (warehouse)
  • Portland Natural Gas Transmission System v. 19.2 Acres of Land, 318 F. 3d 279 (1st cir. 2003) (industrial land)

Massachusetts & New England Eminent Domain Cases

  • Tara Investment Holdings v. Massachusetts Port Authority (parking facility)
  • Henri Jacques, LLC v. Boston Redevelopment Authority (office building)
  • Extra Space Storage v. Commonwealth of Massachusetts (self-storage)
  • One Pond Street LLC (Grossman Companies) v. Commonwealth of Massachusetts (land for office)
  • Terraces Inc. v. Town of Ashland MA (residential land)
  • Beverly Commerce Park, Inc. v. Board of Assessors of the City of Beverly MA (tax proceeding)
  • State of New Hampshire v. Mobil Oil Company, Hillsborough County NH (gas station)
  • State of Connecticut v. Hartford New Park LP, Hartford County CT (office land)

National Eminent Domain Cases

  • Flood Control District of Coconino County v. Goldenberg, Trustee, et al., Coconino County (Flagstaff) AZ (residential land)
  • State of California (CalTrans) v. Star Scrap Metal Company, et al., Los Angeles County CA (scrap metal recycling facility)
  • United States (GSA) v. SYG Venture (Duty Free Americas), San Diego County CA (retail and parking)
  • Regional Transportation District v. Leal, et al., Denver County CO (lender rights)
  • Sabail Trail Transmission v. Osceola Crossings (Tupperware), Osceola County FLA (pipeline)
  • City of Brooklyn Park v. Brooklyn Park Showroom, et al., Hennepin County MN (office building land)
  • State of Texas v. Inland Western Southlake LP, Tarrant County TX (retail land and building)
  • State of Texas v. Inland Western Grapevine LP, Tarrant County TX (retail land)
  • Interstate Supply Co. v. Orion Refining Corporation, U.S. Bankruptcy Court (D. Del) (industrial)

Speaking Engagements (Most Recent)

  • ALI Eminent Domain and Land Valuation Litigation, ALI Eminent Domain and Land Valuation Litigation, 2018
  • Effective Case Planning: Getting Your Case Off to a Good Start, ALI Eminent Domain and Land Valuation Litigation 2017
  • Negotiation: When to Mediate Which Cases and How to Demonstrate Risk Without Giving Away the Farm, ALI Eminent Domain and Land Valuation Litigation 2017
  • Property & Portfolio-Level Due Diligence for Acquisitions: The Need to Know & Do, 13th Annual Winter Forum On Real Estate Opportunity & Private Fund Investing
  • Fundamentals of Real Estate: Commercial Real Estate Appraisals, Real Estate Finance Association (REFA)
  • Anatomy of an Appraisal Report: How to Prepare and Present an Eminent Domain Case,
  • American Law Institute: Condemnation 101, “Anatomy of An Appraisal Report,” February 5, 2015, San Francisco, CA.

Published Articles and Papers

  • Co-Author,”Rearranging the Deck Chairs when the Ship is Going Down: Protecting Your Condemnation Record for Appeal,” The Practical Real Estate Lawyer, May 2015.
  • Co-Author, “Damages to Real Property,” Real Estate Valuation & Eminent Domain Litigation, MCLE, 2012
  • Author, “Eminent Domain and the Commercial Lease,” Lexology, March 21, 2012
  • Author, “Landlord and Tenant in Eminent Domain,” ALI-ABA Course of Study Written Materials, January 26, 2012
  • Co-Author, “Deposition Of The Appraiser In Takings Cases,” The Practical Litigator, November 2010
  • Author, “Preparation of the Appraiser as an Expert Witness,” Real Estate Valuation & Eminent Domain Litigation, MCLE, 2009

Professional Affiliations

  • Board Member, Owners’ Counsel of America (2013-2016)
  • Member, Federal Practice Task Force
  • Affiliate Member, Appraisal Institute
  • Chair, American Bar Association, Section of Litigation, Committee on Condemnation, Zoning and Land Use Litigation (1995-1998)
  • Co-Chair, Unpublished References Committee
  • Council Member, Boston Bar Association (2007-2010)
  • Advisor, Boston Mayor Thomas M. Menino’s Advisory Panel on Housing (2004)
  • Elected Town Meeting Member, Town of Needham, Massachusetts
  • Member, Town of Needham Finance Committee (1999-2002)
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