NEW BEDFORD — The city wants more money for land the state took for the South Coast Rail, but some state legislators wonder if the administration’s approach to pressing the argument — by threatening to sue — jeopardizes good relations with the agency running the project, and possibly even the project itself.
One of the state’s most experienced land-takings lawyers, however, said it looks like the city is correct on the law, stands to get a better price for the land, and he dismisses any concern about the future of South Coast Rail or New Bedford’s long-term relationship with the Massachusetts Bay Transportation Authority (MBTA).
The city last month presented the MBTA with the draft of a legal complaint arguing that the state substantially underpaid for about eight acres near the so-called “Whale’s Tooth” parking lot off Acushnet Avenue that was taken to be used for employee parking, layover space for trains and other operations. That sort of argument would be standard procedure in an eminent domain case.
What is more unusual, and what worries some state legislators, is a second claim in the draft complaint arguing that the MBTA did not have the authority to take the land in 2020 and 2021, as the city at that time was not a member of the state transit system.
New Bedford — which has since joined the MBTA system by popular vote last November — has not filed suit, and has declined to say if it intends to do so. The city has also not specified what, if any, response it has received from the state agency and has declined to respond to criticisms or answer questions about the draft complaint.
The MBTA defended the sum paid for the property, but a spokesman declined to say if the agency has responded to the 11-page draft complaint, which it received on April 4. The existence of the draft complaint was first reported by The Boston Globe, which obtained a copy.
In response to a request for an interview about the draft complaint, New Bedford Mayor Jon Mitchell’s office released a brief statement from City Solicitor Eric Jaikes emphasizing the administration’s “unwavering” support for South Coast Rail, but saying that the city is one of several property owners seeking fair compensation for MBTA land takings.
Jaikes’ statement noted that four owners have sued, one has prevailed in court, one case was settled out of court, and two cases are pending.
“Like the other property owners, the Administration believes the taxpayers of New Bedford should be fairly compensated for city land taken by the MBTA,” Jaikes’ statement said. “We are hopeful that ongoing discussions with the MBTA concerning the city land ultimately will secure their interests.”
MBTA spokesman Joe Pesaturo also declined an interview request and released a statement, saying the agency “appropriately exercised its eminent domain powers as provided by the Legislature and paid fair market value for all the properties taken.”
Pesaturo said the state paid $486,627. Holly Huntoon, a spokeswoman for the Mitchell administration, said the city was paid $324,000 on May 4, 2020, and smaller amounts after that. She said she did not have the full sum that the city received from the MBTA.
Asked in an email if the MBTA has responded or is planning to respond to the city’s draft complaint, Pesaturo did not answer.
The city’s threat of legal action worries state legislators, who fear it could sour relations with the MBTA, potentially jeopardizing future projects. They also wonder about the consequences for the region if the city were to prevail in the argument that the MBTA did not have the authority to take the land.
“It’s perplexing,” said State Rep. Chris Markey, of Dartmouth, who represents the 9th Bristol District, wondering aloud what would happen if the city were to bring such a case and win it. Would the land be returned to city ownership? If so, what would that mean for South Coast Rail? And how could a threat like this affect the city’s dealings with the state?
“I spent a lot of time trying to build relationships with people in Boston,” Markey said. “To bring an adversarial claim against people who are trying to help us, it really bothers me.”
He said he would ask Mayor Mitchell, whose office had the complaint drafted by a Hingham firm that lists eminent domain law among its specialties, why, if he wanted to negotiate for a higher price for the land, he did not seek state legislators’ help.
State Rep. William M. Straus of Mattapoisett, representing the 10th Bristol District, a lawyer and former Bristol County assistant district attorney, said the city’s approach is both wrong on the law and bad public policy.
He said the complaint misreads the state law, which he said gives the MBTA broad land-taking authority. He said state law bars the agency from conducting operations in communities that are not part of the transit system, but it includes no such restriction in land takings.
On policy grounds, he said “it’s the difference between what you can do and what you should do. The policy here is, look at the big picture,” bearing in mind that this is a $1 billion project with significant regional impact, and there are potentially other MBTA projects yet to come that could help the area. Threatening to sue, he said, “is not a way to foster a working relationship with the state.”
He also argues that the complaint is mixing land value with money spent to improve the property. The four plaintiffs in the draft complaint — the city, the Housing 70 Corporation, the New Bedford Port Authority and the Redevelopment Authority — claim that they were never reimbursed for $9.9 million in expenses to prepare the site for rail development.
State Sen. Mark C. Montigny, of New Bedford, who represents the Second Bristol and Plymouth District, said he does not think the draft lawsuit threatens to sink South Coast Rail. Still, after advocating for commuter rail since the 1990s, he does not want to give anyone in authority an excuse to delay the project.
“I don’t want anything that will make it more difficult,” he said.
Peter E. Flynn, a lawyer in private practice who has been specializing in land-takings since the mid-1980s, including his work as assistant to several state attorneys general, said the concern about the future of the rail project is overplayed and the legal critique is wrong.
Flynn said that while he has not seen the draft complaint, he said that what he knows of it from word of mouth tells him that the city is on solid ground in its argument about the agency’s authority on land takings in communities that are not in an MBTA district.
“If you ask me who wins,” said Flynn, “New Bedford wins.”
Flynn, who won a $1.2 million judgment against the MBTA earlier this year in a land-takings case involving property on Church Street in New Bedford, said “I would defend the mayor. I think they should follow the leads of their counsel,” adding that he worked on land-taking cases in the attorney general’s office with several of the lawyers whom the city hired to draft the complaint.
“They made an illegal taking,” he said of the MBTA. “Did they mean well? Yes.”
He said if the city were to prevail in making that argument on MBTA authority, the agency would have to start the takings process over again, as the city is now part of the transit district. That could put the city in a position to get more for the land, he said, as the takings were done in the spring of 2020 and the fall of 2021, when the real estate market was depressed during the height of the COVID-19 pandemic and in the early stages of recovering from the pandemic.
Reminding the state of this could be an effective bargaining approach, he said, downplaying the risk to the commuter rail project.
“I don’t believe for a second they’re putting the South Coast Rail in jeopardy,” Flynn said, adding that a draft suit like this is not an uncommon practice in settling civil disputes out of court. “I have a funny feeling it’ll probably work itself out.”
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