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NEW BEDFORD — The city has settled a dispute with the state over property taken for the South Coast Rail, winning seven times the sum first paid for the land, but less than the amount demanded in a draft legal complaint that drew harsh criticism from state lawmakers last year.
Under an agreement reached in negotiations after the city floated the lawsuit against the Massachusetts Bay Transportation Authority, the agency will pay $3.5 million for eight acres near the so-called Whale’s Tooth parking lot. The agency had previously paid $486,627 in five takings between April 2020 and October 2021, the agreement says.
The legal complaint, which was never filed against the state, claimed nearly $10 million in damages for work done to prepare the site for rail development in addition to the land value. The 10-page agreement has been hailed as a win for the city by Mayor Jon Mitchell, and for the state by a legislator who last year scolded him for mishandling the matter.
“Our position all along has been simple: New Bedford taxpayers deserve to be fairly compensated for the land taken by the MBTA,” Mitchell said in a statement released Tuesday morning. “This settlement achieves that goal, and I am grateful for the efforts of Governor Healey and the MBTA to make it happen.”
Mitchell said he “conveyed to the MBTA his belief that the payment did not reflect the fair market value of the property, and that the City was prepared to take legal action to be made whole.”
State Rep. Bill Straus of Mattapoisett, representing the 10th Bristol District, one of two legislators who lambasted Mitchell last year, called the agreement that he said was recommended by an arbitrator a “big legal win for the state.”
In a statement posted on Facebook Monday night, Straus noted that the city dropped claims for nearly $10 million in damages, and a challenge to MBTA land-taking authority that Straus considered legally dubious and a potential threat to further rail system expansions.
“The city has stepped back and will now accept a much reduced land value and damage amount of just over an additional $3 million,” Straus said in the statement. He said the city is also “surrendering on its questionable legal position that the MBTA had no legal authority to have taken the Whales Tooth land for public purposes beginning in 2020.”
The Boston Globe reported in April 2023 that the city had presented the MBTA with a draft legal complaint claiming that the state substantially underpaid for the land off Acushnet Avenue that was taken to be used for employee parking, layover space for trains and other operations.
The city’s second claim in the 11-page draft argued 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 later joined the system by popular vote.
State legislators at the time said the draft complaint was wrong on the law and threatened to sour relations with the MBTA, potentially jeopardizing the South Coast Rail project, a $1 billion venture.
A lawyer specializing in eminent domain cases, who was involved in other MBTA land-taking cases but not this one, told The Light at the time that he thought the criticism was overstated, and the city would likely prevail in the end.
MBTA General Manager Phil Eng in June announced that South Coast Rail’s often-estimated launch date was being moved back again, to May 2025. In appearances in Fall River and New Bedford, he said rail control systems were being tested and work was completed on four of six new stations, but gave no indication that the project as a whole was in question.
The city and three other plaintiffs included in the draft complaint — the Housing 70 Corporation, the New Bedford Port Authority and the Redevelopment Authority — never brought suit against the agency. Representatives of Mitchell’s administration continued to say that negotiations with the state were going on, but revealed no further details.
MBTA spokesman Joe Pesaturo in spring 2023 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.”
This is at least the third instance in which owners have been awarded more than the original sum paid by the MBTA for a South Coast Rail land-taking.
A Bristol County Superior Court jury in March returned a verdict for the owner of property on Church Street that was not quite what the plaintiffs were seeking, but still more than four times the $102,300 that the MBTA originally paid in 2019. The case involved about a half-acre taken from a larger piece of property for the Church Street Station platform itself, and for the right to use surrounding areas.
The owners in that case claimed about $1 million in damages and land value, and were awarded $450,000.
In October 2022, according to published accounts, a county Superior Court jury decided that a piece of land at 387 Church St. had been worth $3.51 million, although the Michigan-based company that brought the lawsuit against the MBTA was paid $2.32 million for the state land-taking in 2019.
When the city’s threatened legal action surfaced, state legislators said the move was wrong-headed. They wondered 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 because the city was not a member of the state transit system at the time.
State Rep. Chris Markey of Dartmouth, who represents the 9th Bristol District, said at the time that the move was “perplexing.”
Markey expressed concerns about the effects if the city prevailed in challenging the state’s eminent domain authority. Could 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 last year. “To bring an adversarial claim against people who are trying to help us, it really bothers me.”
He wondered why the city did not seek legislators’ help in negotiations with the MBTA.
Straus said in an email Monday night that the city would try to present this outcome as a success, but the matter was badly handled.
“The outcome is nothing more than a very traditional land value dispute is what it always should have been. They could have initiated such a claim years ago with likely the same result,” Straus said. As it is, the city “ended up with years of delay while title to the commuter rail station property and parking area was put in legal jeopardy.”
Peter E. Flynn, a lawyer in private practice who has been specializing in land-takings since the mid-1980s, in spring 2023 downplayed the concern about the future of the rail project, and disagreed with the legal critique.
Flynn said that while he had not seen the draft complaint, he said that what he knew 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, New Bedford wins.” Flynn said at the time.
Email reporter Arthur Hirsch at ahirsch@newbedfordlight.org.
At a cost of 1 billion how many tickets will it take break even? When you consider the future vale of money this project will never be viable. “Choo-choo” Charlie’s legacy will always be with us
The city taxpayers should be given back money on their real estate taxes, they always go up. It’s about time they go down.