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New Developments in Environmental Law

Sudbury v. MBTA Case Applies Doctrine of Prior Public Use to Inter- and Intra-Governmental Land Transfers, Not to Private

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A legal doctrine established prior to Article 97 protects public lands dedicated to a public use from being used for other purposes without legislative authorization, meaning a bill in the General Court passed by majority vote. This is the doctrine of Prior Public Use. Although it pre-dates Article 97, the Prior Public Use doctrine continues to serve as a kind of traditional backup to Article 97 for public land dedicated to a public use.

In Town of Sudbury v. Mass. Bay Transp. Auth., 485 Mass. 774, 152 N.E.3d 1101 (2020), the Massachusetts Supreme Judicial Court considered whether the scope of the doctrine of Prior Public Use extended to, and consequently barred, the diversion of public land devoted to a specific public use to another inconsistent – but private – use.

The Town of Sudbury sought to prevent the MBTA from entering into an option agreement with NSTAR Electric Company d/b/a Eversource Energy for an easement to install an electric transmission line underneath an historic railroad Right-of-Way, without the requisite legislative authority.

Under the doctrine of Prior Public Use, public lands acquired for and devoted to one public use may not be diverted to another inconsistent public use without “plain and explicit legislation.” There is a long history of passage of such bills, which need to identify clearly the land involved, the current use, the new use, and the intent to authorize the change.

Helpfully, in this new case, the Supreme Judicial Court laid out the pleading requirements for a case brought under the Prior Public Use doctrine: a public use, a previous devotion of the property to only one public use, an inconsistent subsequent use by a public entity, and a lack of legislative authorization.

Declining to expand the doctrine of Prior Public Use to subsequent private uses by private entities, the Court reasoned that the purpose of the doctrine is “to resolve conflicts over the use of public lands between State-chartered corporations, municipalities, and other governmental agencies that might claim authority to use another government entity’s land or to take the land by eminent domain, in a potentially never-ending cycle of takings.”

Extending the doctrine to inconsistent private uses, the Court indicated, would be a sweeping change that would not advance the purposes of the doctrine, would create widespread uncertainty concerning numerous existing holdings of private land that were transferred by public entities, and “would render future developments between public and private entities…prohibitively expensive and time-consuming to undertake.”

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Luke H. Legere, Esq.

LUKE H. LEGERE, Esq. is a Partner with McGregor Legere & Stevens, PC. He helps clients with a broad range of environmental, land use, and real estate issues including coastal and inland wetlands and waterways, zoning, subdivision, development agreements, conservation restrictions, state and local enforcement actions, stormwater, solid waste, hazardous waste, air pollution, site remediation, regulatory takings, affordable housing, and energy facility siting.

Mr. Legere routinely represents clients in permitting matters before conservation commissions, planning boards, zoning boards of appeals, boards of health, and other local environmental and land use boards and officials. He frequently represents clients in administrative enforcement proceedings and adjudicatory hearings before state agencies such as the Department of Environmental Protection (“DEP”). He regularly handles litigation in state and federal courts at both the trial and appellate levels.

Mr. Legere often writes and speaks on topics such as the Wetlands Protection Act, Chapter 91, Watershed Protection Act, Article 97, water pollution control, non-zoning wetlands bylaws, zoning and land use, regulatory takings, and brownfields. He has had articles published in newsletters for the Massachusetts Association of Conservation Commissions (“MACC”), Real Estate Bar Association (“REBA”), and Association of Massachusetts Wetlands Scientists (“AMWS”). He is the author of the Water Pollution Control chapter of the Massachusetts Continuing Legal Education’s (“MCLE”) treatise on Environmental Law.

Mr. Legere teaches a course on Legal Research and Writing at New England Law | Boston. He leads workshops for the Citizen Planner Training Collaborative (“CPTC”) offering guidance to members of local boards on the State Zoning Act, Special Permits and Variances, and Writing Reasonable and Defensible Decisions. He regularly serves as a panelist for MCLE’s “Practicing with Professionalism” program.

Mr. Legere has served as co-chair of the Boston Bar Association’s Wetlands, Waterways, and Water Quality Committee. He served two terms on the Board of Directors for the Queechy Lake Club, a non-profit corporation dedicated to the preservation and protection of Queechy Lake in Canaan, NY.

Mr. Legere is a graduate of Colgate University and New England Law | Boston, cum laude.

Mr. Legere has enjoyed success in court and agency administrative proceedings, and is often able to achieve his clients’ desired result by finding creative solutions to negotiate settlement for seemingly intractable disputes.

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