Abuzahra v. City of Cambridge

• Decision Date: 17 February 2021
• Docket Number: SJC-12920
• Citation: 486 Mass. 818,162 N.E.3d 653
• Parties: Said S. ABUZAHRA v. CITY OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

486 Mass. 818

162 N.E.3d 653

Said S. ABUZAHRA¹

v.CITY OF CAMBRIDGE.

SJC-12920

Supreme Judicial Court of Massachusetts.

Argued November 2, 2020.

Decided February 17, 2021.

John S. Leonard, Boston, for the defendant.

John E. Bowen, Boston, for the plaintiff.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

KAFKER, J.

The issue presented is whether G. L. c. 79, the so-called "quick take" statute, permits a property owner to both accept a pro tanto payment for an eminent domain taking and simultaneously challenge the lawfulness of that taking.² Under c. 79, once a taking authority records an order of taking, the authority generally must tender a payment pro tanto to the property owner. G. L. c. 79, § 8A. However, the statutory framework is silent as to whether the acceptance of the pro tanto payment by the property owner precludes a challenge to the validity of the taking.

The plaintiff argues that the defendant city of Cambridge (city) must immediately tender him the full amount of the pro tanto payment, along with accrued interest since the time of taking, because G. L. c. 79 as it is currently written does not condition his acceptance of the pro tanto payment on waiving his right to challenge the taking of his real property. The city disagrees, arguing that the statutory framework and case law prohibit a property owner from accepting a pro tanto payment so long as the property owner pursues a claim challenging the lawfulness of the taking. According to the city, if the plaintiff challenges the taking, which is his statutory right, then he will have neither his property, which has been taken pursuant to the quick take statute, nor the pro tanto amount.

We conclude that G. L. c. 79 permits the plaintiff to both accept a pro tanto payment and simultaneously challenge the validity of the underlying taking. We do so because of the enormous power that the quick take statute provides, which immediately transfers ownership of the property from the property owner to the taking authority independent of judicial processes; the clear requirement of a pro tanto payment; and the absence of any statutory provision waiving pro tanto payments when the taking itself is challenged. Therefore, we affirm the order by a single justice in the Appeals Court, vacating a decision by a Superior Court judge that denied the plaintiff's motion to compel payment of the pro tanto amount, and we remand the matter to the Superior Court for further proceedings consistent with this opinion.

Background. 1. Statutory framework. The main statutory framework for eminent domain proceedings in Massachusetts is G. L. c. 79, which has been described as the "quick take" statute.³ Upon the recording of an order of taking by a taking authority,⁴ title to the property passes immediately by operation of law to the taking authority, and the right to damages for the taking vests in the property owner, "unless otherwise provided by law." G. L. c. 79, § 3. The taking authority must pay such damages "within sixty days after the right thereto becomes vested ... and shall, except as provided in [ G. L. c. 79, § 7D ], be made immediately available to the persons entitled thereto ...." G. L. c. 79, § 7B.⁵

In addition, G. L. c. 79, § 8A, states that, within sixty days of when the order of taking is recorded, the taking authority "shall ... offer in writing to every person entitled to damages on account of such taking a reasonable amount ..., either in settlement under [ G. L. c. 79, § 39,] of all damages for such taking ... or as a payment pro tanto." The statute also provides: "If such person elects to accept the offer as a pro tanto payment, such election shall be without prejudice to or waiver or surrender of any right to claim a larger sum by proceeding before an appropriate tribunal." Furthermore, "[a]fter a pro tanto payment has been made or after an offer of payment has been made in writing as required by this section and not accepted, no interest shall be recovered except upon such amount of damages as shall upon final adjudication be in excess of said payment or in excess of the written offer of payment as herein described." Id.

Finally, G. L. c. 79, § 18, provides that a property owner may challenge the lawfulness of a taking within three years from when the right to damages has vested. See Devine v. Nantucket, 449 Mass. 499, 506, 870 N.E.2d 591 (2007).

2. Facts. We summarize the relevant undisputed facts and the procedural posture of this case.

In October 2016, the city effected an eminent domain taking in fee of the plaintiff's real property pursuant to G. L. c. 79. At the time of the taking, ownership of the property was in dispute in separate litigation. Consequently, the city withheld its tender of the pro tanto payment to the plaintiff and instead paid the full $3,700,000 amount to the city treasurer pursuant to G. L. c. 79, § 7D. In August 2017, the plaintiff commenced the underlying action in Superior Court that sought to, among other things: (1) invalidate the city's October 2016 taking; and (2) either obtain an assessment of temporary damages, or, if the taking was found to have been valid, a determination of permanent damages. In its answer to the plaintiff's complaint, the city stated that it would tender the full pro tanto payment amount to the proper owner of the property once the separate ownership litigation was resolved. In October 2018, two years after the city's taking, the plaintiff secured a final judgment establishing his ownership over the property at issue.

In December 2018, the plaintiff filed a motion in this case to compel the full tender of the pro tanto payment along with accrued interest. In his motion, the plaintiff asserted that he was entitled to receive the pro tanto payment for the city's October 2016 taking of his property and simultaneously maintain a claim challenging the validity of that taking. In May 2019, a Superior Court judge issued an interlocutory order denying the plaintiff's motion to compel, reasoning that it was "somewhat incongruous" for the plaintiff to demand both payment of the pro tanto and the return of his property. The judge further ordered the city "to place the pro tanto funds, plus accumulated interest, with the Court [to] be held in an interest-bearing account" until the issue of the validity of the taking is resolved.

The plaintiff filed a petition pursuant to G. L. c. 231, § 118, first par., seeking interlocutory review of the Superior Court judge's order. A single justice of the Appeals Court reversed the order. The single justice determined that, "as a matter of law, the defendant[ ] must now pay [the plaintiff]" because "the [pro tanto] payment is required by [ G. L. c. 79, § 7B ], and the statute admits of no exception for cases in which the underlying taking is challenged." Subsequently, the city filed a motion for reconsideration, which the single justice denied. The city then appealed to the full Appeals Court pursuant to G. L. c. 231, § 118, second par., and we transferred the case here on our own motion.

Discussion. 1. Standard of review. The issue whether G. L. c. 79 permits a property owner to both accept a pro tanto payment and challenge the validity of the underlying taking is a pure question of law. Therefore, we review the Superior Court judge's decision below de novo. See Barr Inc. v. Holliston, 462 Mass. 112, 114, 967 N.E.2d 106 (2012) (no deference accorded to interlocutory order resolving pure question of law reported for appellate review by judge of Superior Court).

2. Statutory interpretation. "Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent." Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 620, 135 N.E.3d 711 (2019), quoting Ciani v. MacGrath, 481 Mass. 174, 178, 114 N.E.3d 52 (2019). However, where the statutory language is ambiguous or unclear, "we consider the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, [such that] the purpose of its framers may be effectuated" (quotation omitted). Spencer v. Civil Serv. Comm'n, 479 Mass. 210, 217, 93 N.E.3d 840 (2018), quoting Water Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744, 920 N.E.2d 33 (2010). We have also emphasized that "eminent domain statutes must be strictly construed because they concern the power to condemn land in derogation of private property rights." Providence & Worcester R.R. Co. v. Energy Facilities Siting Bd., 453 Mass. 135, 141, 899 N.E.2d 829 (2009), citing Devine, 449 Mass. at 506, 870 N.E.2d 591. Informed by these principles, we conclude that the statutory text, the legislative history, and the required strict construction of takings statutes compel the conclusion that, under G. L. c. 79, a property owner may both accept a pro tanto payment and challenge the validity of the underlying taking.

We begin with the recognition that "[t]he taking of land from a private owner against his will for a public use under eminent domain is an exercise of one of the highest powers of government." Devine, 449 Mass. at 506, 870 N.E.2d 591, quoting Lajoie v. Lowell, 214 Mass. 8, 9, 100 N.E. 1070 (1913). Takings under c. 79 are especially significant because the rights of the parties vest upon the recording of the order of taking. G. L. c. 79, § 3. Not only does the taking authority have the power to impose its will on the property owner through eminent domain, but the taking itself is swift and occurs automatically outside of judicial processes. Given this dynamic, the statutorily mandated pro tanto payment ensures that property owners receive some initial recourse following the deprivation of their property, and also incentivizes taking authorities to exercise their significant eminent domain powers with discretion.

Turning to the statutory text, G. L. c. 79, § 8A, requires that the taking authority offer the property owner a reasonable amount "either in...