Ballantine v. Town of Falmouth
| Decision Date | 21 June 1973 |
| Citation | 363 Mass. 760,298 N.E.2d 695 |
| Parties | Henry Thomas BALLANTINE, Jr., et al. v. TOWN OF FALMOUTH et al. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Andrew F. Lane, Boston, for plaintiffs.
Laurence S. Fordham, Boston (Peter W. Coogan, Newton Centre, with him) for Woods Hole, Martha's Vineyard and Nantucket Steamship Authority.
Francis W. Keating, Town Counsel, Falmouth, for the Town of Falmouth and others.
Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and WILKINS, JJ.
This bill for declaratory relief seeks a determination of the validity of action taken by the board of selectmen of Falmouth pursuant to authorization purportedly granted by votes passed under arts. 1 and 2 of the warrant for a special town meeting held on April 2, 1969. At the heart of the controversy is the plaintiffs' challenge to the validity of the taking by the town of an abandoned railroad right of way which the plaintiffs had recently acquired from the Penn Central Company. The right of way extended from Falmouth Center to Woods Hole, a distance of about three and one-third miles, and comprised approximately twenty-five acres.
Under art. 1 of the warrant for the special town meeting, the town voted unanimously to appropriate funds and to 'authorize the Selectmen to purchase or take by eminent domain for conservation, recreation, public parking and public utilities purposes that portion of the railroad right of way between Falmouth Center and Woods Hole that has been abandoned for railroad purposes, such taking to be under the control of the Selectmen.' Under art. 2 of the warrant the town voted to 'authorize the Board of Selectmen to negotiate and enter into a lease with the Woods Hole, Martha's Vineyard and Nantucket Steamship Authority or others, to allow the Authority or others to continue to use that portion of the railroad right of way now used by them for parking.'
The judge upheld the action of the town under both particles of the warrant, and a final decree was entered ruling that the votes under arts. 1 and 2, the taking and the lease were valid. The trial judge made voluntary findings of fact. The evidence is reported.
On appeal the Appeals Court sustained the judge's ruling that the land taking was valid but concluded that the town had no authority to lease property which it had just acquired by eminent domain for parking purposes because land so acquired for off street parking facilities had to be 'held, used and operated by the town itself.' Mass.App.Ct., a 294 N.E.2d 524, 530. The plaintiffs, on the one hand, and the town and the Authority, on the other, applied for leave for further appellate review, which we have granted. 2
The defendant Authority operates a passenger and freight boat line out of Woods Hole. See St.1960, c. 701, esp. § 4, par. (a), St.1965, c. 437. The area where its boats dock is quite congested with vehicular traffic, particularly in the summer months. This situation has created a fire hazard. There is a considerable demand for parking areas for use by motorists who leave their cars on the mainland when traveling to Martha's Vineyard or Nantucket. The demand for parking in the area of Woods Hole is not generated solely by the existence of the Authority's terminal. The Authority has maintained a parking a area near Falmouth Center, several miles from its Woods Hole dock. The Authority also owns and maintains a parking area adjacent to its terminal and abutting the railroad right of way. Finally, commencing in 1966 the Authority leased a portion of the railroad right of way for parking. This leased area, operated for the Authority by the defendant Corey, has been used generally by the public for parking and not merely by customers of the Authority.
In the latter part of 1968 the Interstate Commerce Commission authorized the railroad to abandon the right of way. When the railroad expressed an interest in selling the right of way, the town, the Authority and the plaintiffs took separate steps toward its possible acquisition. The plaintiffs' interest in the property was prompted largely because they own land adjacent to much of that part of the right of way which had been used for parking. Their bid to purchase the right of way was accepted by the railroad on April 1, 1969. The Authority, which has no power of eminent domain, submitted a bid to acquire the premises, but later withdrew it because of a question of the railroad's title to a portion of the right of way. The town took steps which led to the holding of the special town meeting at which it authorized the action which the plaintiffs challenge. The plaintiffs acquired title to the premises from the railroad on May 23, 1969; the town took the property by eminent domain on July 25, 1969. The judge found that all parties exercised good faith.
Since the acquisition of the premises by the town, the parking lot on the premises has continued to be used by the Authority and operated by the defendant Corey, pursuant to an understanding between the town and the Authority that, until the dispute between the plaintiffs and the town is disposed of, the terms of the old lease between the railroad and the Authority, which allows general parking by the public, would be followed. No written agreement between the town and the Authority has been executed.
Several principles of law seem clear and are not challenged by the parties. The provision of off street parking facilities is public purpose for which land may be taken by a municipality, even if that land is being devoted to public parking by its private owner. Tate v. Malden, 334 Mass. 507, 508, 136 N.E.2d 188. Where there is legislative authorization to do so, a municipality may properly take for public parking purposes land already in use for public parking and lease it to private individuals who will, for personal profit, operate the premises for parking without substantial change from present conditions. Court St. Parking Co. v. Boston, 336 Mass. 224, 230--231, 143 N.E.2d 683. Even without explicit statutory authority, municipalities have the undoubted right to lease real estate, land or buildings, held for public purposes and not presently needed for such purposes. Davis v. Rockport, 213 Mass. 279, 283, 100 N.E. 612. D. N. Kelley & Son, Inc. v. Selectmen of Fairhaven, 294 Mass. 570, 575, 3 N.E.2d 241, and cases cited.
The plaintiffs accept the fact that, if the town had acted only to acquire the premises for public parking, they would have no basis to object to the taking. Their challenge to the taking rests on the existence of the vote under art. 2, which they contend shows that the taking was in actuality a taking for the private purposes of the lessee of the parking facilities on the premises. They rely on our decision in Salisabury Land & Improvement Co. v. Commonwealth, 215 Mass. 371, 102 N.E. 619, where we held a taking to be invalid under a statute which purported to authorize the immediate disposition to private individuals of land acquired by eminent domain ostensibly for a public purpose. In the case now before us, the situation is significantly different because the premises will in all events be owned by the town and used for the public purpose for which the premises were acquired.
The public parking purposes for which the premises were acquired can be carried out even if there is no lawful authorization to permit someone other than the town to operate the parking facilities. The need for parking for the public in the vicinity of the Authority's terminal is unquestioned. A taking of premises for municipal parking is not to be invalidated merely because some private benefit may follow from the activities of occupants of the vehicles parked in that public parking area. 3
We agree with the Appeals Court that the town's action under art. 1 and the resulting taking are not tainted by the town's action under art. 2, even if it is invalid. See Quinlan v. Cambridge, 320 Mass. 124, 132, 68 N.E.2d 11. The votes under the two articles were passed separately. The authorization to take the premises was not contingent upon the negotiation of a lease with the Authority or anyone else. In fact, under art. 2 the selectmen were merely authorized to enter into a lease. It was not then certain that they would be able to do so on terms satisfactory to them.
Because the taking is valid standing alone and is not contaminated by the town's action under art. 2 (), the...
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