Chandler v. County Commissioners of Nantucket County

• Decision Date: 07 August 2002
• Citation: 437 Mass. 430,772 NE 2d 578
• Parties: ALFRED D. CHANDLER, JR., & others v. COUNTY COMMISSIONERS OF NANTUCKET COUNTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

437 Mass. 430

772 NE 2d 578

ALFRED D. CHANDLER, JR., & others¹ v. COUNTY COMMISSIONERS OF NANTUCKET COUNTY.

Supreme Judicial Court of Massachusetts, Barnstable.

April 2, 2002.

August 7, 2002.

Present (Sitting at Barnstable): MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Howard P. Blatchford, Jr. (Andrew J. Ley with him) for the plaintiffs.

Kimberly M. Saillant for the defendant.

Michael E. Malamut, for New England Legal Foundation, amicus curiae, submitted a brief.

MARSHALL, C.J.

At issue in this appeal is the validity of several takings of land in the Surfside area on the southern coast of Nantucket. The county commissioners of Nantucket County (commissioners) took the property in fee simple pursuant to G. L. c. 82. That statute grants the commissioners the authority to take land "necessary, for the purpose of laying out, altering or relocating a highway." G. L. c. 82, § 7. At public hearings related to the takings the commissioners stressed that they had "no plan to do anything" with the taken land; they sought only to "preserv[e] historic rights [of way] to the sea" and to "manage these ... beautiful assets." The plaintiffs, landowners in Surfside whose property was taken, claim that the true purpose of the takings was to establish access rights to the beach over their land. This purpose, they argue, cannot support takings pursuant to G. L. c. 82.

We must decide whether the takings exceeded the proper scope of the commissioners' power under G. L. c. 82. In so doing, we need not decide whether land taken in order to connect an existing public way to the ocean may qualify as a taking under G. L. c. 82, for in this case the commissioners expressly disavowed any intention to build (or even improve) any roadway. Indeed a good part of the taken land lies on beach sand at the edge of the surf. We face a narrower issue: whether land may be taken under G. L. c. 82 in effect to acquire beach areas for public use, and to prevent the owners of the land contiguous to that beach from inhibiting the public from traversing their land, where the taking authority has expressly disavowed any intention of building a highway. It may not. Accordingly, we reverse the judgment of the Superior Court dismissing the complaint and vacate the takings ordered by the commissioners.

1. Citizens' petition and public hearings. On September 21, 1998, sixteen citizens of Nantucket submitted a petition to the commissioners, asking that they lay out for highway purposes and acquire by eminent domain the fee simple title to certain land in the Surfside area of the island. G. L. c. 82, § 2.² On December 8, 1999, the commissioners held a public hearing regarding the proposed takings. G. L. c. 82, § 4.³ The proposed takings plan discussed at this meeting was based on ways, privately owned, many no more than 200 feet apart, shown on an old subdivision grid plan recorded in 1889 with the Nantucket County registry of deeds. Most of the ways marked on the plan were never laid out, improved, used, or dedicated as streets. Due to substantial erosion of the shoreline over the past one hundred and more years, several of the ways are now partially or completely under water, and many parts of the plan are on what is now beach sand. Several of the landowners objected. The objections necessitated a second public hearing, held on January 26, 2000, regarding "the manner in which the proposed improvement shall be carried out." G. L. c. 82, § 5. See note 3, supra.

Between the first and second hearings, the commissioners revised the proposed takings plan to exclude the land that is now submerged under water. See Marblehead v. County Comm'rs of Essex, 5 Gray 451, 452 (1855) (commissioners have no authority to lay out highways over navigable waters or on land below high water mark). At the second hearing, proponents of the measure read into the record a letter to the commissioners from the Nantucket planning and economic development commission (NPDC) concerning the proposed takings, in which it gave "its strong support for the efforts ... to acquire rights of way to shoreline access in the Surfside area." The proposed takings, it continued, were consistent with the NPDC's identification of such rights of way "as among the highest open space acquisition priorities," and furthered its "goal of acquiring twenty five percent of the shoreline by the year 2025." In opposition, the affected landowners questioned the lack of conservation plans for the taken land and the legality of the takings under G. L. c. 82. In response to questions from the landowners, the commissioners repeatedly stressed that they had "no plan to do anything" with the land: "There is no master plan to change anything" in Surfside. "There is only the need for us to ensure that generation upon generation upon generation can use the roadways and the rights of way to the ocean without landowners blocking them off." "Tomorrow morning," they asserted, "we're not going to be out there paving. Or next year at this time or — for a long time." The commissioners asserted they would be "preserving historic rights [of way] to the sea." They noted that, although the current landowners had been "willing" to allow people to access the beach, the commissioners were concerned that future owners might not be: "[W]e need to make sure that if we're going to manage these assets, these beautiful assets, that ... we're in a good position to do that." They also claimed that parking could be better controlled if the ways were publicly owned. And there were "some elderly folks living down there" that would benefit by "access" of a fire engine or an ambulance "back and forth." Their reasons set forth, the commissioners noted that the takings needed to be in "common convenience and necessity" under G. L. c. 82, § 2, and then voted and read into the record the orders of takings.

After the vote, a Nantucket resident placed an article on the Nantucket town meeting warrant "to repeal, amend, or veto" the takings, or, in the alternative, to "enact takings in the Surfside area pursuant to a beach access management plan to be formulated in conjunction with Surfside residents and Massachusetts Coastal Zone Management." The article failed to achieve a two-thirds majority vote needed to pass. See § 2.8(d) of the Nantucket County Charter, St. 1996, c. 290, § 4.

2. The takings. The taken land comprises fourteen forty-foot wide strips of land ranging in length from roughly 250 to 2,200 feet, and lies within a relatively unpopulated one half-mile area of beach and beach front property, one-half mile east of the existing beach. Twelve strips run perpendicular to the ocean at approximately 200-foot intervals. Of these, eleven are laid out partly on beach sand, terminating in the surf. Two of the proposed strips (Nobadeer and Weweeder) parallel the shoreline; one (Nonantum) lies entirely on the sand. The plaintiffs claim, and the commissioners do not dispute, that roughly one-third to one-half of the total area of the land taken is laid out on beach sand seaward of a clearly delineated coastal bank, subject to the ebb and flow of the tide; the revised takings plan shows takings of roughly two acres of coastal beach.

3. Court proceedings. The plaintiffs sought relief in the nature of certiorari in the Supreme Judicial Court for the county of Suffolk. See G. L. c. 249, § 4. They requested an injunction barring the commissioners from recording or registering any order of taking in accordance with their vote of January 26, 2000, a declaration that the commissioners' action was not a valid exercise of authority under G. L. c. 82, and a judgment quashing that action. A single justice transferred the case to the Superior Court, where the parties filed the administrative record of the proceedings before the commissioners. See Superior Court Standing Order 1-96(2). The plaintiffs moved for judgment on the pleadings, which the judge denied after a hearing, dismissing the complaint. We granted the plaintiffs' application for direct appellate review.

4. Standard of review. The standard of review in a certiorari case may vary according to the nature of the action for which review is sought. See Levy v. Acting Governor, 436 Mass. 736, 745-746 (2002); McSweeney v. Town Manager of Lexington, 379 Mass. 794, 800 (1980). Commissioners have long exercised broad discretion in determining whether a new highway is warranted. See Monterey v. County Comm'rs of Berkshire, 7 Cush. 394, 402 (1851). Certiorari review of such discretionary action is generally not available except to determine whether the action was arbitrary and capricious. See, e.g., Emerson College v. Boston, 391 Mass. 415, 422 n.14 (1984); School Comm. of Hatfield v. Board of Educ., 372 Mass. 513, 517 (1977); First Church of Christ, Scientist v. Alcoholic Beverages Control Comm'n, 349 Mass. 273, 275 (1965). In the context of the plaintiffs' claim, this is saying no more than that we examine the commissioners' actions to determine whether they have acted for reasons extraneous to G. L. c. 82. See Fafard v. Conservation Comm'n of Reading, 41 Mass. App. Ct. 565, 567-568 (1996) (applying arbitrary and capricious standard of review). 5. Commissioners' authority under G. L. c. 82. As the Superior Court judge noted, the record is replete with statements by the commissioners of their "intent to secure the land for present and future access to the beach and the ocean." General Laws c. 82 makes no reference to the propriety of a taking on that basis. We therefore consider whether the taking of land to secure for public use multiple pathways to the ocean at points only 200 feet apart, where there is no intent to construct roadways on the land taken, is consistent with the intent of the statute. Applying traditional rules of statutory construction, we conclude that the statute authorizes takings solely to facilitate safe and convenient travel through the construction of...