Sorenti Bros., Inc. v. Commonwealth
| Decision Date | 19 May 2014 |
| Docket Number | SJC–11420. |
| Citation | 9 N.E.3d 779,468 Mass. 189 |
| Parties | SORENTI BROS., INC. v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
John E. Bowen, Assistant Attorney General (Joseph Callanan, Assistant Attorney General, with him) for the Commonwealth.
Nelson G. Apjohn (Robyn Smith Maguire with him) for the plaintiff.
Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.
This eminent domain case involves the Sagamore Bridge Flyover Project (flyover project) in Bourne that, among other changes, eliminated the Sagamore traffic rotary (rotary) just north of the bridge. The plaintiff, Sorenti Bros., Inc. (Sorenti),owns parcels of land near the former rotary; it operates a gasoline station on one of them. Sorenti commenced this action in the Superior Court, seeking damages from the Commonwealth on account of the temporary and permanent land takings that the Commonwealth made in connection with the flyover project. At the conclusion of a jury trial, judgment entered awarding Sorenti almost $3 million in damages. The Commonwealth appealed, and the Appeals Court, in an unpublished memorandum and order issued pursuant to its rule 1:28, affirmed. Sorenti Bros., Inc. v. Commonwealth, 82 Mass.App.Ct. 1123, 2012 WL 5869381 (2012). The case is before us on further appellate review.
At issue is the applicability of G.L. c. 81, § 7C (§ 7C),1 to Sorenti's gasoline station parcel (Shell parcel), and whether the elimination of a portion of Canal Street as part of the flyover project resulted in a substantial, and compensable, impairment of access to that parcel. We conclude that (1) under § 7C, for a property owner to be entitled to damages on account of the construction of a limited access highway, the highway must be constructed in whole or in part over the public way on which the owner's property directly fronts or abuts; and (2) under G.L. c. 79, § 12 ( § 12), when a partial taking of property has been made, the property owner is entitled to recover damages for loss of access to the remainder of the property only where that loss or impairment is severe. Because the flyover project was not laid over a public way that directly abutted Sorenti's property, Sorenti was not entitled to recover damages under § 7C as a matter of law. Similarly, in the circumstances of this case, Sorenti was not entitled to impairment of access damages under § 12 because it still retains reasonable and appropriate access to and from the Shell parcel. The trial judge's instructions erroneously permitted the jury to award damages in part for impairment of access under both §§ 7C and 12. Accordingly, we vacate the judgment of the Superior Court and remand the case for a new trial.
1. Background. The flyover project eliminated the rotary and extended State Routes 3 and 6 over the Sagamore bridge by constructing a new limited access highway. To accomplish this result, the Commonwealth made eminent domain takings from a number of property owners in the vicinity of the rotary, including Sorenti. This case involves two parcels of land owned by Sorenti: the Shell parcel, containing a Shell brand gasoline station and a convenience store; and “the undeveloped parcel,” a vacant, commercially zoned piece of land.
Before the flyover project, the Sorenti property was bounded on the west by Canal Street, a State road, and on the north and east by Meetinghouse Lane, a town of Bourne road.2 The Shell parcel had access to Canal Street by a curb cut, and Canal Street in turn connected directly to the east side of the rotary; the rotary connected to Route 3 on the north, Route 6 (Mid–Cape Highway) on the south, and the Scenic Highway on the west. The Shell parcel also had access to Meetinghouse Lane by a curb cut, and Meetinghouse Lane, like Canal Street, connected directly to the rotary. Cars traveling on any of the three highways feeding into the rotary could turn from the rotary onto either Canal Street or Meetinghouse Lane and then quickly enter the Shell parcel by driveways leading to the gasoline station. As part of the flyover project, Canal Street was relocated,3 and although the Shell parcel had access to the relocated Canal Street, its access was at a point different from where it was before the project and, in any event, the flyover project eliminated the rotary and Sorenti's direct access, via Canal Street and the rotary, to the system of highways of which the rotary was a part. The Sorenti property still has access to the three highways (Routes 3 and 6, and the Scenic Highway) after the completion of the flyover project, but one must drive a somewhat more circuitous and longer route to reach those highways from the property.4
In September, 2006, Sorenti filed its complaint in the Superior Court, seeking damages associated with all the takings effected by the Commonwealth in connection with the flyover project. Among other claims, Sorenti maintained that the loss of access to Canal Street and thereby to the highway network formerly connected to the rotary caused a significant diminution in value to the Shell parcel. After a jury trial, Sorenti received a general verdict in its favor on all its damages claims in the amount of $4.15 million; after subtraction of the pro tanto payment of $1.7 million earlier made by the Commonwealth, judgment entered for $2,954,561.42, including interest and costs.
2. Discussion. We turn to the two issues the Commonwealth has raised in its application for further appellate review.5
a. Applicability of G.L. c. 81, § 7C.Section 7C provides in pertinent part:
(emphasis added).
There is no dispute that the flyover project created a limited access highway as defined in § 7C that runs north to south directly over where the rotary previously had been, and Sorenti specifically agrees with the Commonwealth that the limited access highway so created includes only Routes 3 and 6. In the Superior Court, Sorenti contended that it was entitled to recover damages pursuant to § 7C because the flyover project as a whole eliminated the existing Canal Street at the point that the Shell parcel abutted it, and this loss of access to Canal Street constituted an “injury to [Sorenti's] easement of access” to a public way that was compensable under this statute. The trial judge agreed in substance and, over the Commonwealth's objection, recited the language of § 7C to the jury as part of his final instructions. We disagree.
As the Commonwealth points out, and as this court set out in LaCroix v. Commonwealth, 348 Mass. 652, 205 N.E.2d 228 (1965), § 7C contains a number of discrete conditions that all must be met by a property owner claiming an entitlement to damages under the statute. In particular, § 7C requires that (1) a limited access highway be “laid out in whole or in part” (2) “in the location of an existing public way”; (3) the land or property owned by the claimant “abut[ ] upon such existing public way”; and (4) the claimant must have suffered a “taking of or injury to [its] easements of access to such public way” (emphasis omitted). See LaCroix, supra at 655 n. 2, 205 N.E.2d 228, quoting § 7C. Here, the new limited access highway extends directly over the location of the now former rotary, which, all agree, qualified as “an existing public way.” But before the flyover project, the Shell parcel did not directly abut or front on the rotary. Rather, the Shell parcel abutted only Canal Street and Meetinghouse Lane, and while both of these ways led to the rotary, neither of them is included in the new limited access highway, which encompasses only Routes 3 and 6.6 Accordingly, we agree with the Commonwealth that Sorenti, by definition, cannot meet the third requirement of § 7C.
Sorenti argues against this conclusion by referencing the flyover project's “layout plan” that governed the over-all flyover project and specifically the layout and construction of the new limited access highway, pointing out that the layout plan covered the area immediately around the rotary, including Canal Street. Accordingly, the argument goes, because Canal Street is included within the layout plan and the Shell parcel abutted the relevant portion of Canal Street, Sorenti qualifies as an “owner[ ] of land abutting upon” an “existing public way” within the meaning of § 7C, and is entitled to damages for the injury sustained to its “easement of access” to Canal Street and the system of public ways to which it connected.
The argument fails. A property owner's entitlement to seek damages under § 7C requires that the limited access highway be “laid out” in the same location as an existing public way. “Laid out,” as the past tense of “lay out,” has a technical meaning in the highway context. See G.L. c. 4, § 6, Third (in interpreting statutes, “technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in the law shall be construed and understood according to such meaning”). “ ‘Laying out’ is, and has been from the earliest times, the appropriate expression for locating and establishing a new highway,” and involves “ascertain[ing] the place and course of said road.” Foster v. Board of Park Comm'rs of Boston, 133 Mass. 321, 329 (1882) (citations and quotations omitted...
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