Foley Hoag LLP secured a major victory in the Massachusetts Supreme Judicial Court on behalf of the Massachusetts Bay Transportation Authority (MBTA), obtaining a unanimous decision rejecting the claim by the town of Sudbury, Mass. that the MBTA had violated the century-old “prior public use” land use doctrine. This decision affirmed the Land Court’s dismissal of Sudbury’s 2017 complaint, which sought to invalidate a lease by MBTA to Eversource of a 4.3-mile disused rail right of way in Sudbury, which will generate $9 million in revenue for the MBTA. 

Sudbury argued unsuccessfully that the  common law “prior public use” doctrine — which prohibits “diversion of public lands acquired for one public use to another inconsistent public use unless authorized by plain and explicit legislation” — should also apply to transfers between public entities and private entities. Sudbury asserted that the lease of a publicly-owned rail right of way for installation of a private electric transmission line violated that doctrine. The SJC disagreed, confirming that the doctrine applies only to certain transfers between two public entities.

“The Court issued a thorough decision that reached the right result," said Foley Hoag attorney Tad Heuer, who argued the case before the Supreme Judicial Court. "The Court was justifiably concerned that expansion of the doctrine beyond its limited scope would have created what it called 'widespread uncertainty' over the validity of numerous prior public-private land transactions around the state. And expansion would have made it more challenging for the T to meet its statutory obligations to maximize much-needed non-transportation revenues for the benefit of its farepayers.”

The importance of the Court’s decision extends beyond the MBTA, as the decision provides valuable certainty to public landholders across the Commonwealth — from agencies to municipalities to redevelopment authorities — who are pursuing innovative public-private partnerships ranging from affordable housing to renewable energy.

Foley Hoag attorneys Tad Heuer, Jesse Alderman and Jeffrey Mullan represented the MBTA in this matter.