Eminent domain used to acquire River's Edge properties: Medford (MA) Transcript, 7/28/05

By Timothy J. Lavallee

A recent U.S. Supreme Court ruling that increases the government's power to take private property has some wondering if it will have an effect in the tri-city area.

Malden and Medford are both densely populated cities with very little new development space left. Most of the new construction in the coming decades will be the result of redeveloping existing properties.

An example of this, though without the use of eminent domain, is Station Landing, a mixed-use residential and retail community in Wellington Circle near Krispy Kreme. The property combined a parking lot, a gas station and a flower shop, and passersby can now see the steel frame going up on the corner of routes 16 and 28.

But that was privately acquired and developed. So were properties in Malden Square on the corner of Pleasant, Abbot and Exchange streets, which are being turned into a luxury apartment complex by Malden-based Combined Properties.

All of this redevelopment raises the specter that Malden and Medford are very desirable for redevelopment, and it's conceivable to think that both cities could be asked to take private land for private construction following the Supreme Court's decision last month in Kelo et. al. v. City of New London, Conn.

That decision expanded the definition of the "public use" clause of the rules for eminent domain - a guarantee that allows the government to take land away from private landowners in exchange for fair market value. The case involved a group of homeowners who lived along a waterfront area and a developer who wanted to build a hotel and other private ventures.

"I was surprised it passed because of the cases involved," said Stephen Wishoski, executive director of the Malden Redevelopment Authority. "The city was taking a viable neighborhood. I can't ever imagine us ever using that in this city. It's the ultimate power of government over the individual; where the government can come in and take property."

Although the Malden Redevelopment Authority had wider powers for taking land than individual cities and town, previously granted by state law, the decision "is a real boost in the power of cities and authorities in acquiring," Wishoski said.

Until this decision, the authority couldn't actually go in and start the eminent domain process without first developing a plan and having it approved by the governing body of the city. For Malden and Medford, that's the City Council in each city.

"I often tell clients that the power of eminent domain needs to be used judiciously, and in a redevelopment case, that needs to be underlined," said Jeff Mullen, an attorney with Boston law firm Foley Hoag, LLP, who is experienced with government land takings. "The key is to use it in a reasonable and judicious in a way."

Mullen has advised the Malden Redevelopment Authority and the River's Edge governing body known as the Mystic Valley Development Commission, which is composed of representatives from Malden, Medford and Everett. It is the closest example, geographically and legally, of government using eminent domain to redevelop land for private use.

Eminent domain was the primary form of land acquisition for about 200 acres worth of land along the Malden River now known as River's Edge. First conceived of as a research and development hive for the then-burgeoning telecommunications industry, the TeleCom City project intended to take an urban wasteland and turn it into an example of modern urban renewal.

After the telecommunications industry bottomed out earlier this decade, the project soldiered on in its attempt to reclaim contaminated industrial land. The goal now is to build some form of housing along with commercial buildings.

While some of the land will become a park along the eastern bank, most of it is intended for private development by Preotle, Lane and Associates, the company that won the bid to develop the property. Although it will be privately owned when complete, the taxes generated from the properties will go to MVDC and then will be proportionally distributed to the cities.

But the Supreme Court decision in New London case now allows this type of development in a more broad sense. For River's Edge, it was about taking publicly hazardous land, in many cases, and turning it into an amenity. For New London, it was about bringing in more tax dollars from the hotel and attendant properties, which bring in more tax revenue than single-family homes.

"I think the MVDC is more like urban renewal, given that site, but it's not very far from that. Kelo clears the way and provides the underlying constitutional permission to permit cities to do this," Mullen said. "Underperforming properties that aren't generating enough taxes? I don't know. That starts to get to a point where you have to ask the question: How private is private?"

How private is private?
"The whole idea of taking property by eminent domain is supposed to be for the betterment of the community," said Malden Ward 7 Councilor Chris Simonelli, whose ward has recently started to show signs of private redevelopment. "I probably wouldn't have been in favor of taking it by eminent domain and turning it into condos. I would have like to have seen it become a fire station or a joint police and fire station. I do kind of like the idea of using eminent domain powers of going after dilapidated commercial property. That's something that I wouldn't mind seeing the city using eminent domain powers for."

However, it's not likely anyone is going to be coming after an individual property owner anytime soon, Wishoski said. Malden and its redevelopment authority will continue to use eminent domain for public use, but it will still follow the same procedures it has in the past.

The most important aspect of that, Wishoski said, is to be fair to the landowner.

"Our goal when we go in is never to steal their property," Wishoski said. "Our approach has been to try to settle and not to underpay."

Medford Transcript: www2.townonline.com/medford