Nantucket loses eminent domain case: Cape Cod Times, Hyannis MA, 7/20/07

By Hilary Russ

[Massachusetts'] highest court ruled yesterday that the town [of Nantucket] was wrong when it snatched a parcel of land near the airport in 1968.

The property, which abuts Nantucket Memorial Airport, was taken by eminent domain but the seizure of the property relied on shoddy records and a poor attempt to find the parcel's proper owner, according to yesterday's Supreme Judicial Court decision.

"As a matter of fundamental fairness, a town cannot take property, declare the owner to be unknown, and only then investigate whether there is anyone to whom damages can be paid," Chief Justice Margaret Marshall wrote.

It may not have been the only land to evaporate from town tax records long ago. "Some parcels of property simply dropped off the tax rolls in the 1920s and 1930s, particularly in the Surfside area of the town," Marshall wrote.

Another case, filed last year by a couple making similar allegations, may hinge on yesterday's decision, according to court documents.

Because the town took the land nearly 40 years ago, witnesses and documents the town needed in the case were long gone, town counsel Paul DeRensis said yesterday in a telephone interview. "Cities and towns and municipalities need to keep records and know where they are," he said. "We had nothing to work with."

The case decided yesterday was first filed in 2001 in Nantucket Superior Court, when William Devine claimed he was the true title-holder to a piece of land in the Nobadeer section of Surfside, just south of the airport. In 1923, the property was deeded in a will to Lewis Popham Carmer. For unknown reasons, the lot was removed from the town's tax rolls and listed as "owner unknown."

Fast forward to 1968, when the Nantucket Airport Commission voted to acquire the property by eminent domain. The town barely made any attempt to find Carmer, the real owner, beyond checking its own flawed tax records, Marshall said, affirming an earlier Nantucket Superior Court decision by Judge Daniel Ford.

But Devine, a genealogist, found Carmer. Devine's business was to find heirs to land who might be able to assert a claim where there was a defective title. He reached Carmer and offered him a joint proposal to profit off any claims, but Carmer just sold the land to Devine's attorney for $7,500 in 1985. The town started assessing taxes.

After that, the land was transferred to Devine, who put the land into a trust that began, in 2001, excavating to build a house. But the town claimed it owned the land, filled in the plot, revoked the building permit and moved the airport fence so it included the property, according to the SJC decision.

Cape Cod Times, Hyannis MA: http://www.capecodonline.com