SJC rules in favor of landowner in fight with Nantucket airport
Source: South Coast Today, by Denise Lavoie
July 20, 2007
BOSTON — With its ocean views and island charm, home values on Nantucket routinely top $1 million.
So it's no surprise a dispute over a small parcel of land could make its way up to the state's Supreme Judicial Court.
On Thursday, the high court found in favor of a landowner who battled with the town over a 25,000-square-foot parcel near Nantucket Memorial Airport. The court found that William Devine is the rightful owner of the land, despite the fact that Nantucket took the property by eminent domain almost 40 years ago.
The town argued that a ruling in favor of Devine could lead to challenges of other eminent domain takings by cities and towns. But the high court, in finding for Devine, said a municipality's right to take land by eminent domain was not being called into question.
The court, upholding a ruling by a Superior Court judge, blamed the town of Nantucket for not following proper procedures when it took the land in 1968, saying the town did almost nothing at the time to try to find or notify the owner of the property and did not properly log its taking in town records.
"There is considerable force in the policy favoring the finality of takings," Chief Justice Margaret Marshall wrote for the court. "But that policy is outweighed in this case by the necessity of giving adequate notice before effecting an eminent domain taking, and by the importance of maintaining a reliable land recording system."
When the town took the property by eminent domain, it was listed as "owners unknown" on local tax rolls, even though there was an identifiable record owner, Lewis Popham Carmer. At the time, members of the Nantucket Airport Commission wanted to acquire the property — located at the southern end of a runway — in order to prevent construction in that area.
Devine, a genealogist who specializes in finding flaws in land titles and then splitting profits with heirs who make successful claims on the properties, did not do that with the land near the airport. Instead, he bought the property outright from Carmer for $7,500 in 1985.
After the purchase, the town put the property back on its tax rolls, collected taxes from Devine and later issued building permits to him to construct a house.
It was only in 2001, after Devine began excavating the site, that the town sent him a letter saying it owned the property. The town filled in the site, revoked Devine's building permit, issued a stop work order and changed the location of the fence around the airport to include the property.
"This case was really about due process," Devine's attorney, Philip Graeter said. "You have to have notice of what the government is doing and you have to have an opportunity to be heard. The owner of the property in this case had neither."
Nantucket Town Counsel Paul DeRensis said the court's ruling could have an impact on old eminent domain cases in other municipalities.
"There is a message here for all government agencies who do land acquisitions and that is that the keeping of records and the ability to locate those records are very important," he said. "The outcome of this decision, in part, turned on the fact that we could not find witnesses, documents and files from this very old taking."
Another Nantucket family also has been battling the town over land near the airport. Eric Shaw and Connie Mundy paid $1.5 million for a house near the airport four years ago. Two years later, they got a letter from the town, saying the airport had taken the land by eminent domain in 1941 and was the owner of their property. Their lawsuit against the town is pending, and it was unclear how the court's ruling in the Devine case would affect their claim.
Shaw and Mundy did not immediately return two messages left Thursday at their home.
Airport officials said they did not plan to use the land in either case for airport expansion, but had hoped to firmly establish its ownership of the properties.
"Otherwise, it could be interpreted that we are giving away assets of the airport," said Alfred Peterson, the airport's manager.
"When we take money from the federal government, we give them assurances ... and part of that is to make sure we protect the assets of the airport," he said.
The airport, the second busiest in Massachusetts with 270,000 passenger departures last year, is scheduled to break ground this fall on a renovation and addition to its terminal.
