Under a Massachusetts statute, local redevelopment agencies have the power to respond to “decadent, substandard, and blighted open areas” either by creating an urban renewal project (redeveloping an area pursuant to a “detailed” and “comprehensive” plan; the statute expressly includes the power of eminent domain for urban renewal projects), or by a “demonstration” development (a term not defined by the statute, and therefore lacks an express delegation of eminent domain power).
In Cobble Hill Center LLC v. Somerville Redev. Auth., No. SJC13028 (Apr. 22, 2021), the Supreme Judicial Court addressed an issue left open the last time it dealt with the power of redevelopment agencies: do they have the power to take property by eminent domain when they choose to undertake a “demonstration?”
Cobble Hill had intended to do its own private redevelopment on its vacant property in Somerville, Massachusetts. But due to some internal disputes, construction never began and its permits lapsed. The Somerville Redevelopment Authority adopted a “Demonstration Project Plan” as part of its wider revitalization plans for the area. Part of that demonstration included taking the property from Cobble Hill by eminent domain by quick-take.
Cobble Hill sued, arguing that the SRA lacks the power to take property for demonstration projects. The trial court disagreed, concluding that the property could be taken, and after Cobble Hill appealed, the SJC transferred the case on its own motion.
Reviewing the language of the statute, the SJC concluded that the language is plain, and includes the power of eminent domain to carry our “any of” a redevelopment authority’s actions. Slip op. at 9. The court rejected the property owner’s argument that the statute’s declaration of the purpose of redevelopment agencies does not expressly include the power to take property when the agency chooses to do a demonstration project and not an urban renewal project. The statement of purpose, the court concluded, “is not a comprehensive restatement of the act.” Slip op. at 11.
And don’t take the legislature’s silence so seriously either, the court held. That the legislature expressly included the power of eminent domain when an agency is redeveloping by an urban renewal plan does not mean it didn’t also want to delegate the power of eminent domain for demonstrations, but just didn’t say so.
The court also rejected the argument that the demonstration project wasn’t really a demonstration project, but was a “run-of-the-mill” urban renewal project that was not included in an urban renewal plan. Slip op. at 14. Although the statute does not define “demonstration,” it means a “proof of concept.” In short, a test project. Slip op. at 17.
The court rejected Cobble Hill’s argument that okaying this means that nearly anything can be deemed a “demonstration” and that as a consequence agencies can avoid the usual rigors and requirements of “urban renewal projects” by calling things “demonstrations.” This project was to test out a new or improved means of eliminating blight:
Cobble Hill next contends that the plan “does not identify any ‘methods or techniques’ that it is demonstrating.” We do take seriously Cobble Hill’s concern that the SRA cannot simply circumvent the rigorous urban renewal plan requirements by labeling a plan a demonstration or “innovative.” An ordinary taking to construct a municipal public safety building, however described, would not qualify as a demonstration; meeting an expected community need in an established manner, while important, does not fall under the definition of a demonstration. But that is not the case here. The plan, albeit by no means comprehensive, contemplates the successful integration of a public safety complex with private development and nearby public transit in order to serve identified community goals. The SRA describes its plan as a “unique combination of uses proposed” on a single site that will require a new level of collaboration between the SRA, the city, the community, and developers. Whether or not it is entirely unique, there appears to be sufficient novelty in the integration of a public safety complex and private development on a single site to create a “mixed-use, transit-oriented” district to constitute a demonstration project under § 46 (f).
Slip op. at 22.
Oh really? If that’s the case, then why did the court note that future demonstration projects should not be held to the loose standards applied to this project? Slip op. at 23 (“We do, however, emphasize in closing that future demonstration plans pursuant to § 46 (f), which will be undertaken with the benefit of this opinion and the definition therein, should identify with more specificity the unique or innovative nature of the demonstration, the difference in or improvement of the means used, and the manner in which reporting of the demonstration will be useful as a model for future plans.”). Weird.
Finally, the court upheld the statute against a constitutional challenge. Relying on Kelo, the SJC concluded that the taking for blight elimination was for a public purpose, and that the statute sufficiently defines those purposes. And in what appears to us to be a case of logical bootstrapping, the court held that because the project was a demonstration (and was to test a new or improved means of addressing blight), the taking was for a public purpose. Nice how it all comes together, no?
Cobble Hill Center LLC v. Somerville Redev. Auth., No. SJC13028 (Mass. Apr. 22, 2021)