In its decision issued last week in Sorenti Bros., Inc. v. Commonwealth, the Supreme Judicial Court (SJC) ruled that a gas station owner is not entitled to eminent domain damages due to the elimination of the rotary at the foot of the Sagamore Bridge in Bourne.  The owner claimed that the so-called “flyover” project impaired its access to the road system and thereby lowered the value of its property.  The Superior Court allowed the owner to introduce evidence of damages due to impairment of access based on two statutes:  M.G.L. c. 81, §7C, the limited access highway statute; and M.G.L. c. 79, § 12, the eminent domain statute governing damages when only part of a property is taken.  The jury returned a verdict for $4.15 million.  After deducting the $1.7 million “pro tanto” amount previously awarded to the owner, and adding interest and costs, the final judgment was about $3 million.  The Commonwealth appealed and the Appeals Court, in an unpublished decision, affirmed the judgment.  The SJC granted the Commonwealth’s application for further appellate review on the issue of impairment of access damages, reversed the judgment, and remanded the case to the Superior Court for a new trial.  [Editor’s note:  the author of this post was trial and appellate counsel for the Commonwealth in Sorenti].

Before the flyover project, the owner’s gas station abutted a state road called Canal Street, and a town road called Meetinghouse Lane, both of which fed directly into the nearby Sagamore rotary.  As part of the project, the Commonwealth extended Routes 3 and 6 over the Sagamore Bridge by constructing a new limited access highway over the former rotary.  The Commonwealth also eliminated the portion of Canal Street abutting the gas station to the west, and relocated Canal Street to pass along the southern boundary of the gas station parcel.  The part of Canal Street that was eliminated then became part of a new commuter parking lot.  Below is a “before and after” plan showing the former rotary and the new traffic pattern.before and after taking

As a result of these changes, the gas station had the same number of access points to public streets as before the project, but with the elimination of the rotary and part of Canal Street, the station’s access to Routes 3 and 6 became longer and somewhat more circuitous.  The owner claimed it was entitled to compensation under two different statutes for the loss in value to its property. 

First, the owner claimed it was entitled to damages under Chapter 81, § 7C, because the flyover project eliminated the part of Canal Street that the gas station previously abutted.  The owner claimed it was entitled to compensation under this statute even though the limited access highway was built over the former rotary and not on any part of Canal Street.  The SJC rejected this claim, ruling that, given the wording of the statute, for a property owner to recover damages due to the construction of a limited access highway, the highway must be built in whole or in part over the same public way on which the owner’s property fronts or abuts.  Because the new highway was not laid out within Canal Street or the other abutting public way, the owner has no claim under Chapter 81, § 7C.

Second, the owner claimed it was entitled to damages under Chapter 79, § 12 because, as provided by that statute, an owner is entitled to “all injury to the part [of the owner’s property] not taken caused by the taking or by the public improvement for which the taking is made . . . .”  The SJC rejected this claim too, ruling that the owner was not entitled to damages because the owner still had “reasonable access” from both abutting public ways.  The SJC observed that “not every detrimental effect of a public improvement project qualifies as a compensable injury,” and that “a landowner is not entitled to compensation merely because his access to the public highway system is rendered less convenient.”   The court noted that the owner in essence was seeking damages because “the public roads are not configured in the same manner as they were before the flyover project.”  The SJC concluded that, as a matter of law, the more circuitous route to and from the new highway does not rise “to the level of a substantial impairment that could be found to entitle” the owner to damages under Chapter 79, Section 12.  In so ruling, the court affirmed an 1892 opinion written by Justice Oliver Wendell Holmes, in which the court stated: “‘the advantage which the landowner had [of having] the luck to enjoy . . . being where the crowd was’ is not compensable injury.”

We will follow this case on remand and report on the outcome in a future post.