Opinion
No. 11–P–1512.
2012-11-21
SORENTI BROTHERS, INC. v. COMMONWEALTH.
By the Court (CYPHER, GRAINGER & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from a Superior Court jury's award of damages to Sorenti Brothers, Inc. (Sorenti), for takings by eminent domain in connection with the Sagamore flyover project, which affected its properties in Bourne. The Commonwealth argues that, as matter of law, Sorenti was not entitled to damages for the loss of access of a parcel containing a Shell gasoline station (Shell parcel) to the rotary, and that the judge's instructions on this point were legal error. The Commonwealth also argues that Sorenti was not entitled to restoration damages for the Commonwealth's use of an undeveloped commercially zoned parcel during construction of the flyover. The Commonwealth asks that we vacate the judgment and remand the case for a new trial. We affirm.
Background. Sorenti's two properties, the Shell parcel and the undeveloped, commercially zoned parcel (undeveloped parcel), both proximately located adjacent to the Sagamore rotary, were affected when the flyover project eliminated the Sagamore rotary and extended State routes 3 and 6 over the Sagamore bridge by constructing a new limited access highway. As a result, Sorenti's parcels lost the access they formerly had to the network of public ways connected to the rotary. Sorenti filed a complaint in the Superior Court in September, 2006, seeking severance damages caused by the elimination of access to the rotary network, asserting that the loss of access caused a significant loss in the value of the property not taken. After a nine-day trial, the jury returned a verdict for Sorenti awarding damages of $4,150,000. Subsequently, judgment entered for $2,488,592,
This amount reflects a deduction from the verdict for the previous pro tanto payment.
1. The Shell parcel. On appeal, the Commonwealth maintains that the access of the Shell parcel to Canal Street and the public highways was preserved by the relocation of Canal Street, although that access is through a somewhat more circuitous route. The Commonwealth asserts that routinely our courts have refused claims for compensation due to such circuity of access. Sorenti points out that more than access to Canal Street is at issue. At trial, it relied on G.L. c. 81, § 7C. at trial. Accordingly, we must determine the nature and extent of the access issue.
The Commonwealth has described the pretakings rotary network and access to the Shell parcel as follows:
“This property was easily accessible from the rotary. All the major roads in the area-Scenic Highway on the west, Route 3 on the north, and Route 6 to the south-fed into the rotary. Cars traveling on these roads could turn from the rotary onto Canal Street, a state road, or Meeting House Lane, a town road, and then enter the Sorenti property via driveways along the frontages on those ways.”
It is obvious from this description and from inspection of the trial exhibits that the Shell parcel had a unique access to several public ways which was eliminated when the rotary was eliminated.
The Commonwealth asserts that access to the parcels was preserved when Canal Street was relocated, and that Sorenti's complaint merely seeks compensation for the more circuitous access. In support of its position, the Commonwealth cites what it claims is a long-standing principle that “a landowner is not entitled to compensation merely because his access to the public highway system is rendered less convenient, if he still has reasonable and appropriate access to that system after the taking.” LaCroix v. Commonwealth, 348 Mass. 652, 657 (1965). That decision is not dispositive here. There, “[a]lthough a piece of [the plaintiff's] land was actually taken for [a] limited access highway project, neither that taking nor the project itself had any effect whatsoever upon [his] easement of access to Howard Road, the only highway upon which, prior to the taking, his land abutted.” Id. at 656. The court also concluded that G.L. c. 81, § 7C, had “absolutely no relevance to [the plaintiff's] situation.” Id. at 657.
In the present case, access to the rotary and all of its connected roadways abutting the Shell parcel was taken for construction of the limited access flyover. The flyover was constructed as a limited access highway, and the connection of Canal Street to the rotary was eliminated; thus, the Shell parcel was left without access to any public way upon which its land formerly abutted.
Because Canal Street's connection with the system of public ways was eliminated with the rotary, the extension of Canal Street to the Shell parcel did not preserve access to that system of public ways that was replaced with a limited access flyover.
There is no merit in the Commonwealth's repeated assertions that the takings were for land and not access. “Access to a public way is one of the incidents of ownership of land bounding thereon, and this right is appurtenant to the land.” Anzalone v. Metropolitan Dist. Commn., 257 Mass. 32, 36 (1926). While the takings affecting the Shell parcel did not specify a taking of land or easement of access for that parcel, the takings for the flyover eliminated access of the Shell parcel to Canal Street as well as to the rotary system.
Moreover, in the present case, G.L. c. 81, § 7C, is relevant, and was properly advanced and developed by Sorenti as the law of the case throughout the trial. That statute has been construed by the Supreme Judicial Court as follows:
“[General Laws c. 81, § 7C,]
is plain and unequivocal. It clearly provides that if a limited access highway is laid out in the location of an existing public way, the owner of land abutting upon such existing way shall be entitled to recover damages for the taking of or injury to his access to such public way or to such new highway. By these provisions the Legislature plainly established that any impairment or deprivation of access which an owner formerly had to a public way may so affect the value of the remainder of the land not taken as to be compensable in damages to be recovered under c. 79, § 12.” Nichols v. Commonwealth, 331 Mass. 581, 584–585 (1954).
.General Laws c. 81, § 7C, states in relevant part: “If a limited access way is laid out in whole or in part in the location of an existing public way, the owners of land abutting upon such existing public way shall be entitled to recover damages under chapter seventy-nine for the taking of or injury to their easements of access to such public way.”
In this case, the takings for the layout of the limited access flyover in the area of the existing public ways, Routes 3 and 6, and the connections to the rotary, resulted in injury to the Shell parcel for which Sorenti was entitled to recover damages where the impairment of access affected the value of the remainder of the land not taken. Damages were determined in accordance with G.L. c. 79, § 12,
through expert appraisals. The Commonwealth has not challenged the methods or the results testified to by Sorenti's experts.
.General Laws c. 79, § 12, states in relevant part: “The damages for property taken under this chapter shall be fixed at the value thereof before the recording of the order of taking, and in case only part of a parcel of land is taken there shall be included damages for all injury to the part not taken caused by the taking or by the public improvement for which the taking is made.”
The Commonwealth has not advanced any arguments beyond its bare assertions that it was error of law to apply c. 81, § 7C, and that the judge's instructions were legal error. Contrary to these assertions, the judge properly ruled that c. 81, § 7C, applied in this case. The judge's instructions were based on that statute and Instruction 10.3.12 of the Massachusetts Superior Court Civil Practice Jury Instructions (Mass. Cont. Legal Educ.2d Supp.2011). The judge rejected the Commonwealth's several requests for law and instructions based on its mistaken view of the case as one of circuity of access. There was no error.
2. The undeveloped parcel. This parcel was taken temporarily for use as commuter parking during the construction of the flyover. To use this parcel, the Commonwealth first removed unsuitable materials from the site, constructed a retention basin, catch basins, and installed piping; then added clean material, graded the site, and installed the parking lot features. At the end of the temporary use, the Commonwealth removed most of the above ground structures, but left the subsurface structures in place.
Asserting that it was error to allow Sorenti to recover for the removal of the remaining structures and associated restoration costs, the Commonwealth does not cite evidence of the nature of those costs or the amounts it disputes. This assertion does not constitute proper appellate argument and we do not consider it. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). The Commonwealth also asserts that certain improvements it made added value to the parcel, and that the judge refused to allow testimony on the value added. The Commonwealth acknowledges that the judge ruled that the proposed testimony was untimely and based on hearsay. We have reviewed the lengthy and detailed discussion of these issues in Sorenti's brief at pages eleven through eighteen and forty through fifty, and conclude that the Commonwealth fails to show that the judge erred or abused his discretion in disposing of these issues.
Sorenti's request for costs on appeal is denied.
Judgment affirmed.