The Validity of Eminent Domain Process Taking of Unpaved Roads as “Highways” to Allow Public Beach Access and Land Conservation
In 2000 the Nantucket County Commissioners voted to take sixteen platted, unimproved private roads as public highways without any intention to pave or improve the roadways. Their stated purpose was to provide public beach access and to preserve open space. Some of the roads are nonexistent “paper” ways; some parallel the coastline; and others run perpendicular to the coastline, across the beach, and into the ocean. The highway takings process provides considerable procedural advantages over the process for taking land for park and conservation purposes. It is quicker, has fewer preliminary administrative requirements, and requires a lower vote in town meeting. The affected property owners sued the County, asserting that the meaning of “highway” does not extend to roads, paper or otherwise, that a county does not intend to improve for vehicular access. The County argued that the highway statute granted it broad discretionary power to decide the necessity and extent of a highway taking.
Supporting the property owners, NELF argued that a county could not “end run” the open space eminent domain statutes, which provide greater protection for property owners, by using a highway eminent domain statute designed for a different purpose and containing different safeguards. Agreeing with NELF’s position, the SJC ruled in favor of the property owners, holding that the highway statute authorizes takings solely to facilitate safe and convenient travel through the construction of roadways or the improvement or repair of existing roadways. Since the Commissioners’ objective was plainly not to construct or improve any roadway, the Court concluded that their action was invalid and vacated the takings.
In 2000 the Nantucket County Commissioners voted to take sixteen platted, unimproved private roads as public highways without any intention to pave or improve the roadways. Their stated purpose was to provide public beach access and to preserve open space. Some of the roads are nonexistent “paper” ways; some parallel the coastline; and others run perpendicular to the coastline, across the beach, and into the ocean. The highway takings process provides considerable procedural advantages over the process for taking land for park and conservation purposes. It is quicker, has fewer preliminary administrative requirements, and requires a lower vote in town meeting. The affected property owners sued the County, asserting that the meaning of “highway” does not extend to roads, paper or otherwise, that a county does not intend to improve for vehicular access. The County argued that the highway statute granted it broad discretionary power to decide the necessity and extent of a highway taking.
Supporting the property owners, NELF argued that a county could not “end run” the open space eminent domain statutes, which provide greater protection for property owners, by using a highway eminent domain statute designed for a different purpose and containing different safeguards. Agreeing with NELF’s position, the SJC ruled in favor of the property owners, holding that the highway statute authorizes takings solely to facilitate safe and convenient travel through the construction of roadways or the improvement or repair of existing roadways. Since the Commissioners’ objective was plainly not to construct or improve any roadway, the Court concluded that their action was invalid and vacated the takings.
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