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UPDATE: Mass. High Court Takes Plaintiff Out of Game, Upholds Boston’s Transfer to Red Sox of Easement Rights Next to Fenway Park

In my post last week on Pishev v. City of Somerville (pdf), I mentioned that the Supreme Judicial Court (SJC) would be soon deciding another important urban renewal case, Marchese v. Boston Redevelopment Authority. It turns out “soon” was the next day.

In its September 13, 2019 decision (pdf) in Marchese, the SJC upheld actions taken by the Boston Redevelopment Authority (BRA) with respect to what is known as a “demonstration project” under the provisions of M.G.L. c. 121B, section 46(f). This case focused on a permanent taking by the BRA of easement rights in Yawkey Way (now known as Jersey Street), and the transfer of those easement rights to the Boston Red Sox for so long as baseball games are played at Fenway Park.

The plaintiff, Marchese, challenged the taking and the conveyance, alleging that the area was not blighted and therefore urban renewal powers should not have been used. Marchese further claimed that any conveyance of the easement rights should have gone out to bid under the provisions of the state’s Uniform Procurement Act, M.G.L. c. 30B.

The SJC ruled that Marchese didn’t have standing to challenge the BRA’s taking and conveyance of the easement rights. Finding that he didn’t own the land or possess any other rights in Yawkey Way, the court ruled that Marchese’s claim that he would have had the right to bid under Chapter 30B was too speculative, and that the BRA didn’t owe him any legal duty.

The SJC went on to analyze the exemption for urban renewal plans found in Chapter 30B, section 1(b)(25), and determined that the demonstration project plan that the BRA approved for the Yawkey Way taking under Chapter 121B, section 46(f) qualified for that exemption. The court focused on the wording of the exemption and found that the Legislature’s intent was to include within the exemption not only urban renewal plans under Chapter 121B, section 1, but also demonstration projects approved under section 46(f).

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About this Author

Paula M. Devereaux Partner Boston Commercial Real Estate Law Real Estate Land Use Environmental
Partner

Paula Devereaux is an experienced commercial real estate and land use attorney, focusing her practice on development, zoning, permitting, planning, and environmental regulatory compliance. Paula serves as real estate counsel for a number of clients in the Greater Boston area, ranging from smaller organizations to large corporations, medical centers, retailers, and real estate firms. She regularly advises clients on Boston permitting matters, waterfront development issues, and in sales, acquisitions, and financings.

Paula is active in the real estate community, serving in leadership...

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