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All means nothing

May 19, 2014

petervickery

What does “all” mean? In eminent domain law the word does not necessarily mean what you might think, according to today’s Supreme Judicial Court’s decision in Sorenti Bros, Inc. v. Commonwealth.  In fact, it can mean “nothing.”  Readers with an interest in takings and damages (e.g. landowners with property along the route of the Tennessee Gas Pipeline Company’s proposed northeast expansion project) may wish to pay particular attention.

The case involved a gas station, the construction of a flyover, and the elimination of a traffic island in Bourne, the town that describes itself as “the gateway to Cape Cod.”

The old road configuration was a boon to plaintiff’s Shell gas station. But the new highway configuration has made it a more difficult — and, therefore, less attractive — place to get to. As part of the flyover project the Commonwealth took part of the plaintiff’s land, bringing the eminent-domain statute into play.  The part of the statute that relates to partial takings provides that the landowner should receive damages for “all injury to the part not taken caused by the taking or by the public improvement for which the taking is made.”

Does “all” include the loss of business that the new road configuration means for the Shell gas station?  The jury said yes, but the Supreme Judicial Court said no.i_want_it_all___queen_by_agynesgraphics-d5zgn11

Because the new layout only renders the route to the gas station “more circuitous” the station’s owner is not entitled to damages. After noting that “luck [of enjoying]… being where the crowd is” does not amount to a right, the Court stated that the “limitations on access… do not approach the severity that has been found to justify damages for impairment of access.” At trial, the judge had instructed the jury that they could award damages for the impaired access, and they arrived at the sum of $4.15 million. The SJC, in contrast, decided that the plaintiff was simply not entitled to damages. From “all” to nothing.

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