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Jessica G. Kelly and Daniel C. Johnston draft influential amicus brief for SJC’s landmark Sudbury v. MBTA ruling

On Tuesday, September 22^nd, 2020, Massachusetts’ highest court unanimously affirmed the Land Court’s dismissal in Sudbury v. MBTA. In doing so, the Supreme Judicial Court (SJC) held that the prior public use doctrine – which requires legislative approval before public land can be divested for an inconsistent public use – is inapplicable when land owned by a public entity is conveyed to a private entity for a different use.

Last September, Sherin and Lodgen attorneys Jessica G. Kelly and Daniel C. Johnston, along with the NAIOP Amicus Brief Advisory Committee, drafted an amicus brief on behalf of the commercial real estate industry, which the SJC cited as influential in its landmark decision.

The brief, filed on behalf of NAIOP, the Real Estate Bar Association (REBA), and the Abstract Club, urged the SJC to uphold the Land Court’s ruling because of the uncertainty and hardship that would result if a public agency was required to obtain legislative approval every time it conveyed an interest in public land to a private entity for a new use.  The amici provided several examples of important public / private partnerships, such as recent development projects that created much needed affordable housing and leases of public land to solar energy companies to generate clean energy.  The Court noted these examples and quoted the amicus brief in holding that the Town’s request to extend the common law prior public use doctrine to public/private transactions would “lead to numerous deleterious consequences” including “making development involving public land or rights therein far less attractive to the private sector than it is today.”

Jessica is partner in the firm’s Litigation Department and chair of its Pro Bono Practice Group. Daniel is an associate in the firm’s Real Estate Department.

NAIOP Massachusetts, the Commercial Real Estate Development Association, represents the interests of companies involved with the development, ownership, management, and financing of commercial properties. NAIOP’s close to 1,700 members are involved with more than 240 million square feet of office, research & development, industrial, mixed-use, retail, and institutional space, as well as over 50,000 apartment units in the Commonwealth, valued at around $40 billion.