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KeywordsEminent Domain, Validity of taking, Right to damages. Statute, Construction. Practice, Civil, Attorney’s fees, Costs, Interest, Frivolous action

In  Said A. Abuzahra v. City of Cambridge,  the Supreme Judicial Court yesterday addressed the issue of whether a property owner can accept a pro tanto offer and also challenge the validity of the taking.  A Superior Court judge had denied the plaintiff’s request for an order that the City pay the pro tanto.  Reversing the Superior Court, the SJC held that accepting a pro tanto award does not result in a waiver of a claim challenging the validity of the taking.

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[Excerpt]  –   The issue presented is whether G. L. c. 79, the so-called “quick take” statute, permits a property owner to both accept a pro tanto payment for an eminent domain taking and simultaneously challenge the lawfulness of that taking.[2] Under c. 79, once a taking authority records an order of taking, the authority generally must tender a payment pro tanto to the property owner.  G. L. c. 79, § 8A.  However, the statutory framework is silent as to whether the acceptance of the pro tanto payment by the property owner precludes a challenge to the validity of the taking.

The plaintiff argues that the defendant city of Cambridge (city) must immediately tender him the full amount of the pro tanto payment, along with accrued interest since the time of taking, because G. L. c. 79 as it is currently written does not condition his acceptance of the pro tanto payment on waiving his right to challenge the taking of his real property.  The city disagrees, arguing that the statutory framework and case law prohibit a property owner from accepting a pro tanto payment so long as the property owner pursues a claim challenging the lawfulness of the taking.  According to the city, if the plaintiff challenges the taking, which is his statutory right, then he will have neither his property, which has been taken pursuant to the quick take statute, nor the pro tanto amount.

We conclude that G. L. c. 79 permits the plaintiff to both accept a pro tanto payment and simultaneously challenge the validity of the underlying taking.  We do so because of the enormous power that the quick take statute provides, which immediately transfers ownership of the property from the property owner to the taking authority independent of judicial processes; the clear requirement of a pro tanto payment; and the absence of any statutory provision waiving pro tanto payments when the taking itself is challenged.  Therefore, we affirm the order by a single justice in the Appeals Court, vacating a decision by a Superior Court judge that denied the plaintiff’s motion to compel payment of the pro tanto amount, and we remand the matter to the Superior Court for further proceedings consistent with this opinion.

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