February 17, 2021
Nahant Board of Selectmen
Nahant Town Hall
334 Nahant Road
Nahant, MA 01908
Attn: Anthony Barletta (firstname.lastname@example.org)
Re: Nahant Preservation Trust, Inc., et al. and the Town of Nahant v. Northeastern University, C.A. No. 1977-cv-01211 and Northeastern University v. Nahant Preservation Trust, Inc. et al. and The Town of Nahant, C.A. No. 1977-cv-01503
Dear Members of the Board of Selectmen:
I write in response to your letter dated February 3, 2021, which I received from Nahant Town Administrator Tony Barletta on February 9, 2021. My response outlines several level-setting points, and suggests ground rules for proposed mediation.
Land Court Jurisdiction over Registered Land
Your letter refers to a hearing in the above cases held before an Essex Superior Court Judge on January 26, 2021. As you may know, during that hearing, Northeastern’s counsel advised the Court that certain threshold jurisdictional issues needed to be resolved before the Superior Court could proceed.
Chief among these is the lack of Superior Court jurisdiction over the Town’s dedication claim because Northeastern’s property is registered land. Any lawful easement over or encumbrance of Northeastern’s land would have to be recorded in the Land Court and reflected in the certified title to the property. An examination of the Land Court records and Northeastern’s certified title to its land reveals that the town of Nahant does not hold any easement or encumbrance relating to Northeastern’s land, other than the access easement to Lodge Park. Therefore, any claim by the town and Nahant Preservation Trust related to Northeastern’s land would have to be decided by the Land Court.
Northeastern has categorically denied any such dedication. And, as noted above, Northeastern would like to proceed to have the Land Court Judge resolve that issue as quickly as possible because resolution of the Town’s dedication claim will effectively resolve the entire case. If there has been a dedication, Northeastern will not be able to proceed with its project. If not, Northeastern will be able to proceed.
Most recently, the Chief of the Trial Court has designated a Superior Court Justice to serve as a Justice of the Land Court for this matter; this appointment will enable the designated Justice (who heard this matter on January 26, 2021) to consolidate both the Superior and Land Court matters under his management. This development works to the benefit of all parties in this matter because this particular judge will be able to handle all pending matters in this case much more quickly than if this case followed the traditional Superior Court process.
Nahant’s Rejection of Bench Trial
With respect to timing, we all recognize that a jury trial of the above matters—to the extent one is needed—may be several months away. Therefore, the Superior Court judge specially designated to hear the consolidated matters has offered to conduct a bench trial of this matter if the parties agree to forego a jury. Northeastern is willing to proceed to trial without a jury because it would result in a resolution of all of the issues within a much shorter period of time than if we, collectively, insisted on a jury trial. Counsel for the Town and the Nahant Preservation Trust parties have advised the university’s counsel and the Court, however, that they will not agree to a bench trial and, instead, will continue to seek a jury trial.
Mediation Regarding Alternatives
The designated judge also suggested that the parties consider attempting to mediate the cases. Your letter requests that Northeastern consider mediating—which the university is fully willing to do.
However, Northeastern would like to address a suggestion in your letter that it has failed previously to publicly present its consideration of alternative areas on its property as a site for the project. For example, your letter states “[w]e have seen renderings and discussions in documents produced by Northeastern in the litigation that show Northeastern considered construction of the Coastal Sustainability Institute at various other East Point locations, or elsewhere.”
As you know, Massachusetts Environmental Affairs Secretary Kathleen Theoharides certified last June that Northeastern’s Final Environmental Impact Report properly complies with the Massachusetts Environmental Policy Act. As part of MEPA review, Northeastern was required to present and discuss alternatives to the project. Northeastern did so. Those alternatives and the many reasons that they are objectively unacceptable are detailed in the voluminous MEPA filings Northeastern made. These exceptions include: prohibitions on building in a state wetlands area, conflicts with the Town’s wetlands bylaw, location in a 100-year floodplain, projected costs in the estimated tens of millions to excavate buried bunkers behind the existing Edwards building, and conflicts with the town’s zoning rules that would require variances the Town is legally prohibited from granting in advance.
Further, as you also know, in December 2018, Northeastern’s architect, at a well-attended public meeting at Nahant Town Hall, made a presentation of various alternatives for the project and provided an explanation of why the current plan is the most feasible and most environmentally sensitive alternative. The current design, as detailed recently in a communication to town residents, has been reconfigured to mitigate substantially any visual impacts from Nahant Road, place mechanical systems underground, now features a “green roof” and several walls covered by vegetation, and is substantially obscured by vegetation in winter and summer months when viewed from Lodge Park.
Given this history, Northeastern does not understand what alternatives the Town would like to discuss further. While Northeastern is willing to consider other alternatives the Town might want to present, it does not believe that a mediation which simply focuses on alternatives already considered and rejected for important environmental and feasibility concerns would be productive.
Accordingly, to the extent the Town has specific new alternatives it wishes to discuss which are different from prior alternatives that have been publicly disclosed and discussed, whether in the context of a mediation or otherwise, Northeastern would ask that the Town provide those now. Northeastern is and certainly always has been willing to consider anything new that the Town wants to propose, but believes such alternatives should be presented by the Town prior to the mediation so that any mediation can focus on the new alternatives and not be a rehash of prior alternatives and discussions.
Offer to Delay Conservation Commission Review and Town’s Eminent Domain Action During Mediation
Your letter also requests that Northeastern consider withdrawing its Notices of Intent or holding them in abeyance from the Conservation Commission’s review during the time a mediation or further settlement discussions would take place. Assuming the Town has some specific new proposals it wishes Northeastern to consider and discuss, Northeastern is certainly willing to consider holding its NOI for the project in abeyance. To be clear, however, Northeastern will not hold its NOI for the seawater intake upgrade and repairs in abeyance as that project must go forward whether or not the expansion project proceeds.
Just as the Town is asking Northeastern to suspend its NOI process for the project during the time the Town and Northeastern are engaged in a mediation or settlement discussions, Northeastern asks the Town to refrain from pursuing any process or effort to take Northeastern’s property by eminent domain—including presenting a warrant article for a taking at the upcoming Annual Town Meeting to be held in April 2021.
Obviously, the threatened taking is completely inconsistent with the Town’s stated position that it already has an easement by dedication over the area of the proposed project and that, as such, Northeastern is prohibited from moving forward with the project. The Town professes to be confident in its position that Northeastern made a clear and unequivocal dedication of its property to the public more than 50 years ago. In the spirit of reciprocity, we agree to refrain from pursuing the activities outlined above if the town ceases any pursuit of eminent domain activities while the parties mediate.
In any event, foregoing further efforts to make a very costly and legally questionable taking of Northeastern’s property—property the Town claims it already “owns”—would seem of little detriment to the Town. Moreover, as the Board is well aware, Northeastern has offered to place a conservation restriction for free and without delay on 90 percent of the area Selectmen seek to take by eminent domain once the project has been completed.
On the other hand, ceasing to threaten the exercise of eminent domain would be a clear demonstration of the Town’s desire to seek in good faith a mutually agreeable resolution of the issues. For the Town to invite Northeastern to enter into a mediation while it continues to brandish the threat of eminent domain seems contradictory to any effort to craft a mutually agreeable “win-win” resolution.
Assuming we can come to an understanding on the above matters, our counsel will discuss with the Town’s counsel the particulars and timing of a mediation or further settlement discussions.
I look forward to your response.
Ralph C. Martin III
Senior Vice-President and General Counsel