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If a city takes your property, it has to pay you for it right away, even if you sue to get the land back, court rules

The Supreme Judicial Court ruled today that Cambridge has to pay the owner of a long abandoned and boarded-up apartment building $3.7 million even as he continues to fight to get the property back, under a state eminent-domain law drafted with the acknowledgement of the "sudden and heavy financial burdens" such land takings can have on property owners.

The ruling is a victory for Said Abuzahra, whose 0.65-acre property on Bishop Allen Drive in Central Square the city took in 2016, after a city council fed up over the blighted property agreed to take it by eminent domain, raze the derelict buildings and put up affordable housing.

The city set aside $3.7 million for what it claimed was the property's fair-market or "pro tanto" value - a value set without any consultation with the property owner - but refused to write a check to Abuzahra, at first because there were legal questions about just which members of his family owned the property. But even after Abuzahra told the city in 2018 he had resolved that issue and his real-estate concern was the sole owner, the city refused to pay him because he was suing to get the property back, according to the court's summary of the case.

The building in 2019:

The state's highest court acknowledged the seeming incongruity of somebody demanding payment for property he argues he still owns and is fighting to get back - which is why a lower-court judge ruled against Abuzahra - but said the state's eminent-domain law allows such payments:

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.

In fact, the court noted, the law provides for this specific sort of event:

If such person elects to accept the offer as a pro tanto payment, such election shall be without prejudice to or waiver or surrender of any right to claim a larger sum by proceeding before an appropriate tribunal.

The court further noted that, unlike many other government actions, eminent-domain takings can be done almost immediately, without initial judicial review even should the property owner object:

Not only does the taking authority have the power to impose its will on the property owner through eminent domain, but the taking itself is swift and occurs automatically outside of judicial processes. Given this dynamic, the statutorily mandated pro tanto payment ensures that property owners receive some initial recourse following the deprivation of their property, and also incentivizes taking authorities to exercise their significant eminent domain powers with discretion.

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Comments

Amazing.

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18

... that the buildings have already been demolished. Don't know if construction of replacements have bugn yet.

Abuzahra said he wanted to tear the building down and put up a new one as well, so maybe the state can sue to recoup the demo costs if he wins?

I suppose the City of Cambridge could bill the property owner for the demolition and securing of the site should the City lose the suit, but since it was done w/o approval of the previous owner I doubt whether that argument would prevail in court.

The previous owner(s) did actually file multiple plans and even had approvals, but never acted on these. Such is life with a dysfunctional extended family who can't reach a consensus.

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11

Regardless of the merits of the previous property owner's case against the City's taking of his property, this is the right decision.

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21

It's weird how simultaneously you have the BRA/BPDA able to declare 'blight' against perfectly fine properties in the Back Bay and seize them. Meanwhile you have real blight like this building in Cambridge and that other one on Mr Ida where government is stymied from taking it and fixing it up.

Is the issue that there's a lack of profit in fixing real blight? Or is it just the presence of owners motivated to wield the legal system to foul up the process?