A judge yesterday sided with Northeastern University over the town of Nahant, ruling a state law aimed at protecting land set aside for conservation does not apply to the school's plans to expand its Marine Research Land on some long vacant land it owns in the town.
The school and Northeastern are still battling, in a separate suit, over the town's attempt to simply take over more than half of Northeastern's land by eminent domain for roughly $4.5 million.
Northeastern owns a little more than 20 acres on East Point at the tip of narrow Nahant, a former military reservation it bought in 1966 from the federal government. The government put the land up for sale after Town Meeting rejected a plan by town officials to take over the land - on which the military had installed bunkers, large cannons and anti-aircraft guns - for use as a park.
At the time, Town Meeting was not being parsimonious but rather acting on concerns that if the town opened a park on the formerly federal land, it would be open to "any citizen of the United States," or, as the town Conservation Commission chairwoman put it, "then all of Boston, Somerville, Chelsea, etc, [would] occupy it because we would leave this wide open to the world," according to a summary of the case by Essex Superior Court Judge Jeffrey Karp.
This antipathy to people from away would prove to be one of the reasons Karp sided with Northeastern.
When Northeastern announced plans to expand its Marine Research Center on undeveloped land at the site in 2018, nearby residents objected, coming up with the argument that Northeastern had dedicated the land it proposed using for "a public purpose" - for a nature preserve and for passive recreation - and that because they had made such a declaration, they needed a two-thirds vote of the state legislature to do so, under a 1972 ballot initiative.
Northeastern sued in Land Court seeking a ruling it had made no such public dedication of the land.
The Nahant Preservation Trust - a group of 28 Nahant residents - then sued in Essex Superior Court to try to block that; they were later joined in the suit by the town of Nahant, which last year decided that after 50 years it wanted the land after all and moved to take 12 acres of the site by eminent domain.
In his ruling, Karp concluded that Northeastern "has not dedicated, and the public has not accepted, the land on top of and to the east of Murphy Bunker at East Point, Nahant, MA, to the public for use as an ecological preserve and for passive recreation" and that the school never provided an easement for that sort of thing.
Karp also rejected an argument that even without a formal filing, Northeastern had still set aside the land for the "public purpose" of passive recreation by letting Nahant residents walk around the property for decades.
At first blush, this argument may seem persuasive. However, the summary judgment record lacks any evidence that the general public, that is people other than Nahant residents, have used the land in question for passive recreational purposes.
Karp said that while it may be true that Nahant residents have had some freedom to wander the land in question, the Supreme Judicial Court ruled in 2017 that "the general public" as defined by the 1972 law, means "the inhabitants of the Commonwealth and public at large, not just the residents of the particular municipality where the land sits."
Thus, even if Northeastern had a clear and unequivocal intent to dedicate the land in question pursuant to Article 97 [the 1972 ballot initiative], the holder of the easement would be the general public, not the residents of Nahant. In the absence of any record evidence that the general public accepted the purported dedication of the land on top of and to the east of Murphy Bunker for use as an ecological preserve and for passive recreation, the Nahant Plaintiffs' dedication claim fails as a matter of law.
Karp also ruled that the fact that Northeastern wanted to keep much of the land as a "wildlife preserve" was not proof the school was opening the land - for which it hired a groundskeeper with authorization to shoo people away from some areas. Rather, he said, Northeastern was trying to preserve a unique coastal ecosystem for study by its researchers and students. Even aside from that, the state law refers to land used for "one public purpose," and Northeastern was using the land for at least two purposes: Wildlife preservation and education - and education is not a "public purpose" as defined by the law, which the Land Court had ruled in a 2017 case means that the law could not be invoked.
Northeastern has said it will agree to a conservation restriction on roughly eight acres of the site to bar any future development.