Petition for Writ of Certiorari — Hanna v. Massachusetts Turnpike Authority

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managed by the respondent's real estate development

department. (See App. 61-63).

By June 1994, URS published the final HOV study

that also included the findings and conclusions of the

separate Park & Ride study. The published study con-

cluded that the Park & Ride program proposed by the

respondent would have the same impact on air quality as

the construction of an HOV lane and would cost less.

(App. 56-60).

The respondent, as distinguished from URS, opined in

the published HOV study that it would remove 1,170

vehicles from the Turnpike by providing express bus

service and Park & Ride lots to Turnpike commuters

because the users would park in the lots and commute to

Boston in another transportation mode.’ (App. 59). In

support of this opinion, the respondent proposed to acquire

and construct Park & Ride lots in proximity to various

interchanges along the Turnpike. It planned to locate the

largest lots in Framingham, Natick, and Weston, Massa-

chusetts.’

The respondent and URS were aware of an ongoing

commuter rail development from Worcester, Massachusetts,

* Park & Ride transportation modal urage identifies commuters

who after parking their vehicle would continue their commute to their

final destination through either bus usage, van pooling, or car pooling.

* The respondent's studies forecasted that the Framingham,

Natick, and Weston locations would remove 950 vehicles destined for

Boston from the Turnpike, 85% of the projected total of 1,170 vehicles.

Framingham, Massachusetts is located 22.6 miles west of Boston;

Natick, Massachusetts is located 17.8 miles west of Boston; and

Weston, Massachusetts is located 10.7 miles west of Boston. Framing-

ham and Natick are outside the study area for DEP Regulation 310

C.M.R. 7.37.

to Boston, Massachusetts, that ran parallel to the Turn-

pike corridor before it published the final HOV study. The

respondent was also aware that the commuter rail would

have a positive affect on air quality standards because it

projected 2,550 riders and the removal of vehicles destined

for Boston from the Turnpike. Additionally, it totally

eliminated any demand for bus service in the Turnpike

corridor. Furthermore, the respondent and URS were

aware its technical stud’ 1s clearly demonstrated that the

actual Park & Ride modal usage was substantially lower

than the modal usage it utilized in support of its projec-

tions. Despite the findings of its own technical studies and

the ongoing commuter rai] development, the respondent

bootstrapped its projections for Park & Ride demand by

implying that it would provide newly scheduled express

bus service in the Turnpike corridor.

The respondent chose the locus for a Park & Ride

facility based on its claim that a parking lot located there

would remove 250 vehicles from the Turnpike. (See App.

61-62). It chose this location without a public hearing’ or a

vote of its Board of Directors and despite URS’s suggestion

of another location in Framingham.

Under its taking order, the respondent stated that it

took the locus to develop a commuter parking lot for the

safe and efficient operation of the turnpike for compliance

with the provisions of the Clean Air Act and DEP regula-

tion 310 C.M.R. 7.37. (See App. 47). The respondent has

* For example, respondent projected 70% of Park & Ride users

would take a bus to Boston while the findings of its Park & Ride survey

indicated that only 24.8% of users had an interest in tak’xg a bus.

* The trial court found that the respondent did not have a practice

of conducting public hearings prior to eminent domain takings. (App. 7)

never produced the provisions of the Clean Air Act that the

taking order references at any point during this litigation.’

Additionally, DEP regulation 310 C.M.R. 7.37 did not

instruct the respondent to acquire or construct parking

lots, but merely to conduct a study and to submit a report.

It did not recognize that Park & Ride lots were HOV

incentives, nor did it authorize the respondent to substi-

tute projects.

The respondent did open a Park & Ride lot on the

locus after the taking. An average of 14 cars a day have

utilized this lot throughout the litigation, but only one

user was a newly created Park & Ride driver. The respon-

dent, however, made no effort to provide the express bus

service required for the Park & Ride program to succeed.

(See App. 64-67). Additionally, the respondent failed to

construct the program’s proposed Park & Ride lots in

Natick and Weston.

In 1997, Boston Properties, Inc. initiated an agree-

_.ment with the respondent to develop the Loop Ramp

Parcels into a hotel office park and to utilize the locus as

the gateway. (See App. 61-62). In 1998, the respondent

entered into that agreement.

On August 1, 1997, the petitioner filed an action in

Middlesex Superior Court. The petitioner specifically

alleged a violation of the Fifth Amendment to the United

States Constitution in the first count. (App. 42). The

respondent moved to dismiss the case because the com-

plaint failed to state a claim upon which relief could be

granted and the trial court granted the respondent’s

* No representative for the respondent could identify the Clean Air

Act referenced in the order of taking.

motion. On May 12, 1998, the petitioner appealed and the

Massachusetts Appeals Court granted the appeal by

reinstating the counts that alleged the taking violated the

Fifth Amendment and was in bad faith.’

Subsequently, in the trial court, the respondent moved

for summary judgment at the conclusion of discovery. On

May 16, 2003, the Middlesex Superior Court granted the

respondent’s motion because the petitioner could not

“prove that the sole or dominant purpose was anything

other than the stated purpose.” (See App. 5). The court

stated it found no evidence in the record that would

support a claim that the taking was for an improper

purpose. (See App. 6-8). In reaching its conclusion, the

court gave complete deference to the respondent's decision

to take the locus. (See App. 5-8). Additionally, the court

failed to consider the petitioner’s evidence that demon-

strated the respondent’s public purpose did not have a

rational basis. Furthermore, the petitioner’s evidence that

attacked the credibility of the respondent's stated public

purpose did not persuade the court that the facially valid

public purpose was a pretext for an improper purpose.’

(See App. 6).

The petitioner appealed on June 19, 2003, and the

Massachusetts Appeals Court affirmed the lower court's

decision on December 23, 2004. (See App. 2-3). The petitioner

” See HTA Limited Partnership v. Massachusetts Turnpike Author-

ity, 51 Mass. App. Ct. 449 (2001).

* The petitioner presented evidence that the Park & Ride lot was

severely underutilfed and that the expert's opinion for the petitioner

contradicted the methodology and conclusions of the respondent's

studies, in addition to the evidence that the respondent failed to comply

with its own requirements for the parking lot success.

then filed a Petition for Reconsideration to the Appeals

Court on January 19, 2005, which the court denied on

April 25, 2005. (App. 14-15). Finally, the petitioner filed for

further appellate review, restating his rights under the

Fifth Amendment, on January 20, 2005. (See App. 46). The

Massachusetts Supreme Judicial Court denied the peti-

tioner’s application on June 9, 2005. (App. 16).

REASONS FOR GRANTING THE PETITION

I. This case presents an issue of significant

importance because the lower courts have ap-

plied different standards in reviewing eminent

domain takings for a facially valid public pur-

pose under the Public Use Clause of the Fifth

Amendment.

The individual’s right to hold private property is

sacred and is necessary for a free government.’ But the

power to take private property through eminent domain is

“essential to a sovereign government.”” When a sovereign

takes an individual's private property through its exercise

of eminent domain, these two fundamental principles

clash and only one can prevail. Our founding fathers

recognized this tension and drafted the Fifth Amendment

to the Constitution to protect the individual's property

rights and to limit the sovereign’s power.”

* Wilkinson v. Leland, 27 U.S. 627, 634 (1829).

” United States v. Carmack, 329 U.S. 230, 236 (1946).

" See Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. 166,

177 (1871) (Court has always understood that the Fifth Amendment

was adopted to protect the rights of the individuals from governmental

intrusion).

This Court has developed its interpretation of the

Public Use Clause of the Fifth Amendment to limit the

sovereign’s eminent domain power by restricting constitu-

tional takings to those with a proper public purpose.” The

Court has also recognized that an eminent domain taking

will not pass constitutional muster if it is either for a

purely private purpose or under a pretextual public

purpose.” The Court, however, has yet to state clearly a

standard of review to determine whether the facially valid

public purpose posited for a taking is a pretext for an

improper purpose. This case now presents the Court with

the opportunity to establish that standard of review.

The state courts and the lower federal courts are in

need of guidance from this Court to determine what

constitutes a pretextual public purpose under the Public

Use Clause because neither has developed a clear stan-

dard of review. A few lower federal courts have suggested

that the Public Use Clause will not support an eminent

domain taking under the pretext of a facially valid public

" See Kelo v. City of New London, 125 S.Ct. 2655, 2671 (2005)

(O'Connor, J., dissenting) and 2678 (Thomas, J., dissenting).

" See id., at 2661; Hawaii Housing Authority v. Midkiff, 467 U.S.

229, 245 (1984); Cincinnati v. Vester, 281 U.S. 439, 448 (1930) (a

sovereign may not take private property “under the guise” of a proper

purpose).

“ Kelo, 125 S.Ct. at 2675 (O'Connor, J., dissenting) (criticizing the

majority for failing to describe a standard of review for a court to

determine if a public purpose is a pretext for a private purpose). The

Court, however, has suggested that the procedures followed by the

sovereign could be a factor in determining whether a facially valid

public purpose was a pretext for an improper purpose. See id., at 2661-

2662 (dismissing the possibility that the public purpose for the taking

was pretextual because the City of New London executed the taking

pursuant to a “carefully considered development plan”).

purpose.” One court has even invalidated an eminent

domain taking on those grounds.” But none of these courts

has elucidated how it determined whether the facially

valid public purpose was a pretext for an improper pur-

pose.

Additionally, the state courts have not developed a

singular standard of review for pretextual public purpose

claims. State courts have utilized several different stan-

dards of review: (1) some have equated it to the standard

of review for bad faith or fraud;" (2) one has alluded to a

methodology that requires an individual to demonstrate

that the sovereign’s facially valid public purpose is invalid

rather than proving an ulterior motive;” and (3) one

federal court has interpreted its state’s law as applying a

" See Armendariz v. Penman, 75 F.3d 1311, 1321 (9th Cir. 1996)

(stating that the Fifth Amendment would lose its ability to limit the

eminent domain power if the sovereign could take private property

“merely by positing a conceivable public purpose to which the taking is

rationally related”) (internal quotations omitted); 99 Cents Only Stores

v. Lancaster Redevelopment Agency, 237 F.Supp.2d 1123, 1129 (C.D.

Cal. 2001).

" 99 Cents Only Stores, 237 F.Supp.2d at 1129-1131 (holding that

eminent domain taking was clearly based on a pretextual public

purpose).

" See City of Las Vegas Downtown Redevelopment Agency v.

Pappas, 76 P.3d 1, 14-15 (Nev. 2003) (examining the fraud, bad faith,

and pretextual public purpose claims together); State ex. rel. Washing-

ton State Convention Center v. Evans, 136 Wash.2d 811, 823 (1998)

(“fraud or constructive fraud would occur if the public use was merely a

pretext to effectuate a private use on the condemned lands”); Pheasant

Ridge Associates Limited Partnership v. Town of Burlington, 399 Mass.

771, 775 (1987) (“a municipal land taking, valid on its face, may be

invalid because it was undertaken in bad faith).

" See Hurwitz v. City of Orange, 122 Cal.App.4th 835, 852-854

(2004) (finding city’s nuisance order clearly pretextual because only

ordered to provide proper purpose for eminent domain taking).

reasonableness standard.” Some state courts have not

developed any basis for a standard of review and have

merely suggested that a sovereign’s eminent domain

taking under the pretext of a facially valid public purpose

is not a proper taking.”

Some courts say that an individual can demonstrate a

pretextual public purpose only through proof of bad faith;

others suggest that the individual does not need to demon-

strate bad faith.” The lower federal courts and some state

courts recognize that an eminent domain taking under the

pretext of a facially valid public purpose is invalid without

addressing any standard of review.” Because there is no

clear standard of review for a pretextual public purpose

claim, there is a risk that: (1) pretextual public purpose

claims under similar facts arising in different forums will

be decided differently; (2) some courts will allow a sover-

eign to take an individual’s private property after merely

examining the facial validity of the public purpose; and (3)

worse, the sovereign, acting as a real estate speculator,

" See Milligan v. City of Red Oak, lowa, 230 F.3d 355, 360 (8th Cir.

2000) (interpreting Iowa state law as examining a pretextual] public

purpose claim under its objective standard for examining whether the

purpose is public).

* See, e.g., Mcintosh v. Dill, 206 P. 917, 921 (Okla. 1922), Village of

Hamtrack v. Simons, 201 Mich. 458, 465 (1918); Brevoort v. Grace, 53

N.Y. 245, 256 (1873) (“if [the legislature] should vacate a grant of

property under the pretext of some public use ... the law would be

" Eg., Hurwitz, 122 Cal. App.4th at 852-854; Pappas, 76 P.3d at

14-15; Evans, 136 Wash.2d at 823; Pheasant Ridge, 399 Maas. at 775.

” Eg., Armendariz, 75 F.3d at 1321; 99 Cents Only Stores, 237

F.Supp.2d at 1129-1131; Milligan, 230 F.3d at 360; Mcintosh, 205 P. at

921, Village of Hamtrack, 201 Mich. at 465; Brevoort, 53 N.Y. at 255-

256.

may take an individual's private property under the facade

of a facially valid public purpose.

Since its early interpretations of the Public Use

Clause, this Court has expressed a concern that a sover-

eign could erode an individual's private property rights

under the pretext of a facially valid public purpose.” The

Court, however, has not yet followed that concern with a

clear standard of review to protect the individual’s rights.

This case presents the unique opportunity to guide the

lower courts by clearly establishing the appropriate

standard of review for a pretextual public purpose claim.

Il. The Massachusetts courts’ standard of review

for pretextual public purpose claims is less

protective of an individual’s property rights

than the standard of review that this Court

would apply under the Fifth Amendment to the

Constitution.

When the United States Constitution defines the

minimum level of protection afforded to an individual, the

states cannot reduce that level of ; -tection.™ The Fifth

* See Pumpelly, 80 U.S. at 178 (an interpretation of the Public Use

Clause that would allow a sovereign to invade a “private right under

the pretext of the public good” is repugnant to the “laws of our ances-

tors” ).

* See U.S. Const. Art. VI (“the Constitution and the laws of the

United States ... shall be the law of the land; and the judges in every

state shall be bound thereby”), Garcia v. San Antonio Metropolitan

Transit Authority, 469 U.S. 528, 549 (1985) (the sovereign authority of

the States is limited »y the Constitution itself) Mayo v. United States,

319 U.S. 441, 445 (1943) (“it is necessary for uniformity that the laws of

the United States be dominant over those of ary state”); McCulloch v.

Maryland, 17 U.S. 316, 327 (1819) (“the laws of the United States, then,

made in pursuance of the constitution, are to be the supreme law of the

(Continued on following page)

b: 13

Amendment provides the minimum level of protection for

an individual’s property rights by requiring that the

sovereivn exercise its eminent domaia power pursuant to a

proper public purpose.” When determining a proper public

purpose, this Court has applied a rational basis standard

of review to uphold the protection of the Fifth Amend-

ment.”

Additionally, this Court has established that the role

of the judiciary in examining th» ,alidity of a sovereign’s

eminent domain taking is limited to its review of the

public purpose.” The judiciary’s role is so limited because

it is deferential to the sovereign’s judgment.” But this

Court has indicated that the review of pretextual public

purpose claims properly belongs within the judiciary’s

authority.”

land, anything in the laws of any state to the contrary, notwithstand-

ing”).

* See U.S. Const. Amend. V. See also Kelo, 125 S.Ct. at 266) (this

Court has applied the Public Use Clause of the Fifth Amendment to the

States by requiring a public purpose for the taking) citing Fallbrook

Irrigation Dist. v. Bradley, 164 U.S. 112, 158-164 (1896); see also

Midkiff, 467 U.S. at 241 (this Court has “repeatedly stated that ‘one

person’s property may not be taken for the benefit of another private

person without a justifying public purpose’”) quoting Thompson v.

Consolidated Gas Corp., 300 U.S. 55, 80 (1937).

* See Midkiff, 467 U.S. at 241(an eminent domain taking must be

“rationally related to a conceivable public purpose”).

” See id., at 239-240; Berman v. Parker, 348 U.S. 26, 32-33 (1954).

" Midkiff, 467 U.S. at 241 (“the Court has made clear that it will

not substitute its judgment for the legislature's judgment as to what

constitutes a public use unless the use be palpably without reasonable

foundation”) quoting United States v. Gettysburg Electric Co., 160 U.S.

668, 680 (1896) (internal quotations omitted).

” See Kelo, 125 S.Ct. at 2661-2664 (discussing inability of sover-

eign to take private property under a pretextual public purpese within

(Continued on following page)

Massachusetts courts also limit the judiciary’s role in

examining an eminent domain taking.” Whereas this

Court limits the judiciary’s review to a proper public

purpose, Massachusetts courts examine a taking for bad

faith in addition to their review of a proper public pur-

pose.” Massachusetts courts, however, examine pretextual

public purpose claims solely for bad faith.” By limiting

their examination of pretextual public purpose claims to

bad faith, Massachusetts courts have become more restric-

tive than this Court.

the discussion of its review of the City of New London's public purpose),

Vester, 281 U.S. at 446-447 (rejecting sovereign’s taking under its public

purpose review because the mere recital of a public purpose was not

rationally related to the taking).

* See Luke v. Massachusetts Turnpike Authority, 337 Mass. 304,

308 (1958) (public purpose review is within the judiciary’s role in

examining an eminent domain taking while the examination of

necessity is outside that role); McAuliffe & Burke Co. v. Boston Housing

Authority, 334 Mass. 28, 30 (1956); City of Boston v. Talbot, 206 Mass.

82, 89-90 (1910).

" See Chelmsford v. DiBiase, 370 Mass. 90, 92-93 (1976) (court

must protect an individual's property rights from an eminent domain

taking when the taking is for an illegitimate public purpose or not in

good faith and not for a public benefit), Poremba v. City of Springfield,

354 Mass. 432, 434 (1968) (a condemnee must allege underlying facts

that the taking was not for a public purpose or that the sovereign’s

actions were not in good faith and not for a public benefit).

" Contrast Pheasant Ridge, 399 Mass. at 776 (bad faith “includes

the use of the power of eminent domain solely for a reason that is not

proper, although the stated public purpose or pause 6 for the taking

may be valid ones”) with Kelo, 125 S.Ct. at 2661-2664 (discussing

inability of sovereign to take private property under a pretextual public

purpose within the discussion of its. review of the City of New London's

public purpose); and Vester, 281 U.S. at 446-447 (rejecting sovereign’s

taking under its public purpose review because the mere recital of «

public purpose was not raaonally related to the taking).

Under Massachusetts law, the condemnee must

demonstrate that the sovereign intended an improper

purpose as the sole or dominant reason for the taking to

establish that the sovereign acted in bad faith.” When

examining intent, the courts will consider what the sover-

eign said and will draw inferences from what it said or did

not say.” The courts have also suggested other factors to

determine intent, such as: (1) facts indicating that the

taking authority did not follow its “usual practices” in

conducting the taking; (2) facts indicating that the site

chosen had not previously been considered; or (3) facts

indicating that the taking authority had previously con-

sidered the site unsuitable for the stated public purpose of

the taking.” This has essentially required the condemnee

to establish that the sovereign has engaged in a fraud to

succeed in a pretextual public purpose claim.” In the

absence of a smoking gun that demonstrates bad faith or

” See Benevolent & Protective Order of Elks Lodge No. 65 v.

Planning Board of Lawrence, 403 Mass. 531, 551 (1988) (sovereign has

not acted in bad faith if the predominant motive for the taking was a

proper public purpose); Pheasant Ridge, 399 Mass. at 776 (“[bad faith)

includes the use of the power of eminent domain solely for a reason that

is not proper”); HTA Limited Partnership v. Massachusetts Turnpike

Authority, 51 Mass. App. Ct. 449, 455 (2001).

™ Pheasant Ridge, 399 Mass. at 377.

“ HTA Limited Partnership, 51 Mass.App.Ct. at 456 citing

Benevolent & Protective Order of Elks Lodge No. 65, 403 Mass. at 552-

553 and Pheasant Ridge, 399 Mass. at 778.

* Cf Sahin v. Sahin, 436 Mass. 396,402 n. 9 (2001) (common-law

fraud requires the plaintiff to estabiish that the defendant “made false

representations” with “knowledge of the falsity”) quoting Slaney v.

Westwood Auto, Inc., 366 Mass. 688, 703 (1975).

fraud, the condemnee cannot overcome the sovereign’s

declaration of a facially valid public purpose.”

Here, the petitioner demonstrated that the facially

valid public purpose lacked a rational foundation: (1) the

survey data compiled by the respondent’s own consultant

demonstrated that there was no demand for Park & Ride lots

within the Turnpike corridor, specifically in the area of the

petitioner’s private property, (2) the respondent knew its

proposed Park & Ride program had absolutely no chance of

success unless it provided express bus service; (3) the re-

’ gpondent did not provide the express bus service that it

required for the program’s success; (4) the actual use of the

Park & Ride lot was substantially less than the forecasted

use; (5) the respondent did not construct the other proposed

lots at Natick and Weston; (6) the respondent’s taking order

falsely declared that the taking was in compliance with the |

Clean Air Act and with DEP regulation 310 C.M.R. 7.37; (7)

DEP regulation 310 C.M.R. 7.37 only required the respon-

dent to submit a study of HOV alternatives and did not

include Park & Ride lots as an HOV facility; (8) there were

no public hearings on the propriety of this taking, and the

respondent's Board of Directors never conducted a vote to

adopt the Park & Ride program, which was a policy level

decision requiring such a vote; and (9) that the locus is

currently intended to be used as a gateway to commercially

develop the respondent’s loop-ramp parcels. The Massachu-

setts court totally disregarded this evidence. The court

instead focused on the fact that the petitioner had no pros-

pect of proving that the sole or dominant purpose for the

" The Massachusetts courts have recognized that bad faith

imposes an extremely high burden upon the condemnee. Pheasant

Ridge, 399 Mass. at 776.

taking was anything other than its stated public purpose

of a Park & Ride facility.”

The Massachusetts courts’ review of pretextual public

purpose claims is far more deferential to the sovereign’s

judgment than the review that this Court would apply

under the Public Use Clause. ‘The Massachusetts courts

require the condemnee to demonstrate that the sovereign

was motivated by bad faith or an improper intent on the

day of the taking.” This Court, however, would require

only that the condemnee demonstrate that the taking was

not “rationally related to a conceivable public purpose.””

This Court has never imposed the additional burden of a

demonstration of bad faith or an improper intent in its

review of public purpose under the Public Use Clause."

The Massachusetts requirement that the condemnee

demonstrate bad faith is distinct from the burden of

demonstrating an invalid public purpose.“ Massachusetts

has created a more limited review of pretextual public

" See Hanna v. Massachusetts Turnpike Authority, 16 Mass. L.

Rptr. 590 (2004).

” See Benevolent & Protective Order of Elks Lodge No. 65, 403

Mass. at 551; Pheasant Ridge, 399 Mass. at 776; HTA Limited Partner-

ship, 51 Mass. App. Ct. at 455.

“ See Vester, 281 U.S. at 446-447 (rejecting sovereign’s taking

under its public purpose review because the mere recital of a public

purpose was not rationally related to the taking); cf Midkiff, 467 U.S.

at 241; Kelo, 125 S.Ct. at 2661-2664; Vester, 281 U.S. at 446-447.

“ This Court has made one passing reference to bad faith through-

out its eminent domain jurisprudence but has not used bad faith in the

holding of an eminent domain case. See Carmack, 329 U.S. at 243-244

(referencing in dicta that a court may set aside an eminent domain

taking if the sovereign’s agent acted in bad faith).

* See Chelmsford v. DiBiase, 370 Mass. at 92-93; Poremba v. City

of Springfield, 354 Mass. at 434.

purpose claims than the Constitutional review by placing

an additional burden upon the condemnee.“ This limited

review effectively reduces the protection of the Fifth

Amendment because the condemnee has the additional

burden before the Massachusetts courts will provide him

with that protection.

This Court should not stand idle and allow the Massa-

chusetts courts to set a precedent that is far more lenient

to the sovereign and less protective to individual property

rights than the minimum Constitutional standard of

review. This Court should use this case to clearly enunci-

ate a standard of review in pretextual public purpose

claims that include an examination of the rational basis of

the posited public purpose.

CONCLUSION

For the foregoing reasons, the petitioner respectfully

requests this honorable Court to grant this petition for

writ of certiorari.

Respectfully submitted,

MICHAEL ANTON LAURANO

Counsel of Record ~

15 Court Square

Suite 360

Boston, MA 02108

“ Contrast Midkiff, 467 U.S. at 241; and Kelo, 125 S.Ct. at 2661

with Benevolent & Protective Order of Elks Lodge No. 65, 403 Mass. at

551; Pheasant Ridge, 399 Mass. at 776; and HTA Limited Partnership,

51 Mass. App. Ct. at 455.

App. 1

é Commonwealth of Massachusetts

Appeals Court for the Commonwealth at Boston,

(Filed Jun. 16, 2005)

In the case no. 04-P-72

TIMOTHY K. HANNA & another

MASSACHUSETTS TURNPIKE AUTHORITY.

Pending in the Superior Court for the County of Middlesex

MICV1997-14161

Ordered, that the following entry be made in the

docket:

Judgment affirmed.

By the Court,

/s/ Ashley Ahearn , Clerk

Date December 23, 2004

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

04-P-72

TIMOTHY K. HANNA & another.’

vs.

MASSACHUSETTS TURNPIKE AUTHORITY.

* CMA Realty Trust. The Realty Trust did not file a brief.

Upon review of the briefs and record appendix it has

not been made to appear that the entry of summary

judgment in the Superior Court was error, or that the

court’s discovery order, dated June 17, 2002, demonstrated

an abuse of discretion.

In an earlier appeal in this matter, this court reversed

so much of a judgment entered pursuant to Mass.R.Civ.P.

12(b)(6), 365 Mass. 755 (1974), on the counts of the plain-

tiffs’ complaint alleging that the defendant’s eminent domain

taking of property located at 1672 Worcester Road in Fram-

ingham was not made in good faith. HTA Ltd. Partnership

v. Massachusetts Turnpike Authy., 51 Mass. App. Ct. 449,

454-458 (2001). In so doing, this court noted that the

plaintiffs’ allegations, standing alone, might be insufficient

to withstand summary judgment and remanded for further

proceedings. Id. at 457-458.”

On remand, the plaintiffs amended their complaint to

add allegations, inter alia, that the defendant’s actions

were arbitrary and capricious, and unconstitutionally

applied (alleging that the defendant was only authorized

to take accessible abutting land). A Superior Court judge

allowed the defendant’s motion for summary judgment,

concluding that neither the fact that the plaintiffs’ expert

disagreed with the defendant’s consultant, nor mere

underutilization of the locus for the use for which it was

* As part of the decision, however, this court did conclude that the

taking for a park and ride facility was within the scope of the enabling

legislation. See HTA Lid. Partnership v. Massachusetts Turnpike Authy.,

51 Mass. App. Ct. at 454. To the extent that the plaintiffs challenge this

presently, the argument would appear to be precluded.

App. 3

taken, establishes bad faith on the part of the defendant.

We agree. We reject, as did the judge, the arbitrary and

capricious claim.’ We conclude that the unconstitutional as

applied argument lacks substantive legal force. In addi-

tion, we are not persuaded that the judge, who ruled on

the plaintiffs’ motion to compel further answers to inter-

rogatories, abused her discretion. See Solimene v. B.

Grauel & Co., KG, 399 Mass. 790, 799 (1987); Beaupre v.

Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 485 (2000).

Accordingly, we affirm the judgment for substantially

the same reasons as those expressed by the Superior Court

judge. A

Judgment affirmed.

By the Court (Armstrong,

C.J., Brown & Green, JJ.),

/s/ Ashley Ahearr

Clerk

Entered: December 23, 2004.

* We also note, as did the judge, that this claim was not properly

pursued through administrative proceedings.

App. 4

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT

CIVIL ACTION

No. 97-4161

TIMOTHY K. HANNA and CMA REALTY TRUST

vs.

MASSACHUSETTS TURNPIKE AUTHORITY

MEMORANDUM OF DECISION AND ORDER

ON MASSACHUSETTS TURNPIKE AUTHORITY’S

MOTION FOR SUMMARY JUDGMENT AND

PLAINTIFFS’ CROSS-MOTION FOR

PARTIAL SUMMARY JUDGMENT

The background of this case appears in HTA Limited

Partnership v. Massachusetts Turnpike Authority, 51 Mass.

App. Ct. 449 (2001). The Appeals Court there remanded

the case for further proceedings on counts alleging that

the defendant Authority’s taking of the plaintiffs’ property

was made in bad faith, “solely or dominantly” to confer a

benefit on the private owners of the so-called “9/90 Devel-

opment”, rather than for the stated public purpose of a

park and ride facility. Jd. at 454-455, 457-458. Support for

such a claim, the Court noted, could include evidence that

the taking authority had departed from its usual practices,

or that it had previously considered the site unsuitable, or

not considered it, for the stated purpose. Jd. at 456. The

Court further noted allegations of the complaint that, if

proved, would assist the claim, including that the defen-

dant had departed from common procedural safeguards,

and that technical studies known to the Authority had

shown the site to be unsuitable for the purpose, while the

Authority was aware of alternative sites that would have

App. 5

met its goals. Jd. The Court cautioned that such allega-

tions, while sufficient to withstand a motion to dismiss,

would not suffice at the stage of summary judgment.

That stage has now arrived. After hearing, and having

examined the entire record provided in the light most

favorable to the plaintiffs, the Court concludes that the

plaintiffs have no prospect of proving that the sole or

dominant purpose of the taking was anything other than

the stated public purpose of a park and ride facility.

Accordingly, the defendant’s motion for summary judg-

ment will be allowed.

The Court’s review of the record, and consideration of

the plaintiffs’ arguments, has been substantially ham-

pered by the plaintiffs’ approach to presenting the facts, a

task governed by Superior Court Rule 9A(b)(5). As re-

quired by that rule, the defendant has provided a concise

statement setting forth in short numbered paragraphs the

subsidiary facts that it contends are undisputed. The

plaintiffs’ response admits virtually all the facts stated,

but goes on in each paragraph to assert a series of qualifi-

cations, arguments, and conclusions, with reference to

evidentiary material purporting to provide support. This

approach does not comply with the rule, either with

respect to disputing facts asserted by the moving party or

with respect to asserting additional facts. See Dziamba v.

Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 398-401

(2002). Nevertheless, the Court has reviewed those of the

cited materials that have been provided." That review

* In some instances the plaintiffs have cited pages of deposition

transcripts that they have not provided. .

App. 6

reveals that virtually none of the referenced material

supports the proposition for which it is cited.

As to the facts asserted by the defendant, the plain-

tiffs purport to dispute three. With respect to each of

paragraphs 7 and 10, the asserted dispute involves a

minor discrepancy in dates, which is resolved in each case

by reference to documents provided. As to paragraph 13,

the plaintiffs dispute the assertion that the Authority

presently intends to expand the park and ride lot on the

site to 250 spaces. Among the references provided are none

that address the present time, but some that reflect

consideration in 1997 of. proposals that would have re-

duced the size of the lot. The defendant’s consideration of

such proposals in 1997 sheds light neither on its present

intentions nor on its intentions at the time of the taking,

which is the issue presented in this case. The record thus

presents no genuine dispute of material fact.

What the record shows, in substance, is the following.

In the early 1990’s, the Authority engaged a consultant to

evaluate various approaches to reducing the number of

vehicles using the Turnpike during peak traffic hours, so

as to meet regulatory requiremunts under the Clean Air

Act. The consultant, after gathering and evaluating data,

concluded that a park and ride program would meet the

need, and projected demand in the area of interchange 12

at 250 spaces. The plaintiffs’ expert disagrees with the

consultant’s methods, and with the conclusions it drew

from available data. The Authority, however, accepted

those conclusions, and undertook to establish park and

ride lots at most turnpike interchanges.

With respect to interchange 12, Authority personnel

considered the site and one other potential location, and

App. 7

selected the site. The site had a significant drawback, in

that access between the site and the Turnpike was less

than direct, but no evidence indicates that the alternative

location considered, or any other potential location, was

better in this regard, still less that any alternative was

better or even equal financislly or in other respects. The

plaintiffs refused to sell the site to the Authority, express-

ing only a willingness to consider a lease “on my terms.”

The Authority took the site by eminent domain in August

of 1994. It did not conduct a public hearing prior to the

taking, nor does any evidence indicate any practice of

doing so.

Immediately after the taking, the Authority estab-

lished a park and ride lot for 110 vehicles. The projected

250 users did not materialize, and the lot has been under-

utilized since its inception. In 1997, some three years after

the taking, a developer proposed to the Authority an

arrangement under which part of the lot would be used for

access to the adjacent “9/90 Development.” The Authority

engaged in negotiations over that proposal. No evidence

indicates that those negotiations ever culminated in any

agreement.

As to the allegations cited by the Appeals Court as

potentially supporting the claim, the record reveals a lack

of supporting evidence. Nothing in the record indicates

that the Authority departed from its usual practices or

from common procedural safeguards; indeed the evidence

is devoid of any basis on which a fact finder could identify

any procedures usually employed by the Authority or by

other taking authorities in Massachusetts that were not

employed in this case. As to the Authority’s consideration

of the site, the only evidence is that its staff considered

this site, along with one other, from the outset of its

App. &

planning process for a park and ride lot at interchange 12;

nothing suggests that the Authority ever considered the

site unsuitable for the purpose, despite recognition of its

drawbacks. Nor does any evidence indicate that any

technical studies had shown the site to be unsuitable for

the purpose. That the plaintiff’s expert disagrees with the

conclusions reached by the Authority’s consultant does not

provide such evidence. The evidence offered fails to sup-

port plaintiff’s claim that the Authority took the site in

bad faith, for any purpose other than that stated, and the

Authority is entitled to judgment as a matter of law on the

two counts of the second amended complaint that are

predicated on that claim, counts I and II.

Count III alleges that the taking was arbitrary and

capricious. In the eminent domain context, that allegation

means nothing more than that the taking was for a pur-

pose not authorized by law. See Chandler v. County Com-

missioners of Nantucket County, 437 Mass. 430, 434

(2002). As discussed, the record here establishes other-

wise. Moreover, the proper procedural mechanism for

raising that allegation would be an action in the nature of

certiorari, pursuant to G.L. c. 249, § 4, under which the

Court would review the record of the administrative

action, without a jury, and without receiving evidence

outside that record. See id. The plaintiff has not asserted a

claim for such review, nor did he meet the sixty day filing

deadline for such an action. Accordingly, the defendant is

entitled to judgment as a matter of law on Count III.

Count IV of the Second Amended Complaint, added

after remand from the Appeals Court, alleges that the

taking was an “unconstitutional application” of the Au-

thority’s statutory eminent domain power “because Turn-

pike travelers must leave the Turnpike road in order to

App. 9

utilize the Subject Property.” The theory underlying this

claim, as explicated in the plaintiff’s arguments in sup-

port of his cross-motion for partial summary judgment, is

that the Authority's enabling act “impliedly authorizes

takings only of directly accessible abutting land.” No such

limitation appears in the language of the enabling act, nor

does either case law or common sense support its implica-

tion.

The pertinent provisions of the Authority's enabling

act appear at sections 5(f), (k), and (p) of chapter 354 of

the act of 1952. These provisions authorize the Authority: ©

(f) To acquire sites abutting on the turnpike

and to construct or contract for the construction

of buildings and appurtenances for gasoline sta-

tions, restaurants and other sef¥Vices and to lease

the same for the above purposes in such manner

and under such terms as it may determine;

* * *

(k) To acquire... ee ee

of eminent domain ... any fee simple absolute or

any lesser interest in such private property as it

may deem necessary for carrying out the provi-

sions of this act, including any fee simple abso-

lute in, easements upon, or the benefit of

restrictions upon, abutting property to preserve

and protect the turnpike...

ao * +.

(p) To do all acts and things necessary or con-

venient to carry out the powers expressly

granted in this act.

‘Soon efter its enactment, the Justices of the Supreme

Judicial Court opined that the Act did not exceed the

App. 10

Legislature's power to delegate, and did not violate the

restrictions in article ten of the declaration of rights on

takings for highway purposes of “more land and property

than are needed for the actual construction of such high-

way or street.” See Opinion of the Justices, 330 Mass. 713,

719-725 (1953). In reaching these conclusions, the Court

noted the important differences between the Turnpike and

more conventional roads, and the consequent necessity for

the Turnpike to have broad powers to provide a range of

facilities and services beyond the road itself. See id. at

723-725. In keeping with that opinion, the Appeals Court

in this very case has recognized that the provision of a

park and ride lot is a legitimate public purpose authorized

by the enabling act. See HTA Limited Partnership v.

Massachusetts Turnpike Authority, 51 Mass. App. Ct. at

453-454.

: The statutory language limits the Authority's taking

power to abutting property, taken for the specified pur-

poses. Within those limitations, the power granted is

broad, with discretion to evaluate necessity and conven-

ience conferred on the Authority, rather than on any

reviewing Court. No limitation to directly accessible

property appears. Nor would such a limitation be consis-

tent with the apparent purposes of the grant of powers to

the Authority. The Authority could reasonably conclude

that parking facilities located outside the direct confines of

the Turnpike offer practical and safety advantages: travel

lanes and ramps need not be disrupted by vehicles turning

in and out of parking areas, and users need not pay tolls to

enter, and then later travel to the next interchange to exit.

The plaintiff suggests that the use of this site as a

park and ride lot does not serve to preserve and protect

App. 11

the Turnpike, because the lot is open to the public gener-

ally, and not limited to Turnpike users. Nothing in the

enabling act, however, compels the Authority to limit use

of its facilities to users of the Turnpike, as long its [sic]

purpose in establishing the facilities is to serve interests of

the Turnpike. As discussed supra, the record before the

Court establishes beyond dispute that the Authority's

purpose in taking the site was to establish a park and ride

lot for use by Turnpike commuters, so as to reduce the

number of vehicles using the Turnpike. The Appeals Court

has already held that purpose to be authorized by the

enabling act. Accordingly, the Authority is entitled to

judgment as a matter of law on Count IV.

Count V of the Second Amended Complaint, also

added after remand, alleges that the land taken “consists

of more land than was needed to construct and operate the

‘park and ride facility,’” and that the Authority “knew or

should have known that it took more land ... than it

needed.” In support of this allegation, the plaintiffs rely on

the opinion of their expert that the site is bigger than -

needed for 250 parking spaces, and that “realistic demand”

was far less than that number. This evidence fails to

support the allegations, for the same reasons discussed

supra; that the plaintiffs’ expert disagrees with the Au-

thority’s determination of how much land to take does not

render that determination improper. The legislature has

delegated to the Authority, not to the plaintiffs or the

Court, the discretion to determine its needs. See City of

Boston v. Talbot, 206 Mass. 82, 90 (1910) (transit author-

ity’s “exercise of delegated legislative authority and its

final judgment in determining what property it was

expedient to take to accomplish the strictly public purpose

App. 12

for which the taking was made are not subject to revi-

sion”). Nothing in the record suggests that the Authority

did not exercise its discretion in good faith.’

The plaintiffs’ memoranda expand on the allegations

of count V, contending that the Authority took not only

more acreage, but also a greater interest than necessary.

The plaintiffs argue that a leasehold would have sufficed,

citing evidence that the Authority leased land for park and

ride lots in other locations. This aspect of the argument

fails for the same reasons already discussed, and for the

additional reason that nothing in the record indicates any

terms on which the plaintiffs would have leased the land,

beyond plaintiff Hauna’s reference to “my terms.” Even if

the Court were empowered to second-guess the Authority's

decision to take the land rather than lease it, the Court

could hardly do so without a factual basis for comparison.

The defendant is entitled to judgment as a matter of law

on count V.

CONCLUSION AND ORDER

For the reasons stated, the Massachusetts Turnpike

Authority's Motion for Summary Judgment is ALLOWED,

* Whether a taking authority's exercise of discretion as to the

ammount of land to take might be subject to judicial review for abuse of

discretion, in am action in the nature of certiorari, is a question not

presented in this case; the plaintiffs did not seek such review, which, as

noted supra, would have been limited to the record of the Authority's

proceedings.

App. 13

and the Plaintiffs’ Cross-Motion for Partial Summary

Judgment is DENIED.

/s/ Judith Fabricant

Judith Fabricant

Justice of the Superior Court

May 16, 2003

App. 14

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT CLERK'S OFFICE

John Adams Courthouse

One Pemberton Square, Suite 1200

Boston, MASSACHUSETTS 02108-1705

(617) 725-8106

April 26, 2005

Michael A. Laurano, Esquire

15 Court Square, Suite 360

Boston, MA 02108

RE: No. 2004-P-0072

TIMOTHY K. HANNA & others

vs.

MASSACHUSETTS TURNPIKE AUTHORITY

NOTICE OF DOCKET ENTRY

Please take note that on April 25, 2005, the following

entry was made on the docket of the above-referenced

case:

ORDER: Denial of petition for rehearing. (CJA B GN, JJ.)

Notice/Image

Very truly yours,

The Clerk's Office

Dated: April 26, 2005

To: Michael A. Laurano, Esquire

Jeffrey S. Follett, Esquire

App. 15

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

04-P-72

TIMOTHY K. HANNA & others

vs.

MASSACHUSETTS TURNPIKE AUTHORITY

ORDER

The petition for rehearing filed by the appellant,

Timothy K. Hanna, having been considered, it is ordered

that the said petition be and it hereby is denied.

By the Court (Armstrong,

C.J., Brown & Green J.J.)

/s/ Gilbert P. Lima, Jr.

First Assistant Clerk

Entered: 25 April 2005

App. 16

Supreme Judicial Court for the Commonwealth of

Massachusetts

John Adams Courthouse

One Pemberton Square, Suite 1400,

Boston, Massachusetts 02108-1724

Telephone 617-557-1020, Fax 617-557-1145

Michael A. Laurano, Esquire

15 Court Square, Suite 360

Boston, MA 02108

RE: Docket No. FAR-14621

TIMOTHY K. HANNA & others

vs.

MASSACHUSETTS TURNPIKE AUTHORITY

Middlesex Superior Court No. MICV1997-04161

A.C. No. 2004-P-0072

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that on 06/09/05, the above-captioned

Application for Further Appellate Review was denied.

Susan Mellen, Clerk

Dated: June 9, 2005

To: Michael A. Laurano, Esquire

Jeffrey S. Follett, Esquire

App. 17

).8. Constitution: Bill of Rights

Fifth Amendment - Rights of Persons

No person shal! be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

CONSTITUTION OF THE

COMMONWEALTH OF MASSACHUSETTS

PART THE FIRST

A Declaration of the Rights of the Inhabitants

of the Commonwealth of Massachusetts.

Article X. Each individual of the society has a right to be

protected by it in the enjoyment of his life, liberty and

property, according to standing laws. He is obliged, conse-

quently, to contribute his share to the expense of this

protection; to give his personal service, or an equivalent,

when necessary: but no part of the property of any indi-

vidual can, with justice, be taken from him, or applied to

public uses, without his own consent, or that of the repre-

sentative body of the people. In fine, the people of this

commonwealth are not controllable by any other laws than

those to which their constitutional representative body

have given their consent. And whenever the public exigen-

cies require that the property of any individual should be

App. 18

appropriated to public uses, he shall receive a reasonable

compensation therefor.

28 U.S.C. § 1267

(a) Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may be

reviewed by the Supreme Court by writ of certiorari where

the validity of a treaty or statute of the United States is

drawn in question or where the validity of a statute of any

State is drawn in question on the ground of its being

repugnant to the Constitution, treaties, or laws of the

United States, or where any title, right, privilege, or

immunity is specially set up or claimed under the Consti-

tution or the treaties or statutes of, or any commission

held or authority exercised under, the United States.

(b). For the purposes of this section, the term “highest

court of a State” includes the District of Columbia Court of

Appeals.

MASSACHUSETTS APPEALS COURT RULES

RULE 1:28 SUMMARY DISPOSITION

At any time following the filing of the appendix (or the

filing of the original record) and the briefs of the parties on

any appeal in accordance with the applicable provisions of

Rules 14(b), 18 and 19 of the Massachusetts Rules of

Appellate Procedure, a pane! of the justices of this court may

determire that no substantial question of law is presented by

the appeal or that some clear error of law has been commit-

ted which has injuriously affected the substantial rights of

App. 19

an appellant and may, by its written order, affirm, modify

or reverse the action of the court below. The panel need

not provide an opportunity for oral argument before

disposing of cases under this rule. Any order entered

under this rule shall be subject to the provisions of Rule 27

and 27.1 of the Massachusetts Rules of Appellate Pruce-

dure.

Adopted June 26, 1975, effective September 8, 1975.

Amended February 28, 1978, effective March 2, 1978;

amended effective September 25, 1980; amended April 28,

1998, effective September 1, 1998.

Spec. L. C.S75 ANNOTATED LAWS OF MASSACHUSETTS § 1

§1. Massachusetts Turnpike.

The Massachusetts Turnpike Authority (hereinafter

created) is hereby authorized and empowered, subject to

the provisions of this act, to construct, maintain, repair

and operate at such location as may be approved by the

state department of public works a toll expr.ss highway, to

be known as the “Massachusetts Turnpike”, from a point

in the vicinity of the city of Boston or from a point or

points within said city to a point at or near the boundary

line between the Commonwealth and the State of New

York or such part or parts thereof as it may determine,

and to issue turnpike revenue bonds of the Authority,

payable solely from revenues, to finance such turnpike.

§2. Credit of Commonwealth not Pledged.

Turnpike revenue bonds issued under the provisions

of this act shall not constitute a debt of the commonwealth

App. 20

or of any political subdivision thereof or a pledge of the

faith and credit of the commonwealth or of any such

political subdivision, but such bonds shall be payable

solely from the funds herein provided therefor from reve-

nues. All such turnpike revenue bonds shall contain on the

face thereof a statement to the effect that neither the

commonwealth nor the Authority shall pay the same or

the interest thereon except from revenves of the turnpike

and that neither the faith and credit nor the taxing power

of the commonwealth or of any political subdivision thereof

is pledged to the payment of the principal of or the interest

on such bonds.

All expenses incurred in carrying out the provisions of

this act shall be payable solely from funds provided under

the authority of this act and no liability or obligation shall

be incurred by the Authority hereunder beyond the extent

to which moneys shall have been provided under the

provisions of this act.

§ 3. Massachusetts Turnpike Authority.

There is hereby created and placed in the state de-

partment of public works a body politic and corporate to be

known as the “Massachusetts Turnpike Authority”, which

shall not be subject to the supervision and regulation of

the department of public works or of any other depart-

ment, commission, board, bureau or agency of the com-

monwealth except to the extent and in the manner

provided in this act. The Authority is hereby constituted a

public instrumentality, and the exercise by the Authority

of the powers conferred by this act in the construction,

operation and maintenance of the turnpike shall be

App. 21

deemed and held to be the performance of an essential

governmental! function.

The Massachusetts Turnpike Authority shall consist

of three members, to be appointed by the governor, who

shall be residents of the commonwealth, not more than

two of whom shall be of the same political party. The

members of the Authority first appointed shall continue in

office for terms expiring on July first, nineteen hundred

and fifty-eight, July first, nineteen hundred and fifty-nine

and July first, nineteen hundred and sixty, respectively,

the term of each such member to be designated by the

governor, and until their respective successors shall be

duly appointed and qualified. The governor shall designate

one of the members as chairman who shal] serve as such

during his term of office. Upon the expiration of the term

of office of such chairman, the governor shall] appoint one

of the members as his successor as chairman. The succes-

sor of each member shall be appointed for a term of eight

years, except that any person appointed to fill a vacancy

shall serve only for the unexpired term. Any member of

the Authority shall be eligible for reappointment. Each

member of the Authority before entering upon his duties

shall take an oath before the governor: to administer the

duties of his office faithfully and impartially, and a record

of such oaths shall be filed in the office of the secretary of

the commonwealth.

The Authority shall elect one of the members as vice

chairman thereof and shall also elect a secretary-treasurer

who need not be a member of the Authority. Two members

of the Authority shall constitute a quorum and the af-

firmative vote of two members shall be necessary for any

action taken by the Authority. No vacancy in the member-

ship of the Authority shall impair the right of a quorum to

App. 22

exercise all the rights and perform all the duties of the

Authority.

Before the issuance of any turnpike revenue bonds

under the provisions of this act, each member of the

Authority shall execute a surety bond in the penal sum of

twenty-five thousand dollars, and the secretary treasurer

shall execute a surety bond in the penal sum of fifty

thousand dollars, each such surety bond to be conditioned

upon the faithful performance of the duties of his office, to

be executed by a surety company authorized to transact

business in the commonwealth as surety and to be ap-

proved by the attorney general and filed in the office of the

secretary of the commonwealth. In addition to the salary

provided in the last paragraph of section four of chapter

five hundred and ninety-eight of the acts of nineteen

hundred and fifty-eight, the chairman of the authority

shall receive an annual salary of forty-one thousand seven

hundred and thirty dollars and the other members shall

receive an annual salary of twenty-two thousand and

eighty dollars. Each member shall be reimbursed for his

actual expenses necessarily incurred in the performance of

his duties. All expenses incurred in carrying out the

provisions of this act shall be paid solely from funds

provided under the authority of this act and no liability or

obligation shall be incurred by the Authority hereunder

beyond the extent to which moneys shall have been pro-

vided under the authority of this act.

The Authority may indemnify any member, officer or

employee from personal expense or damages incurred,

arising out of any claim, suit, demand or judgment which

arose out of any act or omission of the individual including

the violation of the civil rights of any person under any

federal law, if at the time of such act or omission the

App. 23

member, officer or employee was acting within the scope of

his official duties or employment; provided that the de-

fense or settlement of such claim shall have been made by

the resident counsel of the Authority, by an attorney

retained for such purpose by the Authority, or by an

attorney provided by an insurer obligated under the terms

of a policy of insurance to defend against such claims.

§ 5. General Grant of Powers.

The Authority is hereby authorized and empowered —

(a) To adopt by-laws for the regulation of its affairs and

the conduct of its business;

(b) To adopt an official seal and alter the same at pleas-

ure,

within the commonwealth as it may determine;

(d) To sue and be sued in its own name, plead and be

impleaded;

(e) To construct, reconstruct, maintain, repair and

operate the turnpike or any part or parts thereof as it may

determine, and the provisions of chapter ninety-one of the

General Laws shal] not apply to the construction by the

Authority of structures in, on or over rivers, streams and

waterways; provided, that for drainage areas greater than

one thousand acres the said structures shall be designed

to pass a rare flood as computed by the Kinnison-Colby

formula, and for drainage areas of one thousand acres or

less, the said structures shall be designed to meet the

requirements of the “Massachusetts Turnpike Drainage

App. 24

Standards” dated June fourth, nineteen hundred and fifty-

four.

(f) To acquire sites abutting on the turnpike and to

construct or contract for the construction of buildings and

appurtenances for gasoline stations, restaurants and other

services and to lease the same for the above purposes in

such manner and under such terms as it may determine;

(g) To issue turnpike revenue bonds of the Authority for

any of its corporate purposes, payable solely from the tolls

and revenues pledged for their payment, and to refund its

bonds, all as provided in this act;

(h) To fix and revise from time to time and charge and

collect tolls for transit over the turnpike, and it shall upon

request furnish a user of the turnpike a toll receipt show-

ing the amount of toll paid, the classification of the vehicle

and the date and place of exit from said turnpike.

(i) To establish rules and regulations for the use of the

turnpike not repugnant to the provisions of the General

Laws made applicable thereto by section fifteen, and to

provide penalties for the violation of said rules and regula-

tions in which, except as provided in section fifteen C,

shall not exceed five hundred dollars for each offense,

which may be recov~ 1d by indictment or by complaint

before a district court eighty per cent of which shall be

accounted for and paid to the Authority.

(j) To acquire, hold and dispose of real and personal

property in the exercise of its powers and the performance

of its duties under this act;

(k) To acquire in the name of the Authority by purchase

or otherwise, on such terms and conditions and in such

manner as it may deem proper, or by the exercise of the

App. 25

power of eminent domain in accordance with the provi-

sions of chapter seventy-nine of the General Laws or any

alternative method now or hereafter provided by general

law, in so far as such provisions may be applicable, such

public lands, parks, playgrounds, reservations, cemeteries,

highways or parkways, or parts thereof or rights ther-in,

and any fee simple absolute or any lesser interest in such

private property as it may deem necessary for carrying out

the provisions of this act, including any fee simple abso-

lute in, easements upon, or the benefit of restrictions

upon, abutting property to preserve and protect the

turnpike; provided, however, that whenever a parcel of

private property so taken is used in whole or part for

residential purposes, the owner or owners of said parcel

may, within thirty days of the date of the Authority's

notice to vacate such parcel, appeal to the Authority for a

postponement of the date set for vacating, whereupon the

Authority shall grant to the owner or owners of the prop-

erty a postponement of three moriths from the date of such

appeal; provided, however, that the appeal for such post-

ponement shall be in the form of a written request to the

Authority sent by registered mail, return receipt re-

quested; and provided, further, that the Authority shall

give security to the state treasurer, in such amount and in

such form as may be determined by the state department

of public works, for the payment of such damages as may

be awarded in accordance with law for such taking, and

that the provisions of section forty of said chapter seventy-

nine, in so far as the same may be applicable, shall govern

.the rights of the Authority and of any person whose

property shall be so taken;

(1) To designate the locations, and establish, limit and

control such points of ingress to and egress from the

App. 26

turnpike as may be necessary or desirable in the judgment

of the Authority to insure the proper operation and main-

tenance of the turnpike, and to prohibit entrance to the

turnpike from any point or points not so designated;

(m) To make and enter into all contracts and agreements

necessary or incidental to the performance of its duties

and the execution of its powers under this act; provided,

that sections twenty-six to twenty-nine, inclusive, and

sections forty-four A to forty-four L, inclusive, of chapter

one hundred and forty-nine of the General Laws and

sections thirty-nine F to thirty-nine M, inclusive, of

chapter thirty of the General Laws shall apply to contracts

of the Authority to the same extent and in the same

manner as they are applicable to the commonwealth. All

general or special laws, or parts thereof, inconsistent

herewith, are hereby declared to be inapplicable to the

provisions of this act. Notwithstanding the provisions of

this clause, the Authority may, with the approval of the

secretary of transportation and construction or his desig-

nee, without competitive bids and notwithstanding any

general or special law, award a contract, otherwise subject

to this section, limited to the performance of emergency

repairs necessary to preserve the safety of persons or

property.

(mn) To employ consulting engineers, attorneys, account-

ants, construction and financial experts, superintendents,

managers, and such other employees and agents as may

be necessary in its judgment, and to fix their compensa-

tion,

(o) To receive and accept from any federal agency grants

for or in aid of the construction of the turnpike, and to

receive and accept aid or contributions from any source of

_—

App. 27

either money, property, labor or other things of value, to be

held, used and applied only for the purposes for which

such grants and contributions may be made; and

(p) To do all acts and things necessary or convenient to

carry out the powers expressly granted in this act.

(q) Any sale of real property shall be awarded, after

advertisement for bids, to the bidder who is the highest

responsible bidder. The authority shall have the right to

reject all bids and to readvertise for bids. Before any real

property shall be so sold or conveyed notice that such real

property is for sale shall be publicly advertised in two

daily newspapers published in the city of Boston, and, if

such real property is located in any other city or town, in a

newspaper published in such other city or town, once a

week for three successive weeks. Such advertisements

shall state the time and place where all pertinent informa-

tion relative to the real property to be sold or conveyed

may be obtained, and the time and place of opening the

bids in answer to said advertisements, and that the

authority reserves the right to reject any or all such bids.

All bids in response to advertisements shall be sealed and

shall be publicly opened by the authority. The authority

may require, as evidence of good faith, that a deposit of a

reasonable sum, to be fixed by the authority, accompany

the proposals. This clause shall not be applicable to any

sale of real property by the Authority to the common-

wealth or any city, town or public instrumentality nor to a

sale of real property which is determined by the Authority

to have a fair market value of five thousand dollars or less.

App. 28

7.37._ MB High 0 Vehicle I

(1) Applicability. 310 CMR 7.37 applies to the

Massachusetts Executive Office of Transportation

and Construction, hereafter referred to as EOTC, and

the Massachusetts Turnpike Authority.

(2) High Occupancy Vehicle Lanes.

(a) By December 31, 1991, EOTC shall con-

struct and make available for public use, high oc-

cupancy vehicle lanes on the roadway segments

described as follows:

1. The existing southbound high occupancy

vehicle lane on Interstate-93, north of the

southern bank of the Charlies River, shall be

extended toward Interstate-95/Route 128 to

the northernmost point appropriate to maxi-

mize use of the lane. Said extension shall be

subject to the following conditions:

a. Establishment of a high occupancy

vehicle lanes shal] not be accomplished

by the additionof a new lane or lanes to

Interstate-93.

b. Prior to the lane opening, EOTC

shall submit to the Department infor-

mation relating to the length of the lane

including a demonstration that the lane

has been extended northward to the

most appropriate geographical location.

2. The final design of the Charles River

Crossing portion of the Central Artery/Third

Harbor Tunnel project on Interstate-93 shall

include a high occvpancy vehicle lane on the

southbound side of Interstate-93 extending

down the exit ramp tu Nashua Street with a

head-of-queve enforcement point at the

(3)

App. 29

intersection of the Interstate-93 ramp and

Nashua Street. This high occupancy vehicle

lane shall be made available for public use

at the time the Charles River Crossing of

the Central Artery/Third Harbor Tunnel

project is opened for public use.

(b) By May 31, 1993, EOTC shall construct and

hicle lanes northbound and southbound on Inter-

state-93 beginning at the intersection of

Interstate-93 with Interstate-90 and extending to

a point immediately north of the intersection of

Interstate-93 and Route 3. Said high occupancy

vehicle lanes shal] be established subject to the

following conditions:

1. High occupancy vehicle lanes on this

roadway segment shall be implemented

when the roadway threshold standards es-

tablished in compliance with the require-

ments of 310 CMR 7.37(3) have been violated

for three consecutive months in accordance

with provisions of 310 CMR 7.36(5)(b).

2. High occupancy vehicle lanes on this

roadway segment shall be subject to earlier

implementation if EOTC determines that

roadway threshold standards established

pursuant to 310 CMR 7.37(5Xb).

Establishment of Roadway Threshold Standards.

(a) Before December 31, 1991, EOTC shall es-

tablish roadway threshold standards for each of

the following roadway segments:

1. Interstate-93 northbound and southbound

between Interstate-90 and Route 3 in Brain-

tree.

App. 30

2. Imterstate-93 northbound between the

Charles River Crossing and Interstate-95.

(b) Before December 31, 1991, the Massachu-

setts Turnpike Authority shall establish roadway

threshold standards for the following roadway

segment:

1. Interstate-90 eastbound and westbound

between Interstate-93 and Interstate-95.

Massachusetts Turnpike Authority shall each

collect such information as is necessary to iden-

tify and document baseline roadway conditions

for the roadway segments identified in 310 CMR

7.37(3)(a) and (b).

(d) Roadway threshold standards shall be calcu-

lated to represent an average weekday peak hour

trip time increase of 35 percent from baseline

roadway conditions.

(e) Before January 1, 1992, EOTC and the Mas-

sachusetts Turnpike Authority shall each submit

to the Department a report which documents the

baseline roadway conditions and the roadway

threshold standards for the roadway segments

identified in 310 CMR 7.37(3)(a) and (b). Said re-

port shall contain traffic monitoring data and

trip time records as may be appropriate to sup-

port the roadway threshold standards as estab-

lished. Within 60 days of receipt of a complete

report, the Department shall review the report

and shall take such action on the report as it

may deem appropriate. Any action such shall be

in writing. Within 90 days of receipt of a com-

plete report the Department shall file a copy of

the report and Department action with U.S.

EPA, Region I.

App. 31

(4) Feasibility studies.

(a) Before December 31, 1992, EOTC shall, in

consultation with the Massachusetts Department

of Public Works and the Massachusetts Turnpike

Authority and after an opportunity for public re-

view and comment, submit to the Department a

study of the feasibility of establishing high occu-

pancy vehicle lanes and other high occupancy

vehicle incentives for the roadways identified in

310 CMR 7.37(3Xa) and (b).

(b) Feasibility studies required by this section

shall identify the impact of high occupancy vehi-

cle lane installation on general-purpose traffic

flow and mobile source emissions for each road-

way segment in addition to an assessment of the

appropriate engineering issues.

(5) Roadway Monitoring/Addition of High Occupancy

Vehicle Lanes.

(a) Beginning January 1, 1992, EOTC and the

Massachusetts Turnpike Authority shall monitor

traffic volumes and trip times on the roadway

segments identified in 7.37(3)(a) and (b) monthly.

All records and data shall be maintained for a

period of five years and shall be readily availeble

7 for Department inspection.

(b) Should roadway threshold standards estab-

lished pursuant to 310 CMR 7.37(3) be violated

for three consecutive months, EOTC shall notify

the Department of the violation, said notification

shall include identification of the roadway which

has exceeded roadway threshold standards which

requires implementation of high occupancy vehi-

cle lanes, and a schedule for implementing high

occupancy vehicle lanes for the applicable road-

way segment.

App. 32

to roadways pursuant to 310 CMR 7.37(5\(b)

shall be subject to the following conditions:

1. Addition of high occupancy vehicle lanes

on Interstate-93 northbound and south-

bound between Interstate-90 to Route 3,

shall extend onto Route 3 if found feasible

through the study conducted pursuant to

310 CMR 7.37(4). Should imp'ementation of

high occupancy vehicle facilities on this sec-

tion of Interstate-93 or Route 3 require addi-

tion of a new lane or lanes, any such high

occupancy vehicle lane shall be dedicated for

tween the hours of 6 am to 10 am and 3 pm

to 7 pm, at a minimum.

2. Addition of high occupancy vehicle lanes

on Interstate-90 eastbound or Interstate-90

westbound between [nterstate-93 and Inter-

sate-95 must first be found feasible through

the study conducted pursuant to 310 CMR

7.37(4Xa)1. Implementation of addition of

high occupancy vehicle facilities shall not be

accomplished by addition of a new lane or

lanes to Interstate-90.

3. Addition of high occupancy vehicle lanes

on Interstate-93 northbound beginning at

the Charles River Crossing and extending

north towards Interstate-95 to a point which

is appropriate to maximize use of the lane.

Incorporation of additional high occupancy

vehicle lanes shall not be accomplished by

the addition of a new lane or lanes to Inter-

state-93 in this area.

App. 33

(d) Beginning January 1, 1992, EOTC and the

Massachusetts Turnpike Authority shall provide

the Department an annual assessment of the po-

tential for violations of the roadway threshold

standards. The assessment shall be based on

monitoring information collected pursuant to 310

CMR 7.37(5)a) and traffic projections using 4

method which has been agreed to in advance

through consultation with the Department. The

annual assessment shall, at minimum, forecast

when roadway threshold standards will be vio-

lated on the roadway segments identified in 310

CMR 7.37(3\a) and (b) and, if roadway threshold

standards have already been violated, identify

the time of day and travel conditions which were

evident when threshold conditions were violated.

(6) High Occupancy Vehicle Lane Performance Stan-

dards.

(a) Within 30 days of implementation of a new

high occupancy vehicle lane or expansion of an

existing high occupancy vehicle lane, EOTC shall

establish written performance standards for high

occupancy vehicle lanes on each of the following

roadway segments:

1. From a point beginning at the intersec-

tion of Interstate-95 and Interstate-93 north

of Boston and extending south on Interstate-

93 to the Charles River Crossing. Said per-

formance standard shall be established to

represent the average peak hour travel time

during the period of maximum construction

activity of the Central Artery project, which

is expected to occur during calendar year

1994.

App. 34

2. Beginning at the Weymouth Town Lane

on Route 3, via Interstate-93 to South Sta-

tion in calendar year 1994. Said perform-

ance standard shall be established to

represent the average peak hour travel time

during the period of maximum construction

activity of the Central Artery project, which

is expect [sic] to occur during calendar year

1994.

3. Beginning at the Weymouth town line

on Route 3, via Interstate-93 and Interstate-

90 to the entrance to Logan Airport after

Central Artery Construction is complete in

the year 2002. Said performance standard

shall be established to represent the average

peak hour travel time during the period of

maximum construction activity of the Cen-

tral Artery project, which is expect [sic] to

occur during calendar year 1994.

(b) Within 30 days of implementation of a new

high occupancy vehicle lane on Interstate-90, the

Massachusetts Turnpike Authority, in consulta-

tion with EOTC, shall establish written perform:

ance standards for each high occupancy vehicle

lane on roadway segments described as follows:

1. From a point beginning at the intersec-

tion of Interstate-95 and Interstate-93 north

of Boston through the Sumner and Callahan

Tunnels to the entrance to Logan Airport af-

ter the Central Artery Construction is com-

plete in the year 2002.

2. From a point beginning at the inter-

change of Interstate-95 and Interstate-90 to

South Station during the central Artery

Construction period in the year 1994.

App. 35

3. From a pceint beginning at the inter-

change of Interstate-95 and Interstate-90

extending east along Interstate-90 to the en-

trance to Logan Airport after Central Artery

construction is complete in the year 2002.

(ec) Within 60 days of the implementation of a

new high occupancy vehicle lane or expansion of

an existing lane, EOTC shall submit to the De-

partment a report which documents the high oc-

cupancy vehicle lane performance standards for

the roadway segments identified in 310 CMR

7.37(5)(a). Said report shall contain traffic moni-

toring data and trip time records as may be ap-

propriate to support the high occupancy vehicle

lane performance standard for each roadway

segment and shall be subject to review as follows:

1. Within 60 days of receipt of a com-

plete roadway performance standard re-

port, the Department shall review the

report and shall take action to either ap-

prove or disapprove said proposed report

in writing.

2. Within 90 days of receipt of a com-

plete roadway performance standards re-

port the Department shall file a copy of

the report and Department action with

US. EPA, Region L

(d) Performance standards, as required by this sec-

tion shall be established to reflect roadway perform-

ance at a level the Department has determined is

reasonable. This level shall be defined as the range of

roadway performance between Level of Service B and

a condition of under-utilization. A high occupancy

vehicle lane shall be considered under-utilized if

traffic volumes fall below 400 vehicles per hour for

App. 36

a high occupancy vehicle lane with a traffic flow di-

rection which remains constant or 200 vehicles per

hour for a high occupancy vehicle lane where the

direction of traffic flow changes to match the pre-

dominant peak hour traffic flow direction.

(7) Continuous Attainment of Performance Standards.

(a) Beginning January 1, 1992, EOTC and the

Massachusetts Turnpike Authority shal] monitor

high occupancy vehicle lane performance on the

lanes for which they are responsible on a continu-

ous basis to ensure that high occupancy vehicle

operations and opportunities are maximized. Trip

times shall be measured at least quarterly. Meas-

urements shall be taken on five to seven week-

days over two consecutive weeks within each

quarter. A minimum of three time runs shall be

made in each direction for each high occupancy

vehicle lane roadway segment on each of the

sample days.

(b) EOTC and the Massachusetts Turnpike au-

thority shall use all appropriate measures on a

continual basis to maintain compliance with the

high occupancy vehicle lane performance stan-

dards.

formance standards for a given roadway segment

be violated for each time run conducted in accor-

dance with the provisions of 310 CMR 7.37(6)(a),

the agency responsible for the operation of the

lane, either EOTC or the Massachusetts Turn-

pike Authority, shall file a written report describ-

ing the violations to the Department within ten

days following the end of month in which the vio-

lation was detected. This report shall include a

commitment by the responsible agency to take

(8)

App. 37

whatever measures are necessary to return the

high occupancy vehicle land to compliance with

the performance standards, including but not

limited to changes in high occupancy vehicle eli-

gibility or high occupancy vehicle facility meter-

ing and measures to increase the use of busses

and/or car and van-pools.

Substitute High Occupancy Vehicle Projects.

(a) Based on the feasibility studies conducted

pursuant to 310 CMR 7.37(4Xa), if EOTC can

demonstrate tw the Department that a specific

project listed in 310 CMR 7.37(3)(a) and (b) is in-

feasible due to associated adverse engineering,

environmental or economic impacts, an alterna-

tive project may be substituted in the following

manner:

1. EOTC must petition the Department to

accept a substitution project, said petition to

include a demonstration that the alternative

project achieves equal or greater emission

reductions of NMHC, CO and NOx and

would provide a greater improvement in air

quality for CO and NOx in the area where

the required high occupancy vehicle lane

was targeted, both short and long term.

2. Within 60 days of receipt of a complete

petition and demonstration for project sub-

stitution, the Department shall review the

proposed substitution and shall take action

on the proposed substitution in writing.

3. Within 90 days of receipt of a complete

petition and demonstration for project sub-

stitution, the Department shall file a copy of

the petition, supporting documentation and

Department action with U.S. EPA, Region I.

App. 38

(9) High Occupancy Vehicle Studies and Further Ac-

tions.

(a) The Massachusetts Turnpike Authority

shall take all steps necessary to enhance and ex-

pand programs to support high occupancy vehicle

and shal) undertake to complete and submit to

“ the Department the following feasibility studies

no later than December 31, 1992:

1. A study to examine the feasibility of full-

scale high occupancy vehicle lanes and other

high occupancy vehicle facilities and mecha-

nisms on Interstate-90 between Interstate-

95 and Interstate-90 in Boston.

2. A study on the feasibility of implement-

ing a program of specia] high occupancy ve-

hicle toll booths and full head-of-queue

privileges on Interstate-90 including consid-

eration of establishing specially demarcated

lanes leading to high occupancy vehicle toll

booths wherever found practical at appro-

priate turnpike interchanges.

3. A study on the feasibility of installing

electronic identification systems to facilitate

high occupancy vehicle flow through turn-

pike tol] booths.

(10) High Occupancy Vehicle Promotion and En-

forcement.

(a) Before December 31, 1991 EOTC and the Mas-

sachusetts Turnpike Authority shall each prepare

and submit to the Department a plan defining the

enforcement program which shall be put into op-

eration to enforce the use of the high occupancy ve-

hicle system. These program submittals shall

include a commitment to implementation of the

App. 39

enforcement program as defined therein. Within 30

days of receiving the enforcement program plans,

the Department shal] review and make recommen-

dations regarding the plans, said recommendations

shall be incorporated by the EOTC and the Massa-

chusetts Turnpike Authority into the final En-

forcement program plan for each agency.

(b) By April 1, 1992 EOTC and the Massachusetts

Turnpike Authority shall prepare and submit to the

Department a plan for a program designed to pro-

mote high occupancy vehicle use. Said plan shall be

based on a comprehensive review of techniques

used to manage or promote high occupancy vehicle

use in other locations throughout the United States

and Canada. EOTC and the Massachusetts Turn-

pike Authority shall, in said program, commit to

implementation of selected measures to promote

use of the high occupancy vehicle system of each

agency.

(11) High Occupancy Vehicle Expansion to the Local

Roadway Network.

(a) EOTC shall encourage the City of Boston to

incorporate high occupancy vehicle facilities, in-

cluding special bus and/or taxi lanes into the de-

sign, construction and reconstruction of city

streets wherever feasible.

(b) EOTC shall work with the Massachusetts

Port Authority to conduct studies of high occu-

pancy vehicle needs at Logan Airport.

(1) Applicability. -

(a) The requirements of 310 CMR 7.38 shall

apply to the construction and operation of any

tunnel ventilation system for highway projects

proposed to be built in the Metropolitan Boston

Air Pollution Control District, construction of

which begins on or after January 1, 1991, includ-

ing, but not limited to, the Central Artery/Third

Harbor Tunnel project. The requirements of 310

CMR 7.38 apply in addition to requirements to

implement guidelines of the Department to en-

sure comprehensive and systematic air quality

analysis of highway projects, and all other review

procedures applicable to highway projects pursu-

ant to the State.

App. 41

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT

OF THE TRIAL COURT

TIMOTHY K. HANNA and

CMA REALTY TRUST,

Plaintiffs,

Vv.

MASSACHUSETTS

TURNPIKE AUTHORITY,

Defendant.

Civil Action No. 97-4161

;

me ee ee ee ee ee ee ee”

SECOND AMENDED COMPLAINT

This is an action seeking to rescind an invalid taking

of real property pursuant to the power of eminent domain

and to recover damages for unlawful acts of the Defendant

Massachusetts Turnpike Authority.

PARTIES

1. Plaintiff Timothy K. Hanna (“Hanna”) is an individ-

ual residing at 153 Prospect Street, Framingham,

Massachusetts.

2. Plaintiff CMA Realty Trust (“CMA”) is a real estate

trust created pursuant to the laws of the Common-

wealth of Massachusetts and recorded at Book 24674,

Page 455, Middlesex South Registry of Deeds. Plain-

tiff Hanna is co-trustee and a beneficiary of CMA.

3. Defendant Massachusetts Turnpike Authority (the

“Turnpike Authority”) is a corporation organized un-

der and created by the laws of the Commonwealth of

Massachusetts.

Secetan, leastel ob Ces enor of an nda Petecee

54. In January 1997, former Governor Edward King met

55. Without submitting the proposal to bid as required by

Mass. Gen. Laws c. 81A, § 4 and c. 149, § 44A, the

Turnpike Authority entered into a lease with Boston

Properties, Inc. which plans to construct a hotel and

office park on the ovals of land isolated by the inter-

change ramps south of the Turnpike roadway. The ho-

tel and office park will not be directly accessible from

the Turnpike road.

56. The Turnpike Authority authorized the construction

of an access road across the Subject Froperty ap-

proaching the 9190 Development site and a connector

bridge from the Subject Property to the isolated ovals

of Turnpike Authority land leased to Boston Proper-

ties

COUNT I

Violation of U.S.C ituti 1 Article X of t

/ . .

Be ee a f Private Land For | Private P

57. The allegations set forth in paragraphs 1 through 50

are restated and incorporated herein by reference.

58. The Turnpike Authority has taken the private prop-

erty of the Plaintiffs in bad faith and for an improper

61.

The allegations set forth in paragraphs 1 through 52

above are restated and incorporated herein by refer-

ence.

The Turnpike Authority publicly stated that it took

the Subject Property to construct a “park and ride” fa-

cility to be used by commuters on the turnpike and

Route 9 in order to satisfy its obligations under the

Federa! Clean Air Act and the~corresponding State

Implementation Plan. -

The Turnpike Authority's publicly alleged purpose

was pretextual, and its true and actual purpose for

taking the Subject Property was to confer a benefit

upon the private owners of the 9/90 Development and

to facilitate access to approximately 24 acres of iso-

lated Turnpike Authority land for future private de-

62. The use of the Subject Property, which had been

taken by eminent domain for use as a “park and ride”

facility, as a conduit to benefit the 9/90 Development

and the leasing of 24 acres of Turnpike Authority land

are improper inconsistent uses not authorized by the

legislature.

App. 44

COUNT Ill

| .

aS yn mp ye i Was Archi wo

63. The allegations of paragraphs 1 through 56 above are

restated and incorporated herein by reference.

App. 45

COMMONWEALTH OF MASSACHUSETTS

Middlesex, SS Supreme Judicia] Court

(Appeals Court No. 04-P-72)

TIMOTHY K. HANNA,

Plaintiff-Appellant

MASSACHUSETTS TURNPIKE AUTHORITY,

Defendant-Appellee.

APPLICATION FOR PLAINTIFF-APPELLANTS,

TIMOTHY K. HANNA, TO OBTAIN

FURTHER APPELLATE REVIEW

ON APPEAL FROM A JUDGMENT

OF THE SUPERIOR COURT

Michael A. Laurano

BBO #288200

15 Court Square, Suite 360

Boston, MA 02108

(617) 523-4499

An invented public use gloss can be put on virtually

any taking of land, no matter its nature turning the public

use requirement then into a matter of whether the sover-

eign has a “stupid staff.” See Lucas v. South Carolina

Coastal Counsel, 505 U.S. 1003, 1025 n. 12 (1992). As the

Court further pointed out in Lucas, “[t)}he takings clause

requires courts to do more than insist upon artful justifica-

tion.” Id.

App. 46

The public interest and the interest of justice are

triggered where the question is what prutection does the

5th Amendment and Article X of the Massachusetts

Declaration of Rights afford individuals in condemnation

cases where the sovereign knows the public use posited

would fail.

The justification for an eminent domain taking must

be supported by a proper and valid factual basis, or the

taking is invalid and in bad faith. Pheasant Ridge Assoc.,

LTD v. Town of Burlington, 399 Mass. 771, 775-77 (1987).

The right to take private property for a public use is limited

by public necessity; thus, “where the necessity stops there

stops the right to take, both as to amount of land and the

nature of the interest therein.” Jn re Winnisimmet Co., 209

Mass. 1, 2 (1911).

The plaintiff challenged defendants Park & Ride

“strategic” decision making process as foundationless and

App. 47

MASSACHUSETTS TURNPIKE AUTHORITY

10 Park Plaza, Suite 5170

Boston, MA 02116

(617) 248-2800

ORDER OF TAKING

At a duly called meeting of the Massachusetts Turn-

pike Authority held this 9th day of August, 1994, the

following is voted:

The Massachusetts Turnpike Authority, acting pursuant

to powers granted under Chapter 354 of the Acts of 1952

and all other general or special laws thereto enabling, does

hereby take the FEE SIMPLE INTEREST in real property

located at 1672 Worcester Road in the Town of Framing-

ham, more particularly described in Exhibit A, attached to

this vote and presented to the Board at the meeting at

which this vote is taken. The Authority does hereby also

take all buildings, trees and other appurtenances to said

real property. The Authority takes this FEE SIMPLE

INTEREST for the purposes of developing a commuter

parking lot in order to operate the turnpike in a safe and

efficient manner and to comply with provisions of the

Clean Air Act and regulations of the Massachusetts

Department of Environmental Protection.

An award of One Million Four Hundred Thousand

($1,400,000) and no/100 is made for damages sustained by

the persons having an interest in said real property, by

reason of this taking of the FEE SIMPLE INTEREST, in

accordance with Massachusetts General Laws chapter 79.

sections 6, 7A and 12 as amended, as well as an award in

the amount of Thirty-three Thousand Five Hundred Sev-

enty-five and 85/100 Dollars ($33,575.85), reflecting pro-

rated taxes as required by said section 12. The Authority

App. 48

reserves the right to amend the award at any time prior to

the payment thereof for good cause shown.

THE MASSACHUSETTS

TURNPIKE AUTHORITY

/s/ Allan R. McKinnon

Allan R. McKinnon, Chairman

/s/ Ann M. Hershfang _

Ann M. Hershfang,

Vice Chairwoman

/s/ Thomas J. Curley, Jr.

Thomas J. Curley, Jr.,

Board Member

e:/legal/pmo/cmareal.ty

App. 49

[LOGO] MASSACHUSETTS TURNPIKE AUTHORITY

State Transportation Building, 10 Park Plaza,

Suite 5170, Boston, MA 02116

(617) 248-2800 fax: (617) 523-0729

[Names Omitted In Printing]

David B. Struhs, Commissioner

Department of Environmental Protection 4

"One Winter Street, Third Floor

Boston, MA 02108

RE: Petition for Approval of Substitute HOV Project

Pursuant to 310 C.M.R. 7.37

Dear Commissioner Struhs:

As you know, the Massachusetts Turnpike Author-

ity has completed an extensive evaluation of various

options te promote the utilization of high occupancy

vehicles on the Turnpike I-90 mainline serving the

Boston area within Route 128 (the “Boston Extension”).

The evaluation, which was reported in its High Occu-

pancy Vehicle Lane Feasibility Study, June, 1994

(“Feasibility Study”), is one of several steps which have

been undertaken by MassPike in support of the Com-

monwealth’s compliance strategies being developed

pursuant to the Clean Air Act.

As a result of the Feasibility Study, which was

submitted to the Department of Environmental Protec-

tion orig nally in August, 1993 and again, with further

supplementation, in June, 1994, MassPike has con-

cluded that the best option to support Clean Air goals as

they relate to the HOVs using the Boston Extension, is

to implement the Park and Ride Program option. By this

letter, and the accompanying materials, MassPike

requests that DEP approve the Park and Ride Program

App. 50

as a “substitute project” in accordance with DEP’s HOY

regulation at 310 C.M.R. 7.37(8).

Background of MassPike HOV Program

The Boston Extension is a toll facility serving a

broad set of users and performing an essentia! function

within the larger, Boston metropolitan area transporta-

tion system. In particular, the Turnpike provide: a high

quality level of service for vehicles used in work or

commutation travel as well as for commercial) transpor-

tation, freight movement and shopping and leisure trips.

The predominant although not exclusive area served by

the Boston Extension includes east-west travel to and

from the Boston metropolitan region inside Rovte 128,

including Logan Airport.

MassPike is committed to managing the Turnpike in

a manner which complements the other elements of the

metropolitan transportation system. The market for the

trips served by the Boston Extension is extensive. This

market will continue to grow at a significant rate even

under conservative assumptions regarding economic

growth and land-use development. ;

App. 51 -

JAMES C. ROSENFELD

SENIOR VICE PRESIDENT

February 5, 1997

Governor Edward King

Executive Office

Massachusetts Turnpike Authority

10 Park Plaza — Suite 5170

Boston, MA 02116

RE: Interchange 12

Framingham, MA

Dear Governor King:

It was a pleasure to meet with you, David Nagle and

Ed Hanley to discuss the development opportunities

that may be available on land owned by the Massachu-

setts Turnpike Authority at Interchange 12 in Framing-

ham.

Boston Properties is interested in pursuing the

development of the approximately 24-acre parcel located

within the oval of the interchange ramps to the south of

the Turnpike roadway and, with this letter, is request-

ing the exclusive right to study the development feasi-

bility of this property for 90 days. Our objective during

this due diligence period wil] be to investigate in detail

the development potential of this site and prepare

business terms for a ground lease with the Turnpike

Authority. The work would include:

1. Site Access: We will investigate further

with the engineers the access options

which we reviewed with you in our meet-

ing on January 30. Our current thinking is

that creating a signalized intersection on

Route 9 at the existing entrance to the

54943

cutie: dhe aaiens ap tmaichanetiniaties

zoning of the parcel to commercial! use, site

plan approval and specia) permits as re-

quired from the Town of Framingham, the

MEPA environmental review process and

state permits from the Massachusetts

Highway Department and Department of

due diligence period, Boston Properti

will prepare terms for a

lease taking into account t

tial development on the

App. 53

cost of infrastructure to provide access and

bring utilities into the site.

Though there are hurdles to be overcome — access

and rezoning being the two most significant - we think

that Interchange 12 should be a very successful devel-

financial return to the Turnpike Authority.

We are excited about the opportunity of working

with the Massachusetts Turnpike Authority and look

forward to your favorable response to this request and

our designation as the developer of this property.

Sincerely,

/s/ James C. Rosenfeld

James C. Rosenfeld

gcit @

App. 54

te glial

ws as Pike ltcschange (2

wnagam Masacd ccs

Mason Resumes

“MTA Puch and Ride Parcel Arca

- Office / Hote! Developmen

in association with:

Roward/Stein Hudson Associates, Inc.

June 20, 1994 KM Chng Eavironmental, Inc.

The potential demand for Park & Ride lots was

developed based on data obtained during the postcard

survey of Turnpike drivers conducted in the Fall of 1992.

This survey is documented in Technical Memorandum

“Park & Ride Postcard Survey Preliminary Findings’,

dated January, 1993. For the survey, postcards were

distributed to all motorists entering the Turnpike ticket

system during the 6AM-10AM peak period on a typical

weekday. Information obtained included trip origin and

destination and general attitudes toward ridesharing and

14 2 percent response.

Based on this information, the Authority has esti-

mated that 70 percent of Park & Ride lot users would

choose to continue their trip downtown on buses, assuming

service is provided, 16 percent in vanpools, and 20 percent

in carpools. The survey information led to development of

a demand at each interchange for parking spaces for

App. 57

carpooling/vanpooling and/or express bus service. A previ-

ous “Commuter Rail Extension Feasibility Study’, pre-

pared for the MBTA, evaluated intermodal facilities at

some of these locations. That report was reviewed for use

and inclusion in this study.

The results of the Turnpike users survey revealed that

6,065 respondents were interested in participating in a

Park & Ride program. The data showed that approxi-

mately 95 percent of trip purpose was commuting to work.

To be conservative and based on the study team’s experi-

ence, it was first assumed that 50 percent of the interested

respondents would actually participate and use the Park

& Ride lots. Based on the grouping of origin/destination

pairs, this number was further reduced to 1,500, which

represents the number of parking spaces recommended for

construction between now and the year 2000 to serve

Greater Boston and Cambridge. This represents only

approximately 25 percent of the total number of respon-

dents who noted that they would be interested in carpool-

ing. All of these persons are presently using the Turnpike.

Therefore, the 1,500 carpool parking spaces are essentially

based on existing auto-oriented and Turnpike-oriented

demand at the various interchanges.

Based on the survey results, 80 percent of the 1,500

spaces (1200) would be used by commuters with destina-

tions along the Route 128 corridor. Of the 1,200 drivers

with destinations within the Route 128 beltway, 70 per-

cent were assigned to buses, 20 percent to vanpools and 10

percent to carpools. This means that the total bus rider-

ship is projected to be 840 passengers. The study team

assumed a bus occupancy of 28 persons per bus for a total

of 30 new buses on the Turnpike.

App. 58

With regard to the relationship between the demand

analysis for Park and Ride and the ridership projection for

the Worcester Commuter Rail, Figure 18 depicts the

corridor in which the Massachusetts Turnpike and the

proposed Worcester Commuter Rail Extension from

Framingham to Worcester are located. Shown also are the

locations of the proposed Turnpike Authority Park & Ride

lots as well as the proposed stations that may serve the

Worcester Rail line.

The MBTA and the Central Transportation Planning

Staff (STPS) are currently refining the ridership forecasts

for the Worcester Commuter Rail. However, the MBTA

estimates that are currently available are based on the

trips to work data from the 1990 census and are shown in

Table 16 and 17. The work trip destinations for Boston

CBD and Cambridge are shown in Figure 19 and those for

all of Boston within city limits and Cambridge are shown

in Figure 20. The MBTA/CTPS analysis projects Worcester

5. Park & Ride Alternative

The Park & Ride alternative aims to reduce the

number of SOVs and VMTs by providing convenient

parking lots where persons can leave their cars and utilize

ridesharing options. This alternative includes the con-

struction and operation of 1,500 parking spaces along the

Turnpike by the year 2000. These 1,500 carpool parking

spaces are based on existing demand at the various

interchanges.

The basis for the estimate of Park & Ride users was a

postcard survey of Turnpike users conducted in the Fall of

1992. The results of the survey revealed that 6,065 re-

spondents were interested in participating in a Park &

App. 59

Ride program. In this survey, the data showed that ap-

proximately 95 percent of trip purposes were commuting

to work. To be conservative and based on experience, it

was assumed that 50 percent of interested respondents

would actually use the Park & Ride lots. Based on the

grouping of origin/destination pairs, this number was

further reduced to 1,500, representing only approximately

25 percent of the total number of respondents who noted

that they would be interested in carpooling.

a. Congestion

Congestion on the Boston Extension will be signifi-

cantly reduced by the Park & Ride alternative. The analy-

sis has shown that 1,170 vehicles would be removed from

speeds and decreased travel times to complete the 11.5

b. Travel Time Saviags

Travel times as the result of the Park & Ride Aiterna-

tive are shown in Figure 35. With the Park & Ride lots in

place, it is expected that there will be a significant savings

in travel time for all users. In some cases travel time will

be cut in half. As shown in Table 27, all traffic would save

27.5 minutes under the 3+ or 2+ occupancy Park & Ride

alternative.

The calculated average speed for the AM eastbound

hour traffic, with the removal of 1,170 vehicles resulting

from the Park & Ride alternative, is 41.3 MPH for a travel

time of 16.8 minutes for the Extension in the year 2000.

For the PM westbound peak hour, the average calculated

speed is 46.5 MPH for a travel time of 13.9 minutes. The

App. 60

travel time benefits for the Park & Ride alternative will

maintain travel times below the DEP Regulatory Thresh-

old until the year 2005 with 1,500 spaces. However, as

more parking lots are added, the period of time savings

benefits should increase.

App. 61

Technical Memorandum

PARK & RIDE FEASIBILITY STUDY

INTERCHANGES 1 THROUGH 15

Prepared for:

MASSACHUSETTS

TURNPIKE (LOGO)

AUTHORITY

in association with:

Howard/Stein-Hudson Associates, Inc.

June 1993

sa * x

Interchange 12 (Framingham)

The HOV parking demand is split among 14 destina-

tions which would have a peak demand of 351 spaces.

Back Bay, Downtown Boston, Cambridge, and Waltham

would have candidates to support bus service, while

Newton indicates a demand for vanpool service. The

remaining nine destinations: Brookline, Burlington,

Lexington, Needham, Norwood, Roslindale, Roxbury,

Watertown, and Wellesley, would only provide candidates

for carpools. The demand range for HOV parking is from

290 to 450 spaces depending on the actual modal break-

down. The data shows that there are significant numbers

of commuters with a destination of Framingham, Marl\bor-

ough, Cordaville, Ashland, Westborough, and Northbor-

ough. Based on this information, 250 additional parking

spaces are recommended for this interchange.

App. 62

At Shoppers’ World on Route 9 in Framingham,

approximately 2.5 miles from the interchange, there is a

Massachusetts Highway Department (MHD) commuter lot

and a Massport Logan Express lot. Massport and MHD

may lose these parking lots when the leases run out in

1996. Since there are approximately 150 MHD parking

spaces and 300 Logan Express spaces at this location,

replacement could be considered as part of any MassPike

park & ride solution.

Figure 12 displays two possible sites for lots at this

location. One is a large piece of land owned by MassPike

adjacent to the interchange that could be developed to

accommodate a lot of 250 or 400 parking spaces. Another

option is to purchase or lease the site of a closed motel

opposite the Taco Bell restaurant on Route 9 eastbound,

mile southeast of the interchange. There are traffic lights

located within 500 feet of this motel site so that vehicles

could make “U-Turns” to access the Turnpike and the

parking lot. The motel would not need to be demolished to

provide the 250 spaces needed for the park & ride lot,

however, this location would be ideal for replacing the

parking spaces lost at the MHD lot. If these spaces were

relocated here, then the size of the parking lot should be

increased to 400 spaces which would require the develop-

ment of the entire piece of property as a parking lot.

Accommodation of Logan Express bus services and park-

ing spaces would require more space and construction.

£%,

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App. 64

COMMONWEALTH OF MASSACHUSETTS

TRIAL COURT GF THE COMMONWEALTH

MIDDLESEX, 8S. SUPERIOR COURT DE-

PARTMENT OF THE

TRIAL COURT

CIVIL ACTION

NO.: 974161

TIMOTHY K. HANNA and ?

CMA REALTY TRUST, _

Plaintiffs, )

9 )

MASSACHUSETTS

TURNPIKE AUTHORITY, )

Defendant )

AFFIDAVIT OF PETER PICKNELLY

1. My name is Peter A. Picknelly. | am currently the

President of Peter Pan Bus Lines, Inc. (hereinafter “Peter

Pan”).

2. I have continuously been the President of Peter

Pan since before 1994.

3. At some time in the past, Peter Pan did run

regularly scheduled bus service to and from the so-called

“park and ride” facility located in Natick, Massachusetts

at the “Shoppers World” shopping center.

~ 4. To the best of my knowledge and belief, neither I

myself, nor any other employee of Peter Pan was ever

invited to attend any meetings organized or conducted by

the Massachusetts Turnpike Avthority (hereinafter the

“MTA”) concerning facilities location of the MTA’s “park

App. 66

and ride” lot located at 1672 Worcester Road, Framing-

ham, Massachusetts near interchange 12 of the Massa-

chusetts Turnpike roadway (hereinafter the “Framiagham

park and ride”) or any other “park and ride” lot con-

structed by the MTA between 1990 and 1995.

More particularly, no one from Peter Pan was ever

consulted regarding any of the proposed locations of the

MTA’s park and ride facility at Interchange 12 of the

Turnpike roadway in Framingham.

5. Neither I, nor any other employee or representa-

tive of Peter Pan, was ever asked to comment upon or

provide suggestions relating to bus transit access prior to

the construction of the Framingham park and ride lot.

6. Assuming it is in fact so that the Framingham

park and ride lot waz opened to the public in November of

1994, Peter Pan did provide daily service on Mondays

through Friday according to the following schedule:

Departures: 6:15 and 6:40 a. m. and

Returns at: 5:55, 6:25 and 7:40 p. m.

7. Ax sometime early in 1996 the number of hours

during which Peter Pan provided service to the Natick

Shoppers World park and ride lot, or site were reduced.

As of April 3, 1996 Peter Pan promulgated a new

schedule. The schedule did not identify any service to the

Framingham park and ride facility. It has been alleged

that Peter Pan did provide expanded service to this facility

daily on Mondays through Fridays commencing in Aprii,

1996. Therefore, it must be the case that this location

became a so-called “flag stop.” Which means that Peter

Pan's buses went by the location in the mornings, but only

App. 66

stopped if a dispatch person signaled that there was one or

more persons to be picked up. Likewise, in the evenings,

the bus driver would inquire of passengers if any of them

wanted to go to the lot, and the bus would only stop there

if at least one passenger answered in the affirmative.

Based on the foregoing, I can not make any statement

as to the number of times Peter Pan buses went by this

location during the time the schedule which became

effective as of April 3, 1996 remained in effect.

8. Whatever service Peter Pan provided, commenc-

ing as of April 3, 1996 was part of its regular route service

between Worcester and Boston wiich also provided service

to other passenger drop-off and pick-up loctions.

9. Between 1994 and 1996, passenger use of Peter

Pan’s service from and to the Framingham park and ride

lot was consistently sparse. On many days Peter Pan

would only pick up two or three passengers. And it is

probably so that the company never picked up more than

ten people on any day.

10. In 1995, after the Massachusetts Highway

Department cut through the median and constructed a

new intersection at California Avenue and Route #9, the

level of passenger use of Peter Pan's service to Framing-

ham park and ride lot remained substantially the same.

11. As of June 26, 1996, Peter Pan adopted a new

schedule. Exhibit A attached hereto is a copy of that

schedule. It shows the service which Peter Pon provided to

the Framingham park and ride lot for as long as that

schedule remained in effect. Peter Pan adopted a new

schedule sometime in September, 1996.

App. 67

12. At no time did any representative of the MTA

ever contact Peter Pan about its offering to develop and

sponsor a program which would provide a subsidy to the

service at the Framingham park and ride which be suffi-

cient to induce Peter Pan to continue to operate the

service.

Eventually, as Peter pan determined that it was losing

money by servicing the Framingham park and ride lot it

Signed under the pains and penalties of perjury this

28 day of August, 2002.

PETER PAN BUS LINES, INC.

By: /s/ Peter A. Picknelly

Peter A. Picknelly, President

App. 68

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT DE-

PARTMENT OF THE

TRIAL COURT

TIMOTHY K. HANNA and ?)

CMA REALTY TRUST, ;

Plaintiffs, )

v. ) CIVIL ACTION

MASSACHUSETTS —

TURNPIKE AUTHORITY, )

Defendant. )

AVIT GEORGE H P.

I, George H. Burnham, Jr., do hereby depose and state as

follows:

1. My name is George H. Burnham, Jr., PE. and I

am certified by the Commonwealth of Massachusetts as a

Registered Professional Engineer in Civil Engineering and

work as an independent transportation consultant.

2. I was retained by the plaintiffs in the above-

captioned case to review the traffic planning and forecast-

ing used in connection with the eminent domain taking,

siting and construction of the “Park and Ride” facility

located at 1672 Worcester Road in Framingham, Massa-

chusetts (the “Subject Property”) and owned and operated

by the Massachusetts Turnpike Authority.

> 7 7

App. 69

18. Exhibit B shows the capture area for a “Park and

Ride” lot at Exit 12. The capture area outlined in Exhibit

B represents where approximately 75 percent of the likely

users will reside.

19. The capture area for a “Park and Ride” lot at

Exit 12 has a population of approximately 36,400 people

according to the 1990 US Census figures.

20. I reviewed the following documents which were

given to me by Attorney Laurano and have taken them

into consideration in formulating my conclusion and the

statements herein:

a. “Park-and-Ride Facilities - Guidelines for

Pianning Design and Operations,” January

1986, by the Federal Highway Administra-

tion;

b. “Procedures For Estimating Park and Ride

Demand In Large Texas Cities,” February

1987, sponsored by The Texas State Depart-

ment of “Uighways and Public Transportation

in cooperation with the Federal Highway

Administration;

c. “Commuter Rail Extension Feasibility

Study,” January 1990, by Stone and Webster

Civil & Transportation Services, Inc. See

Laurano Aff., { 28;

d. “Technical Memorandum —- Results of Inter-

view Survey At Millbury Park & Ride Post

Card Lot And Extension Lot,” December

App. 70

1992, by URS Consultants, Inc. See Laurano

Aff., 7 25;

Returned URS Park & Ride Post Card Sur-

vey cards bearing serial numbers “25000” to

“50000.” See Duffy Aff., 7 10;

“Technical Memorandum —- Park & Ride Post

Card Survey Preliminary Findings,” January

1993, by URS Consultants, Inc. See Laurano

Aff., J 26;

“Technical Memorandum ~ Park & Ride Fea-

sibility Study,” June 1993, by URS Consult-

ants, Inc. See McKinnon Aft. Ex. D;

“Park and Ride Lots in Massachusetts,” April

1993, by URS Consultants, Inc.;

Memo = “Interpretation of Recent Survey,”

April 25, 1995, by MHS Consulting;

Massachusetts Turnpike Authority Tran-

si/HOV Project, “Framingham Area Park

And Ride Lot Comparisons,” September

1995, by MHS Consulting;

. “Strategies For Improving Usage Of Massa-

chusetts Turnpike Authority's Park And Ride

Lot At Exit 12, Framingham,” November

1995, by Howard/Stein-Hudson Associates,

Inc.;

Hand-written notes on parking spaces re-

quired (undated), faxed by URS on March 14,

1996. See Laurano Aff. { 30;

. “HOV Lane Feasibility Lane Feasibility

Study, Park and Ride Demand Analysis,”

April 26, 1993, by URS. See Laurano Aff.

{ 29;

App. 71

Massachusetts Turnpike Authority Memo -

“Park and Ride Program for MassPike,” July

29, 1993, by Massachusetts Turnpike Author-

ity Planning. See Laurano Aff., {___;

“Evaluation of Development Proposals For

Massachusetts Turnpike Authority Owned

Parcels in Framingham, Massachusetts ~—

Public Meeting Workshop Summary and

Recommendations,” December 2, 1997, by the

Metropolitan Area Planning Council;

“High Occupancy Vehicle Lane Feasibility

Study — Working Paper #1,” December 1992,

by URS Consultants, Inc.;

“High Occupancy Vehicle Lane Feasibility

Study — Working Paper #2,” April 1993, by

TRS Consultants, Inc. See Laurano Aff. { 27;

“High Occupancy Vehicle Lane Feasibility

Study”— August 1993, by URS Consultants;

Inc. See McKinnon Aff. Ex. B;

“High Occupancy Vehicle Lane Feasibility

Study” — June 30, 1994, by URS Consultants,

Inc. See McKinnon Aff., Ex. C;

“Traffic Impact Report — Proposed Park and

Ride Facility Interstate 90 - Massachusetts

Turnpike Interchange 12, Framingham,

Mass.,” July 1994, by Vanasse Hagen Brus-

tlin, Inc.;

Robert A. Weant and Herbert S. Levinson,

PARKING, Chapter 7, 1990;

Transcript of Deposition-of Michael Sharff.

See Laurano Aff. { 10;

App. 72

w. Transcript of Deposition of Pamela Wessling

(2002). See Laurano Aff. { 6;

%. Report of Michael Sharff to Basil Tommy of

Turnpike Authority. Bates Nos. MT04093 —

MT04097; and

y. Transcript of De position of Leonard Barbieri.

See Laurano Aff. { 13.

21. I also visited the Subject Property to get a first-

hand view of the “Park and Ride” facility.

22. In Document 20(g), 20(1) and 20(m), URS used an

arbitrary and unproven Methodology to establish the

parking demand for all of the proposed “Park And Ride”

lots by ignoring the established procedures as found in

Documents 20(a)and 20(b).

23. Said documents 20(g), 20(1) and 20(m) demon-

strated that URS calculated 50% of respondents to the

postcard survey would become definite users of a “Park

and Ride” lot. There is no support for this determination in

historical transportation data.

24. URS ignored the MTA’s historical capture rate

data found in the MTA’s own survey of the existing “Park

and Ride” lots at Exit 11 in Millbury which demonstrate

8.2% of the peak period traffic entering the turnpike at

Exit 11 used bus service and 1.1% used carpooling (Docu-

ment 20(d)).

25. URS ignored the Worcester Rail study demand

modal split information in Document 20(c), (pages 5-9 and

App. 73

5-10 and Table 5-4) showing that if the commuter rail

service were extended to Worcester, that an expanded bus

service would not be a viable transportation option along

Route 9 east, thus “Park and Ride” lots to serve bus

commuters would be unnecessary. According to the June

1993 “Park and Ride” Feasibility Study, URS reviews this

document in its analysis. See McKinnon Aff., Ex. D, (Bates

No. 00243.)

26. URS ignored the findings included in Document

20(q) which demonstrated that 70% of the projected

parking demand would only occur if bus service were

established (see page 38).

27. URS failed to isolate answers to question 3(i) of

the postcard survey and analyze demand for a “Park and

Ride” under that question only, where all that is offered

the commuter is a free place to park. This failure was

substantial, given that the MTA failed to provide 20

minute bus service or offer significant other incentives to

carpoolers.

28. URS failed to clearly underscore the significance

of the fact that the postcard survey data was based upon a

multiple style question. The significance of the multiple

style question is that the respondent does not answer one

question at a time, but a question with related and contin-

gent components. In the post card survey, question # 3 is a

ten-part multiple style question giving the respondent the

chance to check off one or more answers up to all ten. At

Interchange 12, as with the other interchanges, the most

popular answers were a “discount toll progeam”(for two-

person carpools typically written in as a comment) and a

free parking lot. At Exit 12, the discount pregram response

received 49.8% and the free parking lot received 51.5%. If

App. 74

all the respondents who checked off a free parking lot also

checked off a discount toll, the maximum demand for what

was constructed, a free parking lot, was 51.5% minus

49.8% or 1.7%. Assuming that all of the 1.7% respondents

can be accommodated into carpools (a very unlikely

scenario), by factoring the sample to the entire AM peak

period at Interchange 12 gives 73 vehicles entering a

parking lot in the AM peak period. To estimate the amount

of parked cars, the 73 vehicles into the lot is divided by 2

for two-person carpools, which results in 36 parked vehi-

cles. For three person carpools, the 73 entering vehicles is

divided by 3 and multiplied by 2, which results in 49

parked vehicles at best.

29. URS failed to document what transportation

forecasting principles or past studies they relied upon in

determining in documents 20(c) (pp. 60, 66, Figures 21 and

22), 20(g), 20(1) and 20(m) the percentages of commuters

who would park then continue on their commute via bus,

vanpool or carpool.

30. URS failed to follow established transportation

engineering and planning procedures by not determining,

before projecting demand, the likely capture areas for each

interchange and the total number of turnpike users who

reside in the capture area.

31. A diagram depicting the capture area for the

Framingham Exit 12 proposed “Park and Ride” lot is

attached hereto as Exhibit B. According to 1990 US

Census figures and by factoring the town’s total population

by the percentage of area within the capture area, the

population of the capture area in Exhibit B was estimated

to be 36,400. Using the methodology and the capture rate

data for small “carpool-only” lots from documents 20(a)

App. 75

and 20(b), I have estimated the number of parked vehicles

per the population of the market capture area and popula-

tion capture rates of .0005 to .003 for parked vehicles per

the population of the market capture area to be between 7

to 43 parked vehicles at Exit 12.

32. This capture area indicated by Exhibit B also

represents the area where approximately 53% of the AM

peak period users who enter the Turnpike at Exit 12

reside, according to the survey data received by URS. This

necessarily means that approximately 47% of the motor-

ists entering the Turnpike at Exit 12 during their morning

commute reside outside the capture area of any “Park and

Ride” facility placed in the vicinity of Exit 12.

33. There is no data in the URS documents which

supports the initial demand for a “Park and Ride” lot with

more than 50 parking spaces for any lot situated on Route

9 in the vicinity of Interchange 12 per the lot design

guidelines found in documents 20(a) or 20{b), given the

data presented to the MTA by URS in document 20(f)

there is nothing which supports the conclusion that a

“Park and Ride” lot larger than 50 spaces situated on

Route 9 in the vicinity of Exit 12 would be fully used

without e significant 2-person carpool discount (as indi-

cated in the last paragraph of page 17 in document 20(f))

or the establishment of express bus service at 20 minute

intervals.

34. I reviewed the postcard survey which had been

delivered to the office of Attorney Michael Laurano.

Paralegal Marc Duffy inputted data from every postcard

being serial numbers “25000” to “50000”; the range of

cards reviewed was intended to be excessive so as to safely

App. 76

include within it the postcards distributed and returned

from Interchange 12.

35. Marc Duffy transferred the data on a spread-

sheet and then delivered the spreadsheet entries to me.

The data included the card serial number, the town of

origin, the ZIP code of the town of origin, the city/town of

destination, the ZIP code of the city/town of destination,

and if question # 3(i) (“free parking”) was the only re-

sponse checked off out of all answers available for postcard

question #3.

36. I arranged the survey data into a spreadsheet

file and sorted the serial numbers sequentially. I analyzed

the data for card sequence breaks and point of origin zip

codes and I determined that the postcards returned to

URS bearing serial numbers “34650” to “39200” were those

handed out at Interchange 12.

37. URS maintained 286 vetmned postcard survey

response cards within the range of serial numbers “34650”

to “39200”. URS’s postcard survey report presented to the

Turnpike Authority indicates that there were 284 re-

sponses for postcards handed out at Interchange 12. The

variation of 2 postcard summations is statistically accept-

able.

38. Because the Turnpike Authority did not establish

express scheduled bus service to the lot at Interchange 12,

did not establish vanpooling from the lot and did not offer

significant two-person carpool incentives other than free

parking, I calculated the demand for carpooling with free

parking as it was demonstrated in the postcard survey

results.

App. 77

I had already determined the portions of towns

repre ted in the capture area (see {4 17-19). From the

postcard survey results I determined how many vehicles

from each town that is part of the capture area entered the

turnpike at all interchanges and how many from each

town came from the capture area. I then determined the

likely number of vehicles which would enter the “Park and

Ride” lot at Interchange 12 from the capture area to be 27

vehicles.

40. In the next step, I factored the number of vehi-

cles entering from the capture area to the total vehicles

entering the lot and calculated thirty-six (36) vehicles

entering the lot.

41. I next calculated the number of vehicles that will

be parked in the “Park and Ride” lot. Previous transporta-

tion studies showed that carpools typically have 2 to 3

total passengers. Using 2-person carpools, the data avail-

able to URS in 1993 indicate that 18 cars will be parked in

the “Park and Ride” lot at Interchange 12. Using three-

person carpools, the data available to URS in 1993 indi-

cates that 24 cars will be parked in the “Park and Ride” lot

at Interchange 12.

42. Unless the MTA intended to cause mass transit

type scheduled bus service or 4 major two-person carpool

toll discount incentive program, the data available does

not justify a 250-space “Park and Ride” lot in the Exit 12

area. Additionally, given the common knowledge in Massa-

chusetts transportation circles that by January 1994 the

Worcester Rail Extension had become a transportation

reality, a “Park and Ride” dependant upon same origin and

destination express bus service would quickly become

unnecessary.

App. 78

43. Given the data presented to the Massachusetts

Turnpike Authority by URS in documents at { 20 (c), (d),

(f), (g), (m), (n), (p), (q), (r), and (s), there is nothing which

supports the conclusion that a “Park and Ride” lot larger

than 50 spaces situated on Route 9 in the vicinity of Exit

12 would be fully used without a significant two person

carpool discount program by the Massachusetts Turnpike

Authority as indicated by URS to the Massachusetts

Turnpike Authority in the last paragraph on page 17 of

document 20 (f) or the establishment or express bus

service with 20 minute head ways.

44. Massachusetts Turnpike Authority officials had

sufficient information in documents at 7 20 (c), (d), (f), (g),

(m), (n), (p), (q), (r), and (s) to understand that a 250-space

“Park and Ride” facility situated on the Subject Property,

or any other location suggested on Reute 9 in the Inter-

change 12 area, would be significantly underutilized under

the conditions as they existed. in 1994, which included the

opening of the Worcester Rai] Extension later that year.

45. Based on my review of the roadway configuration

of the area in the vicinity of Exit 12 of the turnpike, the

“Park and Ride” facility on the Subject Property suffered

major access problems at the time of opening.

46. The Subject Property is situated on the east-

bound side of Worcester Road (Route 9). Route 9 is a

divided highway.

47. At the time of the opening of the “Park and Ride”

lot to the public, users of the lot could only enter it from

the eastbound side of the road.

48. The location posed major difficulties for buses

and other vehicles approaching the “Park and Ride” lot

App. 79

from the east, which the vast majority of users would do

on their return trip from Boston in the evening peak

periods. These vehicles were forced to travel approxi-

mately .4 miles on Worcester Road (Route 9) westbound to

the first available turnaround road at Crossing Boulevard

and then .3 miles eastbound to the site and then .5 miles

eastbound to Country Club Lane and then finally .3 miles

to back where they first accessed Route 9 westbound for a

total of 1.5 extra miles through 3 signalized intersections.

See Exhibit C (commuter drive path).

49. These access difficulties posed serious drawbacks

to the use of the “Park and Ride” lot and significantly

diminished the likelihood that any “Park and Ride” lot

along the Route 9 corridor in the vicinity of Exit 12 would

attract its full potential usage. These drawbacks should

have been factored into the Exit 12 “Park and Ride”

demand calculation and adjusted the overall usage esti-

mate down by 10 to 20 percent.

50. It is my understanding that no costs-benefits

comparative analysis was done between alternative sites

or was factored into the MTA’s decision to build a “Park

and Ride” lot on the Subject Property. Comparative costs

to benefits analysis is considered prudent and good trans-

portation planning and is generally done when there is

more than one possible location in which public funds are

to be expended.

51. An example of a costs-benefits analysis follows as

such:

A public agency is faced with a choice of constructing a

transportation facility on one of two separate pieces of

property, “Site A” and “Site B.” Suppose that Site A is

private property and Site B is property owned by the

App. 80

public agency. If the given benefits of any facility equals

$200,000 in present worth dollars and the cost of construc-

tion of both sites is $25,000.00, but the cost of acquisition

of Site A is $100,000, whereas Site B has no cost of acquisi-

tion, then the costs-benefits comparison would be as

follows:

: $200,000

Site A = ---------4-s---2 oes - +--+ 16

$100,000 + $25,000

$200,000

Site B =---------F2--- 26-22... +. 8.0

is $25,000

Therefore, Site B would be a significantly greater value

over Site A.

52. Based on my assessment of the demand for “Park

and Ride” services at Exit 12, any expansion of the Subject

Property lot’s current size of approximately 110 vehicle

capacity would be unrealistic and completely unwarranted

based on the relevant data.

53. In connection with the construction of the “Park

and Ride” lot on the Subject Property, the Massachusetts

Turnpike Authority demonstrated a clear deviation from

fundamental principles of transportation engineering and

planning by:

a. Accepting and acting on a transpor*ation re-

port not stamped and signed by a Civil or

Traffic Engineer registered to practice Civil

Engineering or Traffic Engineering in the

Commonwealth of Massachusetts as required

by Chapter 112: Section 81M of the General

Laws (Certification of registration; prima

face [sic] evidence; seal of registrant);

App. 81

Not having a competent registered civil/

transportation engineer or planner on its

Planning and Development staff or on re-

tainer to review the uncertified reports of its

outside consultant to verify their accuracy

and conclusions;

Failing to conduct a benefits to cost analysis

between the alternate possible sites before

selecting the Subject Property for the “Park

& Ride” lot;

Ignoring information within the URS reports

related to the conditions necessary for a suc-

cessful “Park & Ride” lot to succeed at Exit

12;

Under the circumstances known to the Turn-

pike Authority, not establishing a small ex-

perimental “Park and Ride” lot to test

commuter demand in the vicinity of Exit 12.

Ignoring and/or not taking into cor-ideration

the commuter inconvenience assomated with

the return access problems connected with

the divided highway and turnpike entrance

and exit configuration.

Jointly with URS by publishing the HOV

Lane Feasibility Study of June 1994 (see

{ 20(s)) which contained erroneous assump-

tions, unsupported by the data available and

generally accepted transportation forecasting

principles on pages 60 and 66 and Figures 21

and 22 and later attaching it as an exhibit to

support the Turnpike Authority’s substitu-

tion petition letter of May 12, 1995 submitted

to the Massachusetts Department of Envi-

ronmental Protection.

App. 82

54. It is my opinion that based on my review of the

work done by and for the Turnpike Authority in connection

with the “Park and Ride” lot project on the Subject Prop-

erty, the Turnpike Authority failed to exercise the care

expected of a reasonable public transportation agency in

the data collection, data analysis, siting and selection of

the “Park and Ride” lot on the Subject Property.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.