Today, the Town of Sudbury filed a complaint in Land Court against the Massachusetts Bay Transportation Authority seeking to enforce the prior public use doctrine.
The complaint, which asks for both a declaratory judgment and injunctive relief, argues that under the prior public use doctrine, public land acquired for a particular public use may not be diverted to another inconsistent use without plain and explicit legislation authorizing the diverted use.
The MBTA and Eversource have entered into a lease agreement for the railroad right of way in Sudbury to permit construction of an electric transmission line. The land was originally acquired by the MBTA through a combination of an indenture agreement and an eminent domain taking. Both the indenture agreement and the taking specifically stated that the use was to be for rail/transportation service. The rail has been inactive since the 1970s.
“The MBTA has entered into an agreement to lease the railroad right of way in a way that is inconsistent with the original use,” said Board of Selectman Chair Robert Haarde. “They have not sought special legislation and this lease should be declared illegal.”
The complaint seeks injunctive relief, which would restrain the inconsistent use and potentially halt permitting by Eversource to construct, operate, and maintain a 115 kilovolt underground electric transmission line in Sudbury and Hudson. Proceedings are ongoing before the Energy Facilities Siting Board and in other venues.
Since the right of way became inactive, the land has returned to its prior condition in many areas, and alterations contemplated under the lease will negatively impact wetlands and water sources, and clear cut trees from thirty to fifty feet wide along over four miles in Sudbury.
“The Town of Sudbury continues to be opposed to the Eversource project as currently proposed in the railroad right of way,” said Town Manager Melissa Rodrigues. “The Board of Selectmen is committed to looking out for the best interest of our town and will seek any and all relief in order to protect our community.”
A copy of the complaint can be found here: https://sudbury.ma.us/selectmen/?p=1361.