No. 95-2552Commonwealth of Massachusetts Superior Court CIVIL ACTION NORFOLK, ss.
November, 1995
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
BRASSARD, JUSTICE.
Plaintiff Rita T. Andersen (Andersen) brings this action against defendant Town of Stoughton (the town) alleging that the town has effectuated a taking of Andersen’s property and has failed to comply with G.L.c. 82, §§ 21-24. Andersen seeks a preliminary injunction restraining the town from commencing any construction which will deny Andersen or Andersen’s tenants access to a public way.
BACKGROUND
The Andersen family operates Andersen’s Variety Store on a parcel of land which Andersen owns located at the intersection of Page Street and Turnpike Street in Stoughton, Massachusetts (the property). Andersen lived in an apartment above the store until her recent illness. Andersen’s property includes a driveway, garage and a paved parking area in front of and along the side of the store for use by store patrons and potential tenants. The only motor vehicle access to or from Andersen’s property and a public or private way is the frontage on Page Street.
For a period of time, the town informed Andersen that the intersection of Page and Turnpike Streets would be altered and reconstructed. The construction was to begin on November 27, 1995. The latest plans shown to Andersen indicate that the entire frontage of the property on Page Street will be blocked off the public way by a six inch granite curbing. The town cannot give Andersen a curb cut for motor vehicle access to the property because Federal regulations prohibit it. There is no parking allowed on the street.
Andersen argues that the loss of motor vehicle access will result in the failure of the business and render the apartment non-rentable. The town has not recorded an Order of Taking in the Norfolk Registry of Deeds nor has it purchased any portion of Andersen’s property. There is no dispute that no portion of the Andersen property is to be acquired or physically altered.
DISCUSSION
Andersen argues that the town effectuated a taking of her property without compensation as required by G.L.c. 79 and G.L.c. 80A. Andersen also claims that the town failed to comply with the procedures set forth in G.L.c. 82, §§ 21-24. The town argues that there was no “taking” and thus no need to follow the provisions of G.L.c. 82, §§ 21-24. The issue here is whether the town was required to follow the procedures pursuant to G.L.c. 82, §§ 21-24 before commencing the work affecting Andersen’s property.
A preliminary injunction may be granted if Andersen can show that 1) a failure to issue the injunction would subject her to a substantial risk of irreparable harm which outweighs any injury to the town if the injunction is granted and 2) she has a reasonable likelihood of success on the merits. Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980).
General Law chapter 82, section 24 allows town or city officials to acquire land for the purposes of altering or relocating a town way. See G.L.c. 84, § 24. This section requires the town officers to purchase the land or adopt an order for taking such land by eminent domain within 120 days after the town meeting at which the road alteration is accepted. Id. Eminent domain proceedings are to be instituted pursuant to G.L.c. 79 or G.L.c. 80A. Id.
Section 24 also allows persons sustaining property damage as a result of the alteration, relocation or repair of a town way to recover pursuant to G.L.c. 79. This section distinguishes property acquired by the town, and thus subject to eminent domain proceedings, and property damaged as a result of road work, but not subject to eminent domain proceedings. A property owner injured by the road alteration may be entitled to recover under G.L.c. 79, however G.L.c. 82, § 24 does not require the town to institute eminent domain proceedings where the property is damaged, but not acquired.
The town is required to follow the procedures set forth in G.L.c. 82, § 23, which states that no town way which has been altered shall be established until the plans to alter the town way are filed with the town clerk and accepted not less than seven days thereafter by the town at a town meeting.[1] This section does not set forth procedures to be followed when a town takes land by eminent domain nor does it provide for procedures to be followed when property is damaged.
Pursuant to G.L.c. 79, § 9 and § 10, a property owner may recover damages where no formal taking was made, but where a right to damages is provided in some other statutory provision. Sullivan v. Commonwealth, 335 Mass. 619, 623-624 (1957). General Laws chapter 82, § 24 provides an express statutory provision for recovery of damages for injury to land resulting from the alteration of a public way, where such land was not taken. Id. At 625, note 1.
General Laws chapter 82, § 24 provides the source of the right to recover damages for injury to plaintiff’s property and G.L.c. 79, § 12 provides the measure of damages. Id. At 625. General Laws chapter 79, § 12 distinguishes between damages resulting from a taking and damages resulting from injury to property not taken. G.L.c. 79, § 12. Special and peculiar damages to property may be compensable notwithstanding the fact that the property was never formally taken. Id. It does not follow that the town must institute eminent domain proceedings under G.L.c. 79 where the property owner was injured, but the property was not taken. Furthermore, the procedures set forth in G.L.c. 82, §§ 22, 24 apply only where property is actually acquired by the town.
Although the town may be liable for any damages to Anderson’s property resulting from the road alteration, the town was not required to follow procedures for a formal taking by eminent domain pursuant to G.L.c. 79 or G.L.c. 82, §§ 22, 24.
Accordingly, Andersen has failed to show that she has a reasonable likelihood of success on the merits for her claims of a taking without just compensation and violation of G.L.c. 82, §§ 21-24. See Packaging Industries Group, Inc. v. Cheney, supra, at 617. The damages which Andersen may be entitled to pursuant to G.L.c. 82, § 24 and G.L.c. 79, § 12 provide an adequate remedy at law and do not constitute irreparable harm. Sierra Club v. Larson, 769 F. Supp. 420, 422 (D. Mass. 1991).
ORDER
Based on the foregoing, it is ORDERED that plaintiff’s motion for a preliminary injunction is DENIED.
Raymond J. Brassard Justice of the Superior Court
DATED: November, 1995