Decision Narrows CBI's Case Against Town In Fish Pier Parking Suit

By: Tim Wood

Topics: Board of Selectmen News

Chatham Bars Inn.  COURTESY PHOTO

CHATHAM – A Barnstable Superior Court judge has ruled that the town's 2014 taking of an easement over property owned by the Chatham Bars Inn adjacent to the fish pier was valid, rejecting the inn's claims that the taking lacked a public purpose and was done in bad faith.

In granting the town's motion for summary judgment in a June 24 decision, Justice Gregg J. Pasquale left only one issue in the case to move ahead to trial: the amount the town paid CBI for the easement.

The town took by eminent domain 11,196 square feet of land, 7,130 square feet of which has been used as part of the parking area for fishermen on the lower lot of the pier for more than five decades. The town took another 3,870 square feet to expand the parking. The land was part of two CBI-owned parcels, 390 and 400 Shore Rd., was zoned residential and could not be used for any other purpose due to zoning and land use restrictions.

The town awarded CBI $100,000 for the easement.

“This is a significant plus for the town,” said Chairman of Selectmen Dean Nicastro. Dismissal of most of CBI's claims means the case can not concentrate on determining a settlement for the taking, he said.

In alleging that the taking was invalid because the town didn't comply with the law regarding an appraisal of the land, and that it did not serve a public purpose and was undertaken in bad faith, CBI “tried to obfuscate that central issue, which is the value, but throwing up these other claims which we felt lacked merit completely,” said Special Town Counsel Jason Talerman. In the decision, Pasquale ruled that the town did follow proper procedure in obtaining and filing an appraisal and that municipal parking may be considered a public purpose. He also rejected the inn's claim that the public did not benefit because the parking is reserved for commercial fishermen. Further, CBI “put forward no factual allegations that the taking was undertaken in bad faith,” he wrote.

Talerman noted that CBI lost a previous case on the taking in state Land Court, in which the inn claimed ownership of most of the fish pier's south jog, which had been conveyed to the town by the former inn owners in 1956. Talerman credited selectmen with standing behind the town's actions in the fact of CBI's continued legal challenges.

Before moving ahead with the eminent domain taking, town officials attempted to negotiate with CBI regarding the parcel, which was seen as critical to the continued operation of the fish pier. In the decision, Pasquale noted that in a recent year (the date is not specified), some 400 fisherman landed 12 million pounds of seafood at the pier worth approximately $12 million. The pier is also a major tourist attraction, he noted. In their order of taking, selectmen also cited safety concerns, stating that without adequate parking at the pier vehicles will park on nearby narrow streets, creating unsafe conditions.

“It was so important for the town to secure that right,” Talerman said. “There could be no compromise from us in giving that up.”

CBI rejected several offers before selectmen resolved to move ahead with the eminent domain taking. Talerman said officials remain open to negotiations with CBI regarding the amount of the award. In 2012 the town offered CBI $250,000 for the land. A 2014 appraisal of the land by Paul O'Leary and Associates put the market value at between $510,000 and $637,500, which was cut in half because the land cannot be used for any other purpose or be subdivided. That put the value at $250,000 to $320,000, and the town offered $100,000 for a permanent easement.

“We have always been willing to talk to them about perhaps a reasonable settlement,” Talerman said. “They have chosen not to take up negotiations. We stand ready to do that, and they've rejected every single olive branch we've put out.” Given that the inn now has new management (see story, page 5), Talerman said he hoped there would now be more willingness to talk.

A jury trial on the award amount will likely not be held until early next year. Even though juries can be fickle – a jury hit the town with a huge judgment when it took the former CBI golf course by eminent domain in 1999, although Talerman pointed out the land involved here is very different – the town is confident in its award. But even if the amount is increased, if will be worthwhile to secure use of the property for the future, he said.

“You almost can't put a price tag on its importance to the town,” said Talerman.

Nicastro said he hoped the town and CBI can reach an agreement on the valuation and save both the expense of a trial. Noting the new management at the inn, as well as the fact that it's the town's largest single taxpayer, he said he'd like to see “a good relationship” between the inn and the town.

A message left with CBI attorney Matthew Kozol was not returned.

The town and CBI remain in legal battles over several other issues, including disposition of the former bowling alley property and chauffeur's quarters on Chatham Bars Avenue, as well as use of a CBI-owned parcel off Claflin Landing. That issue is scheduled to go back to the zoning board of appeals due to “new information” on Aug. 9.

Email Tim Wood at twood@capecodchronicle.com