Metro

Across region, communities mull seizing private property

In Waltham, local officials plan to seize a monestery called the Congregation of the Sacred Stigmata -- home to some retired monks.

Suzanne Kreiter/Globe staff

In Waltham, local officials plan to seize a home to some retired priests.

On a quiet 47 acres in Waltham, six elderly priests pass their lives’ last chapter in peace and prayer.

But that tranquility is in jeopardy because of a looming proposal by some in the city to seize the land, expel the priests, and build a high school there.

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As it turns out, Brookline is not the only local community where officials are considering taking high-profile private properties for what they call a pressing public need. And as in Brookline, the prospect of municipal officials seizing private property has bitterly divided residents in the other communities.

In Brookline, Pine Manor College has vowed to fight the town’s threat to claim 7 acres of its campus. The owner of another Brookline property that the town is also considering taking has hired an attorney to negotiate with public officials. And in Lowell, a battle over where to locate a high school also includes talk of eminent domain.

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In all three communities, officials who support the takings call it an unfortunate last resort. “I don’t enjoy this,” said Brookline Selectmen Chairman Neil Wishinsky.

But those who oppose the tactic say officials simply aren’t trying hard enough to find other options.

“You don’t take somebody else’s property, least of all a religious order that has been a good neighbor for almost 100 years, when you have other options,” said Diane LeBlanc, the Waltham City Council president.

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Cities and towns have long used eminent domain to take small portions of land to help expand roads or sewer lines. But it is uncommon for them to go after such large portions of privately held land.

In Massachusetts, municipalities have the power to seize land as long as they show that it is in the public interest. Cities and towns must compensate the property owner for the land’s fair market value but otherwise have broad power.

The situation in Waltham has become complex and emotional. It has pitted the mayor, who supports taking the land, against a majority on the City Council that opposes it. And it has driven a wedge between parents who want a new school and older residents who back the priests.

The grassy hilltop campus in Waltham is home to the Stigmatine Fathers & Brothers, who operate a retirement home for priests and a center for spiritual retreats. Four working priests also live on the campus, and community programs including Alcoholics Anonymous use the campus, which is dotted with trees and religious statues.

“If the City of Waltham takes our property, we’re going to go out of existence. We’re kind of fighting for our lives,” said the Rev. Robert White, who oversees Stigmatines in the state and is the pastor of a parish in Springfield.

The Waltham campus’s longtime leader, the Rev. Bob Masciocchi, died in April. An attorney for the Stigmatines told the City Council in May that his death was due in part to stress about this land deal, according to the Waltham News Tribune.

But Waltham Mayor Jeannette A. McCarthy said the issue is not as simple as it might seem. The Stigmatines, she said, violated an agreement with the city not to accept offers from other developers or market the land — a contention they deny. She also said some city councilors subverted her authority in order to help the priests.

“With all due respect, the Stigmatines should be concerned that they did not comply with the legal agreement that we had,” McCarthy said Friday.

White acknowledged that the Stigmatines did hire a company to advise them how to manage the property more efficiently and did ask that company for a valuation of the land, but he said the order never intended to sell. The Stigmatine leadership in Rome also opposes selling, he said.

For now, the mayor said, the proposal to seize the land is dead, because a majority of the council opposes it. But just last month she sent a three-page letter to the city explaining why that location is still ideal for a new school.

Jim Lampke, executive director of the Massachusetts Municipal Lawyers Association, said eminent domain is common but always a last resort when a community can’t reach a voluntary agreement with a property owner. He said he has not seen communities abuse the power.

The US Constitution provides protection for landowners in the Fifth Amendment, which says they must be fairly compensated for property the government takes.

“It is a right that is afforded to the government because otherwise you wouldn’t be able to build roads, you wouldn’t be able to build schools or other public facilities,” he said.

Wishinsky, the Brookline selectmen chairman, said he has served in town government for 17 years and has never seen the town use eminent domain. It is only considering it now because the need for school space has become dire and the town is almost entirely developed, he said.

Taking land can set a dangerous tone if residents perceive that town officials are too cavalier, he said.

“That’s why I think we have to be very careful and we have to be very judicious and not use it easily,” Wishinsky said. “It should never be the first option.”

Although eminent domain has not been used in Brookline in recent memory, it has been considered. In 2015 a developer proposed a housing project that some in town opposed. Those residents sponsored a petition to seize part of that land to create a park, an apparent attempt to curtail the development proposal. The town ultimately voted to study the idea but never acted on it.

“One of the tactics that they tried to use to stop us was to try to do eminent domain,” said the developer, Chestnut Hill Realty founder and CEO Edward Zuker, who owns the Hancock Village development near the VFW Parkway.

Zuker said he has now reached an agreement with the town to build a less-dense development and deed some land to the town for green space. He is watching the other two eminent domain situations in town unfold.

The second eminent domain proposal involves seizing a building at 111 Cypress St. in order to expand Brookline High School, which officials say is overcrowded.

“Brookline has a phenomenal education system, it supports statewide affordable housing and everything else, but like everywhere else, it’s ‘not in my back yard,’ ” Zuker said.

Brookline Town Meeting voters in November will decide whether to seize the Cypress Street property. The owner, Hank Lewis, has hired attorney James D. Masterman of the firm Greenberg Traurig to help him fight the effort.

But landowners in Massachusetts have little recourse except to fight in court over the amount the town should pay for land it takes. These instances have created a cottage industry of attorneys who specialize in eminent domain, some who represent landowners and others who routinely work for municipalities.

In Lowell, a City Council meeting in June stretched into the early morning with yelling and jeers over a proposal to build a school in a suburban neighborhood rather than renovate the 186-year-old downtown school. The matter has still not been decided, but both options include controversial eminent domain proposals.

LeBlanc, the Waltham council president, said that even though the Waltham measure is dead for now, it’s likely to resurface, perhaps after the November election if new city councilors are elected.

She said the high school does need updates, but the divisiveness that has arisen over the Stigmatine site should prompt the city to cross it off the list for good.

“A decision that divides your city, it’s not a good decision,” she said.

Laura Krantz can be reached at laura.krantz@globe.com.
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