New Bedford's 11th hour threat to sue MBTA raises eyebrows, concerns

NEW BEDFORD - Mayor Jon Mitchell's Administration "remains unwavering in its support" of South Coast Rail's two new pending city stations.

But that doesn't mean New Bedford can't seek more money from the Massachusetts Bay Transportation Authority for land taken for the project, stated City Solicitor Eric Jaikes.

But the way in which the city is going about seeking more money - threatening a lawsuit against the MBTA - is "unnecessarily risky," "perplexing," and "concerning" to three state legislators.

And a fourth - state Sen. Mark Montigny, D-New Bedford, who has been advocating for the rail line for more than a quarter century - said, "We don't want to deal with anything that will compromise our ability to keep the project on track. And I don't know how this is fruitful."

The city forwarded a two-count "draft" lawsuit to the MBTA, dated April 4.

It's the first count that has concerned state Rep. Bill Straus, D-Mattapoisett, state Rep. Chris Markey, D-Dartmouth, and state Rep. Chris Hendricks, D-New Bedford.

Land taking was not valid, according to draft lawsuit

It basically states the land-taking in question wasn't valid because it occurred before the city voted to become an MBTA district city at the November election.

That vote, which passed with more than 16,000 in favor and less than 4,000 opposed, was required before service to the stations could legally begin. Fall River also overwhelmingly passed a similar ballot question last November.

The two new platform stations are being developed in North New Bedford (Church Street) and downtown New Bedford (Whale’s Tooth parking lot).

The potential lawsuit states that land taken for the Whale's Tooth station came before the vote, making the process invalid. The land is for MBTA employee parking, MBTA train layover space and other MBTA operations, according to the draft lawsuit.

It states that the land should be returned to the city or damages paid.

The second count states basically that the state underpaid for the land involved, and seeks more money.

The draft lawsuit, which was prepared by the legal firm of Drohan Tocchio & Morgan of Hingham, states that the city spent $9.9 million to remediate an area that includes the land taken.

The remediation was done with Housing 70 Corporation of New Bedford, New Bedford Port Authority, and New Bedford Redevelopment Authority. They are listed as plaintiffs with the city in the draft lawsuit.

Mitchell Administration maintains its support of South Coast Rail

New Bedford City Solicitor Eric Jaikes stated, "The Mitchell Administration has long advocated for the South Coast Rail Project and remains unwavering in its support for it. Like the other property owners, the Administration believes the taxpayers of New Bedford should be fairly compensated for city land taken by the MBTA. We are hopeful that ongoing discussions with the MBTA concerning the city land ultimately will secure their interests.”

He said, “Four property owners, including two in New Bedford, have brought lawsuits against the MBTA in which they alleged that MBTA seized land for the South Coast Rail Project without offering fair compensation. Last year, a New Bedford Superior Court jury found in one of the lawsuits that the MBTA had failed to fairly compensate the owner of a Church Street property, and awarded additional damages. One of the lawsuits was settled out of court, while the other two remain pending."

The MBTA was ordered to pay a Michigan real estate firm an additional $1.2 million over the $2.32 million it spent on taking the firm's land at 387 Church St. for the Church Street station following a jury trial last October.

MBTA acted appropriately in the land taking

MBTA Director of Communications Joe Pesaturo stated in response to a request for comment, "The MBTA appropriately exercised its eminent domain powers as provided by the Legislature and paid fair market value for all the properties taken. The total price paid was $486,627."

He added, "The land that was acquired will be used for the New Bedford Station, including two smaller sections for access plazas, ADA/van and electric vehicle parking spaces and the train layover site, including a crew building and associated employee parking."

Straus said the city's legal claim was not typical. Usually, compensation for land taken is alleged to be insufficient.In this case, "The city's outside lawyers have also suggested that the MBTA does not even own the property it took and that is what poses for me a risk to get a start to service and potentially affects other MBTA projects around the state."

Straus said, "They want the land returned and I don't see how that helps anyone get commuter rail. If this is just a tactic to get more money from the T, this seems an unnecessarily risky way to approach it."

The MBTA has stated that rail service is scheduled to begin toward the end of this year.

Lawsuit not in New Bedford's interest

The lawsuit's not in the long-term interest of New Bedford by taking steps which work against a continuing partnership with the state, Straus said.

Markey also has concerns that the draft lawsuit would seek to reverse the land taking.

"I don't think there's a legal basis for it. But the idea that they're threatening to do it concerns me and concerns me in relation to the process which we've gone through to get South Coast Rail close to going over the finish line."

Markey added, "There is a lot of relationship building to get us to this point, and now to pose the threat of an adversarial proceeding to reverse it at the 11th hour is troubling. I don't think there's a logic to it. I'm perplexed by the whole thing."

Hendricks said, "I am very concerned that this suit will hold up the completion of the New Bedford station and throw a wrench in the SCR project as a whole. Alleging that the MBTA does not have the authoity for the taking to begin with is quite different than simply claiming that more money is owed based on fair market value."

He added the city could easily move forward with a lawsuit based on the market value issue alone. But, "If this suit is filed as is, a judge would likely order a temporary restraining order, halting and preventing any further construction of the station, delaying the project from its late 2023 anticipated completion date. Similarly, I do not agree with the city's assertion that MBTA lacked the authority to take the land."

Montigny said, "I don't think anyone, unless they followed it for decades, could realize how much time, money and political capital has gone into this."

Montigny said he can remember Gov. Bill Weld pledging to deliver rail to New Bedford by 1997.

Of the draft lawsuit, he said, "If it was meant for leverage, dump the thing in the bucket. Forget about filing it. I don't know what the use of the draft was. I don't care at this point other than it's wasting energy. Burn the thing and start negotiating on a better price."

This article originally appeared on Standard-Times: Mayor Jon Mitchell supports South Coast Rail despite lawsuit threat