Eminent domain takings not as easy as they seem
BY PETER B. BRACE INDEPENDENT WRITER
Eminent domain is a phrase tossed around whenever the town is faced with losing a major element of island life like the boatyard on Washington Street Extension or the Dreamland Theater.

But eminent domain is hardly a property taking mechanism used with any kind of regularity; for the most part, it is used for bike path right-of-ways and road takings.

Employed pretty much as a last resort when the town has exhausted all other options to either secure easements or to purchase properties at fair market value, there is a process to eminent domain that usually involves litigation and lots of court time, according to island attorney Arthur Reade, an expert in land law.

"Basically, the government has the power to take for public purpose any private property as long as it complies with any applicable statutory procedures, and provided that they pay the fair market value of the interest," Reade noted.

The taking authority, in this case, the Town of Nantucket, must first get the property appraised. The appraisal is based on what the property is worth now with some consideration given for the potential of what it could be worth if developed or improved in some way.

Using that appraisal amount, Reade said, the town then makes a pro tanto offer to the property owner. The pro tanto offer is a partial payment made by the town to the property owner, who then has the right to challenge the town for what it believes is a fair price for his land and or buildings.

If challenged, a jury trial then decides the final amount to be paid by the town. If the jury rules that that the property is worth less than the town's appraised value of it, the property owner must pay the town the difference. But if the jury finds that the property is worth more than the appraised value, then the town must pay the difference to the property owner to secure the real estate it is after, said Reade.

At the 2004 annual Town Meeting, Article 89 sought to take by gift, purchase or eminent domain - standard legalese for such Town Meeting articles - Great Harbor Yacht Club's property at 96 Washington St. Ext.

Offering a total of $20.9 million based on its appraisal of the property, the town said it wanted to convert the land and buildings into a multi-use property with space for meetings, shellfish propagation and water quality research, and as a base for a Nantucket Port Authority with a freight dock and emergency loading and unloading of Steamship Authority vessels.

At the time, the property was valued at $10,295,600, but Great Harbor had said it was not likely to part with its property for anything less than $50 million, and that its property was not for sale. Town Meeting 2004 voters sunk the effort anyway, 652-183.

The town's current eminent domain effort through Warrant Article 1 at tomorrow's Special Town Meeting, is to take the Dreamland Theater and its two lots. Now assessed at $5,800,800, local estimates put its total worth at between $9

and $10 million. I