CITY OF CAMBRIDGE, JAMES LEO SULLIVAN, as he is CITY MANAGER of the CITY OF CAMBRIDGE, and CONRAD C. FAGONE, as he is COMMISSIONER of the PUBLIC WORKS DEPARTMENT of the CITY OF CAMBRIDGE vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

This action for declaratory relief is before the court on plaintiffs' motion for a preliminary injunction to restrain defendant Massachusetts Bay Transportation Authority ("MBTA") from engaging in construction activity on a portion of Rindge Avenue in Cambridge, Middlesex County ("locus"). The verified complaint was originally filed by James Leo Sullivan, as he is City Manager of the City of Cambridge and Conrad C. Fagone, as he is Commissioner of the Public Works Department of the City of Cambridge, and was later amended to include the City of Cambridge as a plaintiff. [Note 1]

The City seeks a declaration that the purported eminent domain taking of the locus by the MBTA is invalid and of no force and effect.

The MBTA is currently engaged in the construction of a 500 million dollar rapid transit project ("The Red Line Extension, Northwest"), pursuant to which the MBTA has, during the past three years, acquired land in Cambridge and Somerville under its eminent domain powers. Plans for the Red Line Extension, Northwest provide for the construction of a 78 million dollar project including an MBTA station and 2,000 car parking garage on property located at the intersection of Alewife Brook Parkway and Rindge Avenue in Cambridge, which property includes the locus. Beginning in 1977 the MBTA, through a series of land acquisitions and eminent domain takings, acquired all the property at this location with the exception of the locus. All of the property was commercially zoned and supported several commercial buildings, all of which have been demolished during the past three years. The portion of Rindge Avenue that constitutes the locus is approximately 21,818 square feet and bisects and dead-ends on property now entirely owned by the MBTA. Demolition and other work is ongoing on the MBTA property surrounding the locus.

Arguments on the preliminary injunction were heard on December 5, and 10, 1980 and documentary materials including photographs, affidavits and plans were submitted to the court. The court viewed the property with counsel on December 10, 1980.

From all the information before the court, it appears that there is a reasonable likelihood that the following facts will be established at trial:

During the summer of 1980 the City and the MBTA held negotiations for the acquisition of the City's interest in the locus. [Note 2] Pursuant to these negotiations, on August 4, 1980 the City Council voted to discontinue the locus as a public way. An integral part of the vote, as set forth in a prefatory paragraph, was the understanding of the City Council that the MBTA would transfer to the City certain other lands located on Massachusetts Avenue in Cambridge and owned by the MBTA. [Note 3] The order further authorized the City Manager to execute an Exchange Agreement with the MBTA effectuating the reciprocal transfers of land. Subsequently the negotiations broke down and no further steps were taken by the City Manager pursuant to the Council vote.

By letter dated November 4, 1980 the MBTA gave notice to the plaintiff City Manager of its intention to take the locus by eminent domain pursuant to G. L. c. 161A and c. 79. Accordingly, sixteen days later, on November 20, 1980, the MBTA caused to be recorded Order of Taking No. 230 in the Registry of Deeds for Middlesex County. The MBTA gave notice of the taking to the City on November 28, 1980. At some point prior to the taking the MBTA invited bids on the construction of the station and garage and awarded a contract to the low bidder, Perini Corporation. The MBTA tendered a contract to Perini and Perini returned a signed contract. Although the MBTA has received authorization to execute the construction contract, subject to the approval of their counsel as to form and content, the contract has not yet been signed by the MBTA. The contract provides for delay damages, but these provisions become operative only after the contract is signed. The MBTA has represented to the court that no order to proceed will be issued to Perini until the court makes a determination on this motion.

On December 1, 1980 the City Council voted to rescind its order of August 4, 1980 discontinuing the locus as a public way, citing its misunderstanding of the existence of the purported agreement with the MBTA. The December 1, 1980 vote reaffirmed the authorization of the City Manager to execute an exchange agreement for the locus and land specified therein as owned by the MBTA.

Essentially, the City's legal argument is that the MBTA's general eminent domain powers of G. L. c. 161A §3(0) and G. L. c. 79 do not provide the MBTA the specific legislative authority needed to take the locus.

The City argues that the locus was a public way of record within the City of Cambridge on November 20, 1980, the date of the taking by the MBTA; that the City did not consent to the taking by the MBTA and, absent consent, the MBTA must receive specific legislative authorization to take land already in public use. The City further argues that the MBTA violated mandatory notice requirements contained in G. L. c. 79 §5C by failing to give the City notice of intent to take the locus at least thirty days prior to the date of the actual taking.

The MBTA defends the validity of the taking on three grounds.

First, the MBTA argues that the August 4, 1980 vote by the Cambridge City Council changed the status of the locus to something other than a public way or land in public use and, that since the land was not in public use at the time of the taking no special legislation was prerequisite to a valid taking. Second, the MBTA urges that even if the court were to find that the locus was a public way on the date of the taking, that sufficient legislative authority for taking the locus has been voted by the general court. The MBTA relies on G. L. c. 161A §B 3(o) (the MBTA's general powers of eminent domain) and on the special legislation appropriating funding for the Red Line Extension, Northwest. Finally, the MBTA argues and has submitted an affidavit stating that oral notice was given to the plaintiff City Manager by the MBTA's Director of Real Estate Management on three occasions, all at least thirty days prior to the actual date of the taking and that such notice is in compliance with the provisions of G. L. c. 79 §5C.

The standards for the issuance of preliminary injunctions have recently been reviewed by the appellate court of the Commonwealth. Packaging Industries Group, Inc. v. Cheney, Mass. (1980), Westinghouse Broadcasting Co., Inc. v. New England Patriots Football Club, Inc., Mass. App. Ct. (1980) [Note a] In determining whether or not a preliminary injunction should issue the court must evaluate both the plaintiff's probability of ultimate success on the merits and the risk of irreparable harm if no injunctive relief is granted. The court must then balance this against a similar risk of irreparable harm to the defendant which might occur if the injunctive relief issues.

For the reasons set forth below, I rule that although the City has demonstrated a reasonable likelihood of success on the merits, it has failed to show that it will suffer irreparable harm if injunctive relief does not issue, and the motion is, therefore, denied.

1. Likelihood of Success on the Merits

There is a reasonable likelihood that the City can establish that the taking by the MBTA involved the taking of land in public use. First, although it is undisputed that on August 4, 1980 the City Council voted to discontinue the locus as a public way, that vote was conditioned upon an exchange of land between the City and the MBTA. The Council's mistaken belief as to the existence of an essential condition upon which the discontinuance was premised invalidates the vote. See Sears v. Fuller, 137 Mass. 326 (1884). Second, the vote taken by the City Council is only one step necessary to effectuate the discontinuance of a public way. Read in its entirety, the vote of the City Council authorized the City Manager, who was negotiating with the MBTA, to execute the Council order. No steps toward this end were taken due to the breakdown of negotiations. Although G. L. c. 40 §15, upon which plaintiffs rely, is not applicable to the instant case [Note b] the Supreme Judicial Court has relied on the reasoning of section 15 to uphold the City Manager's authority and discretion to negotiate terms of an agreement based on a City Council vote. Sancta Maria Hospital v. Cambridge, 369 Mass. 586 (1976). Under the circumstances of this case it is likely that the plaintiffs will establish that the City Council vote of August 4, 1980 did not cause the locus to be legally abandoned as a public way within the City of Cambridge without further action by the City Manager pursuant to that vote.

The MBTA argues that, even if the locus was a public way on November 20, 1980 (the date of the taking) the taking is authorized by G. L. c. 161A §3 (0) clause (ii).

I rule that the plaintiffs have a reasonable likelihood of establishing that the taking was not authorized by either clause (i) or clause (ii) of that section. G. L. c. 161A § 3(o) clause (i) provides that land devoted to any public use may be taken by the authority only

"(i)if any substantial interference with such public use is temporary or any permanent interference therewith is not substantial, or both .... Interference with the public use of a street ... shall not be considered to be substantial unless the interference with the traffic ... is substantial."

The MBTA argues that permanent interference with the locus is not substantial for two reasons. First, the locus is surrounded by and dead-ends on property owned by the MBTA. Second, prior to the taking, the portion of Rindge Avenue that constitutes the locus was not travelled by the general public and would presently serve no purpose to the general public. While these arguments are supported by the information before the court, including information derived from viewing the locus, it is difficult to characterize the total and permanent destruction of the locus as insubstantial interference.

There is a reasonable likelihood that the taking was also invalid under G. L. c. 161A §3(o)clause (ii) which provides that land devoted to public use and not authorized by clause (i) may be taken upon "providing equivalent land for such public use." Although the MBTA represented during oral arguments that it is ready to tender to the City an equivalent parcel adjacent to the MBTA property upon completion of the construction, there was no reference to offering of equivalent land in the order of taking. I rule that G. L. c. 161A §3(o) clause (ii) contemplates the tender of equivalent land prior to or simultaneously with the taking of land and that it is likely that the plaintiffs will establish at trial that such tender, if made, was not timely.

The City further urges that land in public use cannot be taken absent specific legislative authority and that no specific legislation has been enacted relative to the MBTA taking of the land in issue. It is well settled that "land appropriated to one public use cannot be diverted to an inconsistent public use without plain and explicit legislation to that end." Higginson v. Treasurer and School House Commissioners of Boston, 212 Mass. 583 , 591 (1912).

It is the MBTA's position that, in addition to the general eminent domain powers delineated in G. L. c. 151A §3(o), specific legislative authority to take the locus is given in section 3(g) (MBTA may establish off-street parking as needed) and section (k) (MBTA may provide for the construction, extension, modification or improvement of mass transportation facilities in the area constituting the MBTA district). The MBTA further relies on legislation appropriating funding for the Red Line Extension, Northwest.

I am not persuaded that the legislation upon which the MBTA relies is sufficiently specific to authorize the taking of land devoted to public use. General Laws c. 161A §3(o) is only one of the MBTA's enumerated powers and must be read in conjunction with G. L. c. 79 and 80A. I rule that c. 161A §3(o) cannot be construed as conferring upon the MBTA a "roving power of eminent domain." Commonwealth v. Massachusetts Turnpike Authority, 316 Mass. 250 (1963). I therefore rule that it is likely that the City will establish at trial that the MBTA lacked the requisite specific legislation to take the locus by eminent domain.

Finally, the City argues that the MBTA failed to comply with the mandatory notice requirement of G. L. c. 79 §5C, which provides that notice of intent to take property must be given to the owner "at least thirty days prior to the date of the actual taking." Chapter 79 §1 provides that those upon whom the authority to take property by eminent domain is conferred must, prior to adopting an order of taking, first comply with "all the preliminary requirements prescribed by law." Failure to comply with these requirements will invalidate a taking.

The MBTA has submitted an affidavit of William Casey, Director of Real Estate and Management, stating that he told plaintiff City Manager that the MBTA would take the locus by eminent domain if the negotiations between the MBTA and the City were unsuccessful. According to the affidavit all of these conversations took place at least thirty days before the actual taking. However, it is doubtful that these oral statements made during negotiating sessions come within the statutory meaning of notice. In addition, the City has submitted an affidavit by plaintiff City Manager stating that at no time did any person from the MBTA represent to him that the MBTA would take Rindge Avenue under general eminent domain power and that specific legislative authority was needed to take the locus. It is agreed that written notice was not given by the MBTA to the City until November 4, 1980, only sixteen days prior to the recording of the order of taking. I therefore rule that it is likely that the plaintiffs will establish at trial that the MBTA failed to comply with the notice requirements of chapter 79 and that the MBTA's purported taking without sufficient notice is invalid.

From all the aforesaid information I conclude that there is a reasonable likelihood that the City will prevail upon the merits at trial.

2. Irreparable Harm

In order to succeed on a motion for a preliminary injunction the moving party must show that it may suffer loss that cannot be vindicated should it prevail after a full hearing on the merits. Packaging Industries Group, Inc. v. Cheney, supra at 1196.

For the reasons set forth below, I rule that the plaintiffs have failed to show that they may suffer a loss of rights that cannot be vindicated should they prevail at trial.

In the context of this case the City claims, and it is undisputed, that unless injunctive relief is granted it will be forever foreclosed from maintaining the locus as a public way because MBTA construction will begin immediately and the garage will be built on the locus. The MBTA asserts and I agree, that even though the destruction of the locus will be permanent, the harm is de minimus because the locus no longer serves any useful public purpose as it is surrounded by and terminates on MBTA property.

While at one time the locus may have been used as a public way, that use, for all intents and purposes, has been obliterated by the MBTA's lawful land acquisitions and demolition on the property surrounding the locus. The portion of Rindge Avenue that constitutes the locus bisects MBTA property, goes nowhere and dead-ends on MBTA property. Thus, even though there is no question that the public use wil be eliminated, it is specious to characterize the elimination of this use as harmful.

The City has also argued that the MBTA's actions subject the plaintiffs to tort liability from the general public if the taking is ultimately ruled unlawful ab initio. This situation, while arguably possible, does not constitute a sufficient potential irreparable harm for the City to prevail on its motion. In addition, the MBTA has represented to the court that it stands ready and willing to indemnify the City against such risk.

Finally, the City argues that the obstruction of the locus is a present danger because it blocks the City Fire Department's access to brushland located on the northwest perimeter of the MBTA property. Apparently the fire department is often required to put out brushfires set by local teenagers at this location. While I recognize that the fire department needs access to this land, my view of the property reassured me that the fire department has ample alternative access via a paved "haul road" constructed by the MBTA on the perimeter of its property.

Thus, any harm suffered by the City can be vindicated by money damages, either by a petition for assessment of damages pursuant to the eminent domain taking or, if the taking is found invalid, awarded to the City after a trial on the merits. There is no question that eventually the locus will be acquired by the MBTA, either by agreement with the City, or by the valid exercise of the MBTA's eminent domain powers. The City has failed to show to this court good reason to delay the MBTA's construction at great expense to the public who will ultimately bear the burden of that delay.

For all the foregoing reasons, I rule that the plaintiffs' motion for a preliminary injunction be, and, hereby is, denied.

So ordered.