June 15, 1983 Number 13

June 15, 1983 Number 13. James Gutensohn, Commissioner Department of Environmental Management 100 Cambridge Street Boston, Massachusetts 02202 Dear Commissioner Gutensohn: Your predecessor requested my opinion with respect to whether the Department of Environmental Management may, consistent with the provisions of chapter 79 of the General Laws, settle a land damages claim pursuant to G.L. c. 79, §39, Aparl triini the issue (if DPU approval, however, general municipal health regulations (such as those established by the boards of health of Brewster. Welltlcet and Barn.stable), purporting to prohibit or restrict the use of herbicides on utility company rights of way, might be unenforceable on other grounds which are beyond the scope of this opinion. C/. Busum Kilison Co. v. Siuilniry. 356 Mass. at 420 (general building code by-laws are applicable to electrical transmission lines and supporting structures, as opposed to buildings of a type usually subject to building codes); cf. also New Eiii>kmd Power Co. v. Board of Sclccimeii of Ameshury. 389 Mass 64 ( 1483) (municipal hoard of selectmen's authority to revoke a prior grant of street crossing IcKations for overhead transmission lines IS preempted by Legislature's delegation to DPU of broad authority to regulate construction and use of transmission lines); New Eiifilaml Tetephotie ami Telei;rai>h Company v Ciiy ofLowell. 369 Mass. 83 1 (1 976) (city ordinance requiring that all construction plans calling for open trenches in or near public ways must be approved by a Registered Land Surveyer or Registered Protessional Engineer was invalid as applied to a utility company subject to DPU jurisdiction because the utility's surveyors and engineers are exempt from regi.slration requirements). P.D. 12 121 after a pro tanto payment has been made to the landowner. For the reasons set forth below, I conclude that the Department's conduct, as your predecessor described it, constitutes an appropriate attempt to settle a land damages claim and is consis- tent with the applicable statutory scheme. Your predecessor informed me that the Department approved an award for the taking of 22.4 acres of land in Northbridge. That award was based upon the lower of two appraisals for the land in question, which were obtained by the Department pursuant to G.L. c. 79, §7A. The award was accepted by the landowner as a pro tanto payment, without prejudice to the right to claim a larger sum in proceedings before the appropriate tribunal. G.L. c. 79, §8 A. The Department sought to avoid the anticipated litigation of the damages claim by making a settlement pursuant to G.L. c. 79, §39. The amount of that settlement offer was less than the Depart- ment's second appraisal of the property. That offer has been accepted by the land- owner in full satisfaction of all claims against the Commonwealth. Your predecessor informed me that the Comptroller has not authorized payment of the settlement because of his view that the agreement may be inconsistent with the statutory scheme, in that after a payment pro tanto, the remedy available to a landowner is a petition for the assessment of damages as provided in G.L. c. 79, §14. The Comptroller's reluctance to act until this issue is resolved has prompted this opinion request. I begin with a review of the comprehensive statutory scheme which governs emi- nent domain takings by agencies of the Commonwealth and which provides reme- dies to aggrieved landowners. For purposes of this review, I have in mind that statutes must be interpreted by ascertaining legislative intent from the ordinary and approved meaning of the language used, " 'considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished.' " Registrar ofMotor Vehicles v. Board ofAppeal on Motor Vehicle Liability' Policies and Bonds, Mass. Adv. Sh. (1981) 415, 420 (quot- ing Board of Education v. Assessor of Worcester, 368 Mass. 511, 513 (1975)). "Futhermore, where two or more statutes relate to the same subject matter, they should be construed together so as to constitute an harmonious whole consistent with the legislative purpose." Id. Section 3 of chapter 79 provides that upon recording of the order of taking, title to the property taken vests in the "body politic or corporate on behalf of which the taking was made," and the right to damages vests in the former owner of the property. Section 8A requires the Department, within sixty days of the taking, to offer a reasonable amount as an award of damages to the former owner "either in settlement under section thirty-nine of all damages for such taking with interest thereon ... or as a payment pro tanto." If the former owner elects to accept the award as a pro tanto payment, "such election shall be without prejudice to or waiver or surrender of any right to claim a larger sum by proceeding before an appropriate tribunal." Id. A pro tanto payment and a settlement pursuant to section 39 are distinct remedial measures intended to provide just compensation for the governmental taking of private property. A pro tanto award is a partial payment made by the government upon a taking, without prejudice to the landowner's right to bring legal action for the full amount he believes is due. G.L. c. 79, §8A. A setdement under section 122 P.D. 12 39, unlike a pro tanto payment, conclusively disposes of a landowner's entitle- ment to reasonable compensation without litigation. G.L. c. 79, §39. The distinc- tion between these two approaches is longstanding. Prior to the enactment of G.L. c. 79, §8A, in 1959, section 39 provided that an agency, upon exercising its taking power, "may after the right to such damages has become vested offer in writing to pay [damagesl to the person entitled to receive the same .... Acceptance thereof may be either in full satisfaction of all damages so sustained, or as a payment pro tanto without prejudice to any right to have the remainder thereof assessed by the appropriate tribunal." That version of section 39 was interpreted to furnish a means by which either a settlement may be effected without a trial or an offer made which will reduce the liability for interest. We think that when the Legislature gave to the department power to take land by eminent domain "under chapter sevety-nine" it intended to give to the department full and complete power to carry the necessary proceedings through to a final termination, with all the incidents and alternatives set forth in c. 79. Willar V. Commonwealth , 297 Mass. 527, 528 (1937). Amendments to the statutory scheme have not altered the availability of settle- ment without a trial as a way of conclusively resolving an eminent domain claim. In 1957 and 1958, the Judicial Council of Massachusetts recommended amend- ments to section 39 which would "provide for a mandatory, formal, reasonable offer . . . and a mandatory pro tanto payment of the amount of the offer. ..." Thirty-third Report of the Judicial Council of Massachusetts, P.D. 144 (1957) at 72-73 (Thirty-third Report). See also Thirty-fourth Report of the Judicial Coun- cil of Massachusetts, P.D. 144 (1958) at 93; Mass. H. Jour. 354-55 (1959). The addition of section 8A, and subsequent amendments thereto and to section 39, implemented the Judicial Council's recommendations. The discretionary authority to offer a pro tanto payment was eliminated from section 39 and made mandatory in section 8A. ' However, the discretionary authority to settle damages claims was left intact in section 39. See Thirty-third Report at 72 ("[0]f all the land-taking cases few are tried to a jury. Most cases are settled."). As the statutory scheme now stands, section 8A requires the offer and payment of a reasonable pro tanto award within 60 days of the recording of the order of taking. Section 39 provides that: Whenever damages may be recovered under this chapter, the body politic or corporate liable for such damages may after the right to such damages has become vested effect such settlement of the damages with the person entitled thereto as it may deem to be for its best interest .... Every settlement under this section shall be in writing and in full satis- faction of all damages for such taking with interest thereon and taxa- ble costs, if any. The niandalory pni lanio of section 8A was designed "lo stop interest on |the amount of Ihc offer to the landowner], thus protecting taxpayers, and to enable the landowner, whose life, business and financial c<indition may be seriously interfered with, to get simw paymem with reasonable promptness without waiving his claim for more, if he wishes to .submit his claim lo a judge or jury." Thirty - third Report at Tl-li (emphasis in original) P.D. 12 123 There is nothing in the interplay of section 39 and section 8A which suggests that agencies do not have the authority to enter into a settlement agreement fol- lowing a pro tanto payment and conclusively dispose of a damages claim. Indeed, section 8A makes plain that an agency may offer either a section 39 settlement "of any damages" or a payment pro tanto without prejudice to a claim for damages. It would be an unreasonable construction of the statutory scheme to suggest that once a partial payment has been made and accepted pro tanto, a damages claim can be disposed of only by an action against the agency. Moveover, "[i]t would be strange if a department which has authority to take the land and to make the initial award required by §6 of c. 79 should be powerless when it becomes advis- able to effect a settlement under §39 of that chapter." Willar v. Commonwealth, 297 Mass. at 528. In this case, the Department made an award and, pursuant to section 8A, it was accepted. Subsequent to its acceptance, the Department and the landowner agreeed to a settlement which would conclusively dispose of all damages claims. There was no attempt to amend the pro tanto award or to make a second pro tanto award. Compare 1972-73 Op. Atty. Gen. No. 4, Rep. A.G., Pub. Doc. No. 12 at 46-47 (1972). Because the Department has the authority under section 39 to conclusively settle a damages claim outside the context of litigation, it is my opinion that the Comptroller may act favorably on the Department's request for release of the funds necessary to implement its settlement agreement. Very truly yours, FRANCIS X. BELLOTTI Attorney General ' A second pro tanto award could not have been made hccause the slatutoi^ lime resliclions prohibited it SeeG.L.c. 79. §6- Moreover, a second pro tanio payment would frustrate the ultimate purpose of the statutory scheme— the conclusive resolution of a landowner's claims against the Commonwealth. Sec Thirly-third Report at 72-73 124 P.D. 12