Whose Nantucket land? Couple, airport do battle

NANTUCKET -- When they moved to Nantucket from London four years ago, Eric Shaw and Connie Mundy had no qualms about buying a home near the airport. The house was modest by the standards of this high-priced resort island -- though it cost almost $1.5 million -- and the lot was tiny, but the rural setting, with ocean views and a crushed-shell pathway to the beach, was perfect for the couple's two young children and three dogs.

There was just one troubling detail the family didn't know: According to the town, their property belongs to the airport.

Shaw and Mundy are fighting the airport's claim on their land, which they say first came to their attention two years after they moved to Madequecham Valley Road, on Nantucket's scenic south shore. In a lawsuit against the town, the couple says local officials botched the taking of the land by eminent domain in 1941, when the municipal airport was first established, by failing to accurately describe its boundaries or properly record the acquisition in town records.

They say the town has never acted as the owner of the land, but has taxed holders of the property, allowed them to build there, and omitted the parcel from airport maps and plans. Shaw and Mundy say the airport has rebuffed their efforts to resolve the dispute outside of court. So they plan to appeal directly to voters next month at Nantucket's Town Meeting , where they will ask the town to vote to settle the case by accepting "a reasonable payment" in exchange for an agreement that they own the property, less than one-fifth of an acre.

"A lot of people think buying property on Nantucket is about investing and making money," Shaw said. "This is not about money. It's about where we chose to have our home and family, and where we want to stay."

Airport leaders acknowledge that it may sound callous, but they say the case is a simple matter of ownership. E. Foley Vaughan , the longtime chairman of the Nantucket airport commission, said he will tell Town Meeting voters that the land belongs to the airport , and he does not intend to give it away.

"It's never nice to take someone's house away, but there's no other answer to it," said Vaughan, a lawyer on Nantucket. "We will buy the house for fair market value, or they can move it somewhere else."

He said the home on the property may be used to house the airport manager someday, if the couple chooses not to move it.

Nantucket's finance committee and selectmen have recommended that the Town Meeting article not be adopted because the matter should be worked out in the courts. Paul DeRensis , town counsel, said in an e-mail that airport commissioners remain open to discussion with the couple; he also cautioned that the decision of voters would not be binding.

The roots of the dispute go back 66 years, to a time when land on the island was cheap and records were more loosely kept. Farmer Leslie Holm was the first to establish the airport site when he leveled his fields in the 1930s for a charter service and flying school. The town purchased the airfield, with two grass runways, for $7,600 in 1941. At a special Town Meeting in May of that year, residents voted to take land south of the airport by eminent domain "for the establishment, maintenance, and operation of a public airport."

The problem, according to the lawsuit brought by the homeowners, is that the town never bothered to determine the owner of the land it had taken. As a result, the record of the land-taking was never attached to the chain of ownership history for the parcel -- making the town's claim all but invisible to a prospective buyer, say Shaw and Mundy. They say they hired a lawyer to conduct a standard title search before they bought their home.

Vaughan, the airport commissioner, said the town kept the best records it could.

"Could they have done a better job? Maybe," he said. "But that's why you have title insurance, to compensate you in case a mistake is made."

Two years ago, reviewing a similar case, a judge in Nantucket Superior Court was less tolerant of the town's record-keeping practices. Justice Daniel A. Ford ruled in favor of another landowner, William Devine , who had sued the airport over its claim to his property after it stopped him from building there in 2001. Ford found that the town had done little or nothing to find and notify the owner when it took the land in 1968, had not properly recorded its seizure of the land, and had not enforced its property rights for decades.

The town appealed the decision, and the Supreme Judicial Court is scheduled to hear arguments in the case this month. The SJC ruling is likely to guide the outcome of Shaw's and Mundy's lawsuit, lawyers on both sides said.

The town has argued that a decision for the landowner would open the door to legal challenges of countless other eminent-domain takings by municipalities.

The town prevailed in another case that centered on the written description of the land taken in 1941 for the airport. A Land Court judge ruled that the taking order did not include land owned by developer Bruce Poor , but the Appeals Court reversed the decision in 2005 and granted the land to the town.

In the decades since the airport first took shape, it has grown to 1,000 acres. As the state's second-busiest airport, with 260,000 departing passengers last year, its leaders hope to build a new, $25 million terminal. Run by a full-time manager and a board of commissioners appointed by selectmen , the airport funds its own $13 million operating budget with commercial rents, fuel sales, and takeoff fees.

When Shaw and Mundy first moved to Nantucket, they saw their proximity to the airport as an asset.

Shaw, an investment adviser for an international energy company, earned his pilot's license on the island and keeps his plane at the airport. His children, ages 4 and 9, love watching planes land and take off.

Then came the letter from the airport, and the revelation Shaw describes as "a boulder hanging over our heads."

Shaw and Mundy say they will not consider leaving their home. Airport leaders say no other outcome is possible.

"It's unimaginable to me that the townspeople will look at this case and decide it's in the interest of the town to kick people out of their house," said Shaw. "We're hoping people will stand up and say to the airport, 'Do the right thing.' "

Jenna Russell can be reached at jrussell@globe.com.