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GREATER BOSTON REAL ESTATE BOARD v. DEPARTMENT OF TELECOMMUNICATIONS AND ENERGY

438 Mass. 197 (2002)

GREATER BOSTON REAL ESTATE BOARD & others v. DEPARTMENT OF TELECOMMUNICATIONS AND ENERGY & another.,

Supreme Judicial Court of Massachusetts, Suffolk.

November 27, 2002.

Attorney(s) appearing for the Case

Thomas A. Barnico, Assistant Attorney General, for Department of Telecommunications and Energy.

Kenneth W. Salinger for the intervener.

Ieuan G. Mahoney for the plaintiffs.

The following submitted briefs for amici curiae:

L. Elise Dieterich, of the District of Columbia, for RCN Corporation.

Eric J. Krathwohl, Nicolas A. Kensington, & Harold B. Dondis, for XO Massachusetts, Inc., & others.

Michael E. Malamut for New England Legal Foundation.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, SOSMAN, & CORDY, JJ.

SPINA, J.

The Department of Telecommunications and Energy (department) and the Smart Buildings Policy Project appeal from a judgment of the Superior Court that declared 220 Code Mass. Regs. §§ 45.02 and 45.03(1) (2000) (regulations) to effect an unconstitutional taking of property without just compensation because the regulations compel access to private property for the physical attachment of wires or cables. The judgment also permanently enjoined the department...

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