This article is part of a series looking at key warrant articles leading up to the Town Meeting on May 6. Check out the Current’s 2024 Town Meeting Guide HERE.
On its face, the Marblehead Water and Sewer Department’s request seems simple enough: Let us onto a Neck property to fix a damaged drainage pipe. Once our work is complete, we’ll fill our hole, patch up the property and, with any luck, not return for decades.
But as a discussion at the Finance Committee’s recent hearing on Article 41 on the Town Meeting warrant made clear, the Water and Sewer Department has excavated something else — a long legal history in which two Massachusetts courts have established that the town has no claim to the property.
That set up what the current property owners’ attorney suggests will be a prohibitively expensive battle, if the town insists on continuing to try to use the eminent domain process to take a 20-foot-wide easement to gain access to the property.
The better course would be for the town to explore other options to reroute stormwater, attorney Michael R. Landers of Topsfield said at the hearing.
Town loses long court battle
The property in question is 297 Ocean Ave., but Article 41 references “Fishing Point Lane,” which became the subject of a two-decade-long legal battle in 1994, when the town posted a sign reading, “To the Water. Please Enjoy This Public Way.”
The sign had its desired effect, as what had been sporadic foot traffic on the lane swelled to “crowds” in the mid-to-late 1990s, the Massachusetts Appeals Court would later recount.
The increased use of the lane prompted then-owners Paul and Patricia McLaughlin to ask a judge to determine whether the public had any rights in the property. They filed a petition seeking to register title to three contiguous parcels of land on the Neck, including 297 Ocean Ave.
In 2001, a Land Court judge ruled that Fishing Point Lane was not a public way as a matter of law. While the town had included Fishing Point Lane in a laying out of roads on Marblehead Neck in 1918, it failed to take possession of it within two years, which under the controlling statute automatically voided the town’s action, and title to the property reverted to its then-owner.
Nothing that had happened in the decades since reestablished Fishing Point Lane’s status as a public way, the Land Court judge also ruled. The judge specifically rejected the town’s argument that it was entitled to a prescriptive easement because it had not assessed taxes on the property between 1918 and 1977, had discussed the maintenance of Fishing Point Lane at public meetings and had included the property in a 1995 grant application.
On March 23, 2007, the Appeals Court affirmed the Land Court’s decision.
A ‘scary’ prospect
Landers said his clients, Mike and Mary Ellen Kaczynski, had no way to anticipate that the town would be seeking to take what he characterized as “about a third of my clients’ property” when they bought it back in 2015. Article 41 describes the easement area as 6,710 square feet, while the Kaczynskis own 22,882 square feet of land, according to town land records.
Landers told the FinCom that the Kaczynskis’ property “is probably worth somewhere in the range of about $5 million,” perhaps a reasonable estimation of what it would sell for on the open market, given that the main property at 297 Ocean Ave. was most recently assessed at $3,154,900, while a small, contiguous undeveloped parcel that the couple also owns was assessed at $25,700.
“You can do the math in your head and see what the compensation may be from the town standpoint to pay to acquire an easement that, as written right here, will absolutely and completely restrict their ability to use one third of their property,” Landers said.
Landers added that the town would “probably face years of litigation” if it continued down the eminent domain road culminating with “a contribution in this that’s probably in the seven figures and maybe even upwards into the seven figures.”
Landers said he and his clients have appreciated their conversations with Town Administrator Thatcher Kezer and Water & Sewer Superintendent Amy McHugh to work towards a resolution. But the FinCom hearing offered a glimpse of just how far apart the sides are.
The way Landers sees it, the town is “trespassing” on the Kaczynskis’ pipe by moving stormwater through their property. At any point since they acquired the property, the Kaczynskis would have been within their rights to dig up the pipe and remove it or block the end of it, Landers said.
While that is not something the couple has contemplated, Landers called the prospect of the town taking easement rights “scary.”
“This could happen to anybody in the town who owns property,” he said.
No plans to stay
McHugh noted that the town has more than a few drainage and sanitary sewer pipes running through private property by virtue of easement rights.
What is happening at 297 Ocean Ave., the site of one of over 60 outfalls across town, is hardly uncommon, McHugh said.
“This is what we’re going to see with all our drainage pipes,” McHugh said.
She noted that such pipes can work just fine for 50 or even 100 years, but then repeated freezing and thawing might break down a clay pipe, or the bottom of a galvanized pipe might start to rot.
At the outfall at 297 Ocean Ave., the pipe behind the head wall has broken. Left unaddressed, the head wall will start to crack and fall out, and the water will recede further back into the property, McHugh explained.
The Water and Sewer Department has begun a design for the job, which would be put out to bid, as it is too big for the department to accomplish in house, McHugh said. Equipment would have to be brought onto the property to do the work. But once the work was complete, the department’s plan would be not to return for a long time, McHugh said.
“We wouldn’t be on this property all the time,” McHugh said.
The town and property owners disagree as to whether redirecting the stormwater elsewhere is an option.
Given the topography, creating new drainage in the area would be cost prohibitive, Kezer said.
“If there were other avenues for the town to address the drainage in that area, it would pursue it, but there’s not,” Kezer said.
But Landers suggested that the damage to the pipe may not be from ordinary wear and tear but rather from the town forging a connection that dramatically increased the amount of flow through it. He said he and his clients have seen engineering reports that indicate the town has options aside from digging up his clients’ property.
Throwing up their hands
Members of FinCom pressed — largely unsuccessfully — for more information about just how big of an expenditure it was being asked to recommend.
Passage of Article 41 would authorize the Select Board to “enter into any and all agreements to effectuate the purpose of this article.” Kezer said a professional appraiser would establish a dollar value for the easement based on the impact on the value of the property.
But that offered insufficient comfort to FinCom.
“We’re supposed to advise on financial matters, and I don’t even see any numbers,” Vice Chair Molly Teets said.
The committee then voted unanimously to recommend indefinite postponement of Article 41.
