Despite Town Assurances, Abutters Remain Edgy Over Proposed Road Taking

By: Alan Pollock

Stage Harbor Road.  FILE PHOTO

CHATHAM — As part of a legal settlement with nine property owners, selectmen are moving ahead with a compromise plan to allow the town to take ownership of seven roads in exchange for a pledge not to allow sidewalks. But abutters who weren’t plaintiffs in the suit say the plan is ill-conceived, rushed, and doesn’t provide ironclad protections against future sidewalks.

Following a lengthy discussion Monday at which selectmen heard comments from property owners and read aloud a stack of emails from concerned residents, the board voted unanimously to accept the proposed layout for Battlefield Road, Cedar Street, Champlain Road, Port Fortune Lane, Sears Road, Stage Harbor Road and Stage Neck Road. Next, town meeting will be asked to take easements by eminent domain which will allow the maintenance of buried and above-ground utilities. That article requires approval by two-thirds of voters to pass.

The town executed a similar taking for the same area in 1997, but following a challenge by property owners, could not demonstrate that it had properly notified abutters in advance of the taking. The proposed easements taking on the upcoming town meeting agenda aims to correct that previous, faulty taking. The issue came to light after a divisive 2016 proposal to build sidewalks on Stage Harbor Road, a plan that town officials say they have abandoned.

“This item is not something that, again, this board desired to bring forward,” Selectmen Chairman Dean Nicastro told the meeting. “We had a lawsuit pending and we had to deal with it.”

Town Counsel Patrick Costello said that rather than seeking a standard full-width highway easement as was attempted in 1997, the town is seeking a public way easement that is confined to the roadway as currently paved, and a second maintenance easement that extends various distances out from the paved road. Under the agreement, the town is only allowed to disturb that maintenance easement for 10 specifically defined purposes, like the installation or repairs of utility poles; water, sewer, gas and storm drain systems; snow removal; signs; and the repair of existing sidewalks and curbs.

The proposed road layout aims to keep the roads at their current width, and effectively prohibits new sidewalks, Costello said. New sidewalks are not allowed in the proposed maintenance easements, and while they would be allowed in the public way easement, the layout is too narrow to accommodate them.

“As a practical matter, you can’t put sidewalks in the existing right-of-way,” since it would be “physically impossible” to include a new sidewalk or multi-use lane in the current 21- to 23-foot-wide paved area. This provision was designed to quell any concern about future sidewalks, he said.

Town Manager Jill Goldsmith noted that, should the town need to disturb the maintenance easement for any of the allowed reasons, it would be required to restore it to its previous condition once the work is complete. The proposed easement taking “actually has less impact to the current property owners than the 1997 easements that are recorded and on file,” she said.

Resident Anne Timpson said the proposed maintenance easements amount to 420,000 square feet on both sides of seven streets, comprising a 10-acre “land grab” by the town. Most of the residents whose properties will be affected are seasonal residents who “are not privileged to vote in this town,” though they pay a large share of the town’s property taxes, she said. While current selectmen say they are not interested in sidewalks in this neighborhood, “one board vote and one agenda item could change all that.” Timpson asked the board to table the proposal until a fairer road layout can be drafted, even if doing so requires a postponement of the town meeting vote.

Attorney Matthew McLaughlin of the Boston-based law firm Nixon Peabody said his clients are being asked to grant a six-foot-wide easement along one whole side of their Cedar Street property, while the town agreed to reduce the easement to as small as two feet for some of the plaintiffs in the lawsuit.

“That’s a benefit that my clients weren’t given the benefit of,” he said. If the current taking is approved, many property owners will likely sue the town for damages, McLaughlin said.

Costello argued that the town has an urgent need to correct the faulty 1997 taking, since it’s still not legally clear who owns the road, which creates liability problems. “That’s the urgency in resolving this matter,” he said.

But resident Elaine Gibbs disagreed, saying the ambiguity has been in place since 1997. During that time, the town even installed sewer lines on Stage Harbor Road, “and they did it without this road taking.” Gibbs urged selectmen to postpone action, saying she believes some out-of-state property owners might have not yet received notification of this week’s public hearing.

Town Manager Jill Goldsmith said the town held a public information meeting on the topic, though it was not legally required to do so, and it sent notifications of this week’s public hearing to property owners by certified mail on April 5.

Nicastro said he believes year-round residents and seasonal residents should be treated the same, but the town followed the regulations when it came to notifying abutters of the hearing.

“There’s also a responsibility, and I’ve said this before, on the part of a property owner to pay attention to what’s going on in a community that you own property in,” he said.

Asked whether there is an opportunity before the May 13 annual town meeting to revise the road layouts to reduce the size of the maintenance easement, Costello said it would be possible, “however that puts us on a very tight time frame.” It is possible that, to accommodate action on the article, town meeting would need to be adjourned to a date later in May or in June, or the article would need to be decided in a special town meeting. It is also possible that, at the discretion of the town moderator, the takings could be scaled back by amendment on town meeting floor, Costello said.

Selectman Peter Cocolis said that if any of those steps are possible, they should be pursued, since it might keep the town from facing future lawsuits.

Board member Shareen Davis said her families has centuries of history in this part of town, and she does not favor changes to the road. The maintenance taking allows only limited use by the town and would not preclude property owners from having hedges or walkways or parking vehicles on the land. “If we go in there and do something to repair something, it’ll be replaced,” she said.

Selectman Jeffrey Dykens agreed, saying it offers protections to those who oppose sidewalks along these streets.

“The way this is constructed is that you can’t have a sidewalk in that maintenance easement. You can’t have one,” he said.

Nicastro said he supports the proposed road layout.

“We made an agreement with the court to do this,” he said. Other property owners who are concerned about the size of the maintenance easements on their land should immediately contact Public Works Director Tom Temple, he said. If adjustments to the road layout are possible, and if the plaintiffs agree to the changes, and if the matter can be brought to a timely vote at town meeting, Nicastro said he would be open to the changes, “as difficult as it’s going to be, because it took two-plus years to negotiate with nine people.”