Presented at the
Tenth Annual National Conference on Private Property Rights
Property Rights Foundation of America, Inc.
Albany, N.Y. - October 14, 2006
I live in the Village of Haydenville within the Town of Williamsburg in western Massachusetts. I am an example of a private citizen becoming insanely involved with property rights versus special interest groups who would take my property for their own recreational pleasure.
I possess over ten years of documentation to support my belief that these rails to trails groups mislead the public to further their own activities. This disingenuous attitude in pursuing their goals for converting any old railroad right-of-way into a bike path, regardless of ownership and using our tax money, can not be allowed to continue unchecked.
I am convinced the only certain method to stop them dead in their tracks is via the funding from the federal and state highway departments and by demanding that their own guidelines are strictly adhered to by the planning agencies. It is a horrific political process, which has run amuck with no one responsible or accountable for anything, all the while spending billions of tax dollars.
The major theme throughout the entire grant process, as mandated by Massachusetts General Law (MGL), includes the federal and state highway departments and every other state agency and municipality, is public process, which translates to the entire public. I was excluded from this public process while only proponents of the project were invited to participate. Apparently, I am intelligent enough to own property and pay taxes, but just to narrow minded and selfish to be able to grasp the overall good of a public way through my yard without my permission.
As we speak, sitting on the desk of the Federal Highway Department is a map and documentation regarding the terminus of a bike path referred to as the Northampton Extension to Williamsburg. This has been approved and is listed in the Transportation Enhancement Programbetter known as the TIP reportfor 2007 funding under federal Congestion Mitigation and Air Quality, or CMAQ.
Before the current plan was adopted, another terminus had been approved under CMAQ funding, with the accepted paved end point at the Northampton/Williamsburg town line. The town line is a few miles in the middle of the woods from any roads or access points. I'm guessing that people would have then just turned around and come back the same way on the paved path. One problem here is the fact that according to federal/state guidelines, a bike path needs a proper terminus. It might include a park, a highway, or some logical end point, but not the middle of the woods.
This plan was submitted by the city planner in Northampton and then approved by all agencies involved and was continuing on its merry way. I had brought this terminus issue up with all the folks involved with making the proper decisions and finally presented it to the Federal Highway Administration (FHA) as nothing was addressed.
The FHA agreed with me this past March, pulled the funding and gave instructions to the Metropolitan Planning Organization that it would be necessary for Northampton to present a proper terminus to the Pioneer Valley Planning Commission within a few months in order to hang onto the funding. Hence the new and approved terminus but the same issues.
Add to this the fact that in the spring of 2005, the mayor in Northampton, the city council, town counsel, and the city planner took by eminent domain an easement on the railroad right-of-way to extend the bike path to the town line in Williamsburg. Within this "taking" exists four acres of cemetery property belonging to St. Mary's Church in Haydenville.
According to attorney John Egan, who represents the Archdiocese of Springfield, it was an illegal "taking" because, and I quote from a letter dated April 2005 to Northampton's town counsel:
"Any taking to be lawful must follow the requirements of General Laws Chapter 79. That chapter clearly requires, before any taking, a title determination and then an appraisal of any interests in the locus. See GL c.79 sections 1, 3, 6, 7A, 8A, and 12. Takings are not vehicles for resolving title questions. Further the suggestion that the SJC opinion did not resolve the title issue because the case eventually settled is incorrect. Clearly, the opinion drove Mass. Electric to settle because their claim became untenable. Finally, appraisals of the land to be taken and all interests therein are a prerequisite to any lawful taking. See GL. c.79 sections 8A, 12 and 27."
Attorney Egan also notified the Pioneer Valley Planning Commission. I believe this will be settled in court.
The project is still listed under CMAQ funding, the project is listed in the TIP report for 2007 and should be going out for bid in the spring. According to all the printed guidelines, only those projects with a secured right-of-way will go forward and, of course, there still is no available funding for hostile eminent domain. So the City of Northampton can not prove clear title to the land it has claimed as its own for this paved path, all the while using federal/state Enhancement funding.
The facts behind this particular terminus are a microcosm of the entire grant process as I have come to understand it. First, the latest approved planned terminus is coming out onto a dead end street that has been in litigation for a few years, as the status of the road is in question as to whether it is even a public road. Second, CMAQ funding is supposed to be used to improve the air quality in any given location and there is no traffic in the middle of the woods. Third, abutting this road is a parcel of land that is proposed to be subdivided. The proposed bike path is to go through this subdivision as well, but this is also in litigation. Numerous subdivision plans have been rejected over the past ten years and the developer is suing either the City of Northampton, the Planning Board or both.
So what we have here is 1.5 million dollars of tax funding approved for fiscal year '07. I have been assured that neither the federal or state highway departments intend to sign off on this project until all the i's have been dotted and the t's crossed. In other words, no money without clear and proven title.
This is all well and good, but according to all the rules,
regulations and guidelines, this should have been taken care of
ten years ago. And the design, survey and acquisition for this
same property has already spent hundreds of thousands of tax dollars
under fraudulent grant approvals.
Now, there really are guidelines pertaining to any grant application.
The Grant Process
As I have come to understand the grant process, it begins simply with almost anyone filing a grant proposal with the local planning agency. In our case, Pioneer Valley Planning Commission received a grant application from the city planner in Northampton.
Within this planning agency, the Enhancement grant then proceeds to the appropriate Transportation Enhancement Steering Committee, which is a subcommittee of the Joint Transportation Committee (JTC). The JTC reviews all Enhancement grants and ranks proposals within its jurisdiction. The JTC is an advisory committee to the Massachusetts Planning Organization and to the Executive Commission. This Executive Commission also has the oversight of the local planning agency. The steering committee and the JTC would then approve and forward the grant to the Massachusetts Planning Organization.
Once approved by the Massachusetts Planning Organization, the grant would continue on upwards to the Executive Office of Transportation and Construction (currently changed to the Executive Office of Transportation, or EOT) of the Massachusetts Highway Department, where the Enhancement money is approved and awarded around the state, according to the TIP report.
The components of the grant process are design and survey, appraisal and acquisition, and, finally, construction. Each step requires a separate grant with funding sources and has specific requirements as dictated by state and federal highway guidelines.
This TIP report is of the utmost importance and dictates what project is completed in any given year. A project can not even be considered without first appearing in this report and projects may stay in this report for many years.
In 1991 the federal Intermodal Surface Transportation Efficiency Act (ISTEA) was signed into law for six years, to be used solely for Enhancement programs (any non-motorized forms of transportation). In 1998, the Transportation Efficiency Act for the 21st Century (TEA-21) was implemented for the next six years. We are presently operating under the new federal guidelines for enhancement funding projects under SAFETEA-LU. (1)
In 1995, according to then Secretary and MBTA Chairman, James Kerasiotes, "Only those projects that have successfully run the gauntlet of public hearings, design reviews, right of way acquisition and environmental permitting can appear in this state TIP report, since all of these steps in the process must be completed before the project can be advertised for bids as a federal aid project".
And according to the federal highway department guidelines, "there will be no Federal Highway money spent through any Enhancement Programs to take land by hostile eminent domain." The FHA advises Massachusetts Highway Department to do the same, so the State does not advocate taking land under any hostile conditions either.
As it stood in 1995, the Enhancement program under ISTEA was a new program with explicit guidelines. However, with lack of supervision, responsibility or accountability, these guidelines were not followed as written and the grants submitted during this time period and after are greatly lacking in any proper procedure. The same may be said for TEA-21 and presently remains not much improved under SAFETEA-LU.
At one point, we were informed by the Pioneer Valley Planning Commission that the funding for our project was "earmarked" funds secured by Congressman John Olver and that Williamsburg could not be removed from the TIP report unless the federal laws were changed. This turned out to be unfounded, as eventually the town was removed from any further listings without any legalities. The grant just vanished.
As a life-long resident of the Commonwealth of Massachusetts, I am greatly concerned with the agenda of the taking of private property for special interest groups and I will summarize my personal experience from 1995 to the present:
From the inception of this project through the present, RICH has the entire story documented in writing and/or videos. About the only thing missing is the original town meeting tape, as that tape somehow disappeared. We were a local group of ordinary tax-paying citizens whose property rights were literally being stripped away by a group of people who would stop at nothing to obtain their goal of a bike path. The misinformation, outright lies, and the colossal cover-up of the entire process were and continue to be outrageous. They did lip service to the abutters but would just as soon have done away with us as have us stand in the way of their dreams.
But stand in the way we did and not quietly.
Given the circumstances and the proven fact of no public participation and the breaking of established laws, why were we still in this TIP report as a viable project and why is Northampton still in the present TIP report with possible funding in 2007?
From April 1995, I have contacted every Governor's office, just about everyone at Massachusetts Highway Department including the many commissioners, the entire Right-of-way Department in Boston, the Directors in Districts I and II, and many other folk in charge of funding these enhancement projects. I have contacted the FHA. I have contacted the Attorney General's Office, the Inspector General's Office, the Treasurer's Office, the Secretary of State's Office, our District Attorney's Office, U.S. Senators Ted Kennedy and John Kerry, Congressman John Olver, State Senators Stan Rosenberg and Andy Nucifero, our State Representatives and more attorneys than I can even count at this point. If there was anyone I missed I just did not know he existed.
Since 1995 members of RICH attended the bike path committee meetings in both our town and Northampton, our town meetings, the Select Board meetings every other week, the once-a-month JTC meetings, the four to six-times a year Massachusetts Planning Organization meetings, and every other meeting which would give us documentation or information to protect our property from thieves. For the past two years I have been the town-appointed representative to the JTCto no avail.
Other members of RICH and I have appeared on the television news. I have done radio interviews locally and in Boston, appeared in newspaper articles in The New York Times, the Boston Globe and countless times in our local newspapers, not to mention all the court appearances.
I vowed years ago that I would not give up on this project until I could find the responsible party or parties for such a gross miscarriage of public process and the trampling over of private property, all the while spending my tax money to do it. Well, I am still here today, still looking for that answer. What I have found is that no one is responsible, let alone accountable.
Our local past Select Board said that the people in town wanted a bike path. The city planner in Northampton submitted the grant because he was told to do so; he was just handling the paperwork. The Pioneer Valley Planning Commission said that the City of Northampton submitted a grant and they don't have a thing to do with it, just pass it along. The JTC said that the grant came from the Pioneer Valley Planning Commission recommendation as a high priority project, so it's not them, but the Massachusetts Planning Organization through the EOT of the Massachusetts Highway Department and Massachusetts Highway Department approved it via the right-of-way people. The right-of-way people claim that they only sign the paperwork for the funding and have to assume that everything was done correctly and that all the guidelines were followed before it gets to them.
Two days after our lawsuit was filed in 1998, the founding four members of RICH met in Northampton with four top-ranking FHA officials. We had met one of these gentlemen at a Massachusetts Planning Organization meeting and had requested a meeting regarding the guidelines for the public policy process. They gave me the correct information I needed to pursue my objective.
The only decent assistance I received in the beginning and presently has come from the FHWA. The top officials of the right-of-way department in Boston, the Secretary of State's office and our local district attorney's office were also helpful. And to their credit, the local Senators and State Representatives withdrew any and all support simply by doing nothing at all. In the end, they even no longer supported this process.
Most of the documentation and information I dug up was not made readily available to me. I filed more Freedom of Information Act letters than I care to remember, most of which were completely ignored and only generated more business for the Secretary of State's Office.
Now, add to all of this the fact that a group of property owners, under the lead of three other very committed RICH members, and I filed a lawsuit against Massachusetts Electric Company (now National Grid) on June 15, 1998. By this time we really had no other options. One of our members had lost the sale of his house because half of it was on the right-of-way. My barn sat on a spur of the right-of-way and other buildings in town did not have clear title. Even though our homes were there long before the railroad came through and we had warranty deeds with no mention of any easements under our houses or outbuildings, the railroad valuation maps said differently, as did the electric company and the bike people. So the question became, who really owned the land taken as easements by the rights-of-way in the 1860s and abandoned in the 1960s?
Our case, Rowley v. Massachusetts Electric Company, eventually became the State Supreme Judicial Court number SJC-08746.
The case hinged on the Derelict Fee Statute as pertaining to railroad rights-of-way (MGL c. 183, section 58). Somehow it had never been addressed, so it was time.
If anything was funny throughout all of this heartache and misery, it was the simple fact that it took close to two years to find any attorneys to represent our case. Believe me, I searched high and low. After we gave up on finding any local attorneys to represent us, we contacted the New England Legal Foundation in Boston, which jumped at the case. But then they were told that they could not represent us because Massachusetts Electric Company donates heavily to the foundation. We were very disappointed and we kept on searching.
We had also consulted once with attorney Michael Pill. He informed us that he thought we were biting off more than any sane person could manage, and that the obstacles were enormous and litigation would be expensive. He was very diplomatic but he left the meeting shaking his head. He did, however, give us some valuable advice, which we took to heart and we did our homework. But we still did not have an attorney to represent us.
Leaving no stone unturned, I called the Ackerson Group, a law firm out of Washington D.C., which Dick Welsh of the National Association of Reversionary Property Owners (3) had mentioned to me at some point in our conversations. Mr. Welsh was instrumental in educating us regarding railroad valuation maps. We actually had an original valuation map in our possession, but had no idea what it was or how to read it. On this chance call to the Ackerson Group, and because there was no precedent set in Massachusetts regarding railroad rights-of-way, our case sounded interesting enough and I was put in contact with one of their attorneys, Jim Baarda.
The rest is history. Nels Ackerson's law firm took us on and held fast throughout the five years in dealing with Massachusetts Electric Company. The interesting part here is that we also needed an in-state lawyer, and because Michael Pill is a top authority on easements and right-of-way law we once again contacted him. He was impressed with the amount of work and documentation we had uncovered. He agreed to help us and stuck with us through the end of the settlement.
With all this legal expertise, we still managed to lose the summary judgement in May 2000, so now we needed an appeals lawyer. On Michael Pill's recommendation, we met with attorney Wendy Sibbison, who quickly agreed to take our case. She also did a lot of head shaking on hearing our story. She got to work and, in so doing, gathered a prominent attorney from Boston, Henry Thayer, who represented The Abstract Club and The Conveyancers Association. At this point, all the title insurance companies, title search experts, and surveyors also sided with us, as did almost everyone else except Massachusetts Electric Company and all the bike people.
In February 2002, attorney Sibbison appealed to the Supreme Judicial Court, which agreed to hear our case in November 2002. The Supreme Judicial Court ruled unanimously in our favor in March 2003. Simply stated, we won a major case. So, now, in the Commonwealth of Massachusetts, a railroad right-of-way is considered a road and a way, as well as "other similar linear monument" according to the Derelict Fee Statute under MGL.
I am not opposed to bike paths, but I am opposed to the present process used to obtain them. And, until someone can explain to me why their right to ride their bicycles over someone else's private property supersedes that person's right to own property, I will continue to speak out in support of property rights.
The process needs a complete overhaul to take everyone's needs into consideration, not just a special interest group happily spending other people's money. It is only too apparent that the present system can not be trusted. With all the laws, rules and regulations out there to protect people, why would any private citizen need to remain ever vigilant in order to protect her property from being confiscated?
After the Supreme Judicial Court ruling, attorney Sibbison sent me a short note, which included the phrase, "Thanks for the wild ride." I wish I could say the same.
CMAQ - Congestion Mitigation and Air Quality Improvement Program (under federal transportation funding, ISTEA and TEA-21)
EOT - Executive Office of Transportation (within Massachusetts Highway Department)
FHA - Federal Highway Administration
ISTEA - Intermodal Surface Transportation Efficiency Act (federal, 1991)
MGL - Massachusetts General Law
RICH - Railroad Impact Committee of the Hilltowns
SAFETEA-LU - Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (federal, 2005)
TIP - Transportation Improvement Program (federal Transportation Enhancement Program)
TEA-21 - Transportation Efficiency Act for the 21st Century (federal, 1998)