Frankly, I think some of the other selectmen and I are talking about different issues or someone has given me a different set of facts. Really. Most nights I return home shaking my head. I must be talking in a foreign language because they look at me as if what I'm saying is incomprehensible. If I weren't so confident in my intellect this might be daunting.
For example, having previously received an opinion from town counsel that the town has no legal responsibility for stormwater flooding on private property*, last night I was trying to resolve the issue of just what the town is obligated to do under the Bigelow Easement to preserve the privately owned Treat's Pond in it's "natural state" which includes keeping its natural outfall open to Sandy Cove. (See Tinytown Unleashed for details of the discussion http://www.tinytowngazette.com/blog/)
Town Counsel opined that the BE allows the town to do certain things but doesn't obligate us. The property owners don't want us there. We don't have the obligation to be there. Why do we keep spending our limited resources (translated as our tax dollars) where we're not appreciated?
I think we should go to land court and find out what our legal rights are under the BE. If it turns out that we don't have any then I think the town should be relieved of it's obligation. It's not like it can be developed or filled in if the town isn't in charge. It's protected by the Wetlands Protection Act and local wetlands bylaws. We wouldn't be abandoning the environment; the Conservation Commission would exercise jurisdiction over it.
If we do have rights let's exercise them. One way or the other, let's do something other than continue to spend good money after bad.
My opinion is we should seek relief from the easement. It's a poorly written document that burdens the town without any benefit. What were the selectmen thinking when they accepted such a one-sided contract? It probably was clearer then as there was one property owner. No one foresaw the sale of the land and how the vested interests of new and multiple property owners would muddle the waters (sorry, pun not intended).
I'd like to resolve the issue even if it means making a hard decision. Others on the BoS don't seem to. I guess that's the difference between us. I'm from Venus; they're from Mars.
*Unless the town has a direct causal participation in creating it.
1 comment:
This a legal question. You are correct, the original easement and understanding was between the town and a single property owner. When the property ownership changed to multiple owners the easement should have reviewed or clarified.
With multiple property owners each has a vested interest in an outcome that fixes their problem impacting their property with some regard to others. If they are being flooded, they want flooding stopped but if they also have access to Sandy Cove, they want a solution that does not impart change to Sandy Cove. If they care about salt water marsh vs. fresh, then the solution offered is shaped by that preferred outcome. You add additional complexity when you discuss solutions that impact other areas such as Cohasset Harbor. Now others with property or vested interest have input.
We saw a similar issue on Little Harbor with the Cat Dam; opening and closing based on property owners desire vs. what is best for the harbor based on scientific study. Every time there was a change in property ownership, you had a possible change in the opening and closing schedule based on new owner input.
The Town needs a very clear LEGAL understanding. What does the easement allow, demand or require? What does the easement NOT allow, demand or require? If the only way to obtain clarity is Land Court, then that is what needs to be done.
Years have passed as the various Selectmen have tried to broker a deal that satisfies all landowners and it seems we still do not have agreement. As we are unable to agree, we need a higher authority to provide answers.
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