Rail trail supporters argue park should be protected from easement

A local company that received an easement from the city to build a private road across the more than $6 million state funded Quequechan River Rail Trail, “would not even get to first base” because the linear park should be protected by an article in the state constitution, according to the Boston-based environmental law firm McGregor and Legere.

FALL RIVER —A local company that received an easement from the city to build a private road across the more than $6 million state funded Quequechan River Rail Trail, “would not even get to first base” because the linear park should be protected by an article in the state constitution, according to the Boston-based environmental law firm McGregor and Legere.

And now the Alliance to Save the Trail is taking their case to the state Attorney General’s office.

The alliance, a group dedicated to stopping the two-lane road sought by Carrigg family owned neighboring Clover Leaf Mills  that would cross over the trail and parallel the 10-foot wide rail trail to Brayton Avenue, have hired the environmental law firm.

Lawyers for the law firm advised in a letter to the alliance that in their opinion the easement needs to be reviewed and approved according to terms of Article 97 which protects public lands.

Hours of research and Article 97

Alliance founders Brian Pearson and James Cusick did yeoman’s work researching documents through open records requests on the history of the development of the rail trail dating back to 2013.

They say the documents, including contracts, correspondence and emails, show that land for the rail trail was meant to be purchased by the state’s Executive Office of Energy and Environmental Affairs that would put the land under the protection of the Commonwealth’s Article 97.

Adopted by voters in 1972, the Article 97 requires a special procedure if any proposed changes in use of parklands includes a two-thirds roll call vote of both the state House and Senate.

City funds authorized

But something happened along the way and city funds were used for one of the taken parcels during former Mayor Will Flanagan administration to purchase the swath of land that is now an easement approved earlier last year and at risk to be developed into the private road from Carrigg’s mill complex.

Pearson and Cusick said they are still waiting to hear from the AG, but said that there appeared to be a lot of interest.

“We just kept bringing out facts,” said Pearson, speaking about the 1 ½ hour meeting with the AG’s office with their attorneys. “The AG had an attorney and a staff worker. EEA was there and they had an attorney and they had Kurt Gaertner there, he’s the guy that ran the whole project for the city for EEA.”

Pulling an inch wide report Pearson and Cusick wrote, they outlined some of the facts they presented that include the contract signed between EEA and the city that the state agency would provide up to $500,000 to take and purchase private land for the rail trail in May 2013.

Another contract signed by Flanagan and EEA in March 2014 regarding the more than $6 million grant funded through EEA for the construction of the rail trail stipulates that the linear park “be open to the public and permanently conserved consistent with Article 97 of the Massachusetts Constitution.

An additional contract again outlines that the rail trail is protected under Article 97.

Pearson and Cusick also found records show as far back as 2013, that Robert Carrigg was denied road access to the rail trail land, including correspondence from Gaertner. An engineer from the firm hired by the state called the proposal not feasible and the city also weighed in that access for a public road was not allowed.

Meanwhile, a number of emails indicate that Sen. Michael Rodrigues made several attempts to intervene on behalf of Carrigg with the state agencies involved in the project and the city.

In June 2014, the City Council approved an order for the taking by eminent domain five properties funded through the EEA and the Department of Transportation.

Then things take a turn, said Pearson and Cusick, when Attorney Matthew Thomas, hired by the city to handle the takings, directed then Treasurer John Nunes in July 2014 to cut three checks to purchase three properties, one being Carrigg’s land and two listed as “owners unknown.”

Two checks would be drawn from EEA funds including $52,000 to Carrigg and a third drawn from the Park Department to an escrow account for “owners unknown" Pearson said Thomas indicates in his letter the Park Department money is coming from grant funding it set aside.” (The city is currently in litigation with the owners of the property that had paid taxes on the land for 18 years.)

Checks are cut

“A funny thing happens, that same day, on July 21, engineering reimbursed the Park Department $20,000 and now they’re saying the money really came out of engineering. Makes sense, if this is Park Department money you still have to protect that land,” said Pearson.

“Have you ever heard of the city being offered money and the response is that they don’t want it, here’s $20,000 of our own money,” Pearson said. “It would never happen.”

Cusick said that Thomas also claimed that the city was required to match the rail trail funding, but it wasn’t true, and none of the agreements indicate that was a term.

Pearson said it’s still a mystery of who gave the order back in 2014 to transfer the $20,000 from engineering to the Park Department since there is no documentation in Government Center.

It was a move that essentially unprotected the rail trail under Article 97.

An email between Thomas and Kurt Gaertner, who oversaw the rail trail project for the state, and provided to Pearson and Cusick, indicate that somewhere along the way EEA and the city changed the terms of the earlier agreements under Article 97.

In the email dated December 2014, Gaertner wrote, “we quite intentionally worked to make sure that Article 97 did not apply.”

The Herald News asked the EEA at what point did the terms of the initial contract change. EEA Press Secretary Katie Gronendyke responded by email:

"The contract between the Executive Office of Energy and Environmental Affairs and City of Fall River has not been amended to remove the requirement that property purchased with EEA funds be permanently protected under Article 97.

If the City of Fall River did not use funds from the Office of Energy and Environmental Affairs to acquire a portion of the Right of Way, Article 97 does not apply to that portion."

Fast forward

“If you don’t want the path to be crossed by the road, then we’ll not do it.”

It became a famous promise from Mayor Jasiel Correia II to a large group of angry rail trail proponents in September 2017 when it came to light that surveyors from Sitec Engineering & Land Surveying hired by the Carrigg’s were observed working in the area where the private road might be constructed.

It was also when the public and City Council realized an easement they had approved and was subsequently signed by Correia was located across the rail trail.

Correia vetoed a City Council approved order that would have instructed the administration to petition the court to reverse the controversial easement in November.

Pearson and Cusick said the reason they are doubling down their efforts to bring to light the rail trail’s history and the initial intent to protect it is because surveyors were again observed at the site about three weeks ago.

Last week the City Council introduced two resolutions relating to the Alfred J. Lima Quequechan River Rail Trail. One requesting all stakeholders involved in the issue meet with the Committee on Finance and requesting, for a second time, for the administration take action to rescind the easement granted to the Cloverleaf Mills owners.

Email Jo C. Goode at jgoode@heraldnews.com