By Erin Tiernan — [email protected]
Private property owners are launching another appeal to a court decision affirming the public’s right to access Estabrook Trail. But an attorney representing some of the landowners said the fight would be an “uphill battle.”
“We felt the Appeals Court missed a lot of important points and reached a decision that was wrong and flawed,” said lawyer Diane Tillotson.
Tillotson applied for further appellate review on November 12 on behalf of a group of property owners battling the town over whether the public is entitled to use a discontinued portion of Estabrook Road.
The disputed trail, an unpaved, 1.8-mile stretch that once connected Concord Center to Carlisle as part of Estabrook Road, was discontinued in 1932 by a now-defunct county government body. Discontinuance documents even refer to it as becoming a “private way.”
What are the odds?
The Supreme Judicial Court has the discretion to decide whether the appeal moves forward. Tillotson admits the chances are slim.
The court accepts fewer than 3 percent of applications for further appellate review, recent data shows. The state’s high court heard just 12 of the 393 applications last year. In 2022, the court received 514 applications, also hearing only a dozen.
Still, Tillotson believes her clients have a shot. In her 81-page request, she argues the court should consider the appeal “to correct two substantial errors of law in the Appeals Court decision that, if left to stand, will upend the law to the detriment of the public interest.”
She told The Concord Bridge the lower-court rulings “open a hornets’ nest of issues not resolved by the courts.”
Tillotson’s argument — in part — hinges on the “broad impact” of the Estabrook ruling, which she said now calls into question access rights on at least 100 other roads discontinued via identical mechanisms. That list includes four other roads in Concord.
It’s the same argument the courts have already shot down twice.
The state Land Court ruled that Estabrook Trail has a tradition of public use that was not erased by the discontinuance. The ruling was then upheld by the Massachusetts Appeals Court this past October.
Seven-year battle
Brooks Read, one of the Estabrook landowners behind the new appeal, said the courts erred in their earlier rulings.
“In both court decisions against us so far, the courts have explicitly disregarded facts supporting the defendants and embraced speculation by the town’s expert,” he said.
Not all of the landowners originally sued by the town in the case over public access to Estabrook Road are continuing the court battle, now in its seventh year.
Three private property owners, including Harvard College, did not appear as defendants on the application for further appellate review.
The Town of Concord first sued landowners in 2017 to enshrine the public’s right to traverse Estabrook Trail amid escalating tensions with landowners, who had erected signs and a new gate amid threats to shut off access to the land.
Town Manager Kerry Lafleur said the town is “aware” of the application for further appellate and planned to respond before a November 26 deadline. A court spokesperson said justices typically decide on applications within a few months.
