By Dakota Antelman – [email protected]
The yearslong legal battle over access to Estabrook Trail is headed to the state’s highest court.
The lawsuit dates to 2017 and pits the Town of Concord against landowners around the 1.8-mile path. The Supreme Judicial Court accepted the case in mid-January and scheduled arguments for April. As arguments approach, both sides are gearing up for the latest chapter in a pricey saga — costing the town nearly $2 million to date — and some residents are reflecting on how the dispute got to this point.
Long legal battle
Estabrook Trail is the unpaved northern section of Estabrook Road between Concord Center and Carlisle.
The town sued the landowners to affirm public access and won its initial case in state land court. The landowners took their case to the Appeals Court, which again ruled in Concord’s favor.
Among their claims, the landowners say the disputed path was never a public way. Even if it was, they say the status ended when the defunct Middlesex County Commission approved discontinuing its maintenance in 1932. The town says the trail is public.
In a joint statement, the landowners said they’re happy the SJC took their case and thanked outside groups that supported their request.
Town Manager Kerry Lafleur said officials “remain confident in the merits of our position and look forward to the court’s ultimate decision.”
Locals’ reactions
Before the town sued the landowners, and before the landowners installed a combination of signs, security cameras, and tarps along part of Estabrook Road, Debra Rutter said she rode horses in the area.
She said she understands landowners’ concerns about off-leash dog walking and excess traffic. But she said she supports continued public access.
“I think we need more places for people to walk and for people to walk their dogs,” she said while walking her two dogs in Concord Center. “It’s as simple as that.” Longtime Concord resident Michael Dettelbach said he frequented the Estabrook area even before he moved to town. Though he said he “deplore[s] the amount of money” going into litigation, he said he thinks the landowners forced the town’s hand.
“Everybody loves that piece of land and we all want to see it carefully stewarded,” he said. “Excluding the public from it is not the solution.”
Dettelbach said he hopes the SJC upholds the Appeals Court’s decision.
As for concerns about a new precedent, Dettelbach echoed some of the town’s arguments, saying “This is a pretty unique case.”
Latest appeal
The defendants appealed to the SJC in mid-November. Because the SJC accepts only a fraction of the cases it considers, landowner Brooks Read said he thinks this matter’s broader implications helped gain the court’s attention.
In their statement, Read and his neighbors said thousands of landowners could be impacted “if these long-believed-to-be fully private and discontinued ways … [were] suddenly subject to the unlimited right of travel by the general public.”
The Town of North Andover, the Franklin Regional Council of Governments, Plymouth County, and two real estate legal organizations all bolstered elements of the landowners’ arguments in letters asking the SJC to take the case.
A lawyer for North Andover said the town “respectfully disagrees” with Concord’s argument that the case won’t have far-reaching impacts and flagged as an example a case where a private home now stands on a discontinued road.
“That lot and the home on it, is now subject to a public right of access over what is otherwise private residential property,” attorney Christine O’Connor wrote.
An attorney for the Real Estate Bar Association for Massachusetts and the Abstract Club said they’re worried lower court rulings “altered existing law on how public ways may be created.”
“[A]s a consequence, future courts may find that public ways exist where, under established existing law, none would have been found to have existed, thereby disrupting private property rights and real estate titles,” attorney Nicholas Shapiro wrote. The landowners said they’re “heartened” that the SJC heeded outside requests. In an interview with The Concord Bridge, Read said he thinks concerns from the real estate groups and other towns “will absolutely dominate what occurs” next month.
Lafleur responded to the SJC’s acceptance in a statement, saying officials respect the Estabrook abutters’ right to appeal but are disappointed that this case “continues to be drawn out.”
In her email, Lafleur said officials are “respectfully of the opinion that additional briefing at this stage is unnecessary and only contributes to increased costs for all parties involved.”
In a follow-up message, Lafleur said officials expect to spend an additional $25,000 on the town’s side of the case at the SJC.
