By Kim Siebert MacPhail
The difference between the memory of a decade-old agreement between three former landowners and a developer and what today can be legally supported was at the heart of an issue aired at the June 18 Planning Board meeting.
Attorney Robert Mangiaratti, who was asked to research the issue by the Town, addressed an audience of the Planning Board, former land owners and abutters, and neighborhood residents about the 20 foot, “L” shaped strip of land between #22 and #24 Liberty Road that traverses the distance between the west end of Charles Street and the east side of Liberty Road. Some say the strip was intended as a pedestrian trail and others maintain it is merely to be used as a utilities access.
After examining the Freedom Estates development documents filed with the state in which Liberty Road and the strip of land in question lie, Attorney Mangiaratti counseled—and the Planning Board ultimately concluded—that although the intention to have a walking trail as reported by the former land owners was likely, the final documents have stronger legal standing and they are marked “utility easement and access”— not “trail” like notations in other areas of the site plan filing.
The three former owners of the land now occupied by Freedom Estates—Herbert Pike, Gregory Sharpless and Randall Eisenhauer—clearly remember that their agreement with developer David Veo included a pedestrian trail easement that would connect Charles Street and Liberty Road. Property owners Lei Zhu of # 22 Liberty Road and Metin Elyazar of #24 Liberty Road—whose properties are on either side of the easement—say that no mention was ever made of a pedestrian trail, either verbally or in writing, nor does one appear on the legal documents.
The reason why the question of the pedestrian access arises now, years after the development appears finished, is because Freedom Estates has begun the process of having its streets accepted by the Town. Before that can occur, all pending work must be completed—such as conditions for the project’s approval that have not yet been satisfied. The status of the easement between #22 and #24 Liberty Road is, according to Director of Planning Glenn Garber, only one of a number of remaining items on developer Veo’s so-called “punchlist.” For example, as noted by residents of Freedom Estates, the number of absent, dead or dying trees in the subdivision is an issue still to be addressed.
After Attorney Mangiaratti walked the Board and attendees through facsimiles of the legal documents, he addressed the difficulties of proving that a pedestrian trail was intended. Once the specifics of the situation were clarified, Planning Board members reluctantly agreed that there was little to legally support the former landowner’s claim of an agreement about the pedestrian trail.
“From the very beginning, the intent of the developer and the Town and everybody was to connect these two projects together because three of the homes on Charles Street belong to Freedom Estates,” said former landowner Herb Pike. “Every single plan showed the trail. The fact that somebody didn’t properly document it—I don’t think that negates the intent of the Town, the developer and everybody else to connect these two projects, and that was part of the verbal agreement.”
Former land owner Greg Sharpless also recalled the original negotiations that took place when the land was sold for development. “I had various conversations with Dave Veo, and there were certain things that we wanted and [the walking trail] was one of the things we were guaranteed. At first they were going to take Charles Street and it was going to go right through to Liberty. [Ultimately,] all of us who live on Charles Street were told there was going to be a walking path so that we were able to get access from Charles Street down there to get to the other trails [on the property]. I was told— all my neighbors were told— that that was what was going to happen there.”
Mangiaratti replied, “I have no reason to doubt what you’re telling me. There is a least one version of the plan—the landscaping plan—that seems to show a walking trail. How we got to where we are, I cannot explain to you. When you’re dealing with real estate, the law says that which is in writing—and which is recorded—controls [the matter]. . . . Many of us have had transactions in real estate where people have said, ’I thought this, you thought that.’ Misunderstandings arise. [To guard against this] people came up with the idea that if you’re dealing with real estate it has to be in writing to avoid that sort of confusion.”
“I was not on the Board [at the time],” added Planning Board member Lisa Mustapich. “I don’t know what the intent was with the walking trail, but I do feel that—for whatever reason—this detail was missed in too many documents. . . . I don’t see how we can tell these homeowners at this point that the Town wants to pursue a walking trail that is not on so many documents—for all we know, it was intentionally omitted in [the] writing.”
However, in conclusion, Board member Amy Lloyd summarized the issue and appealed to the Liberty Road residents in a spirit of cooperation. “Clearly, the document process was deeply flawed. I have no doubt that the intent was to have access through. The documentation was botched. Based on what counsel is saying—and what we’ve seen [from his presentation]—it doesn’t seem like we have standing to go to court and win; and we have to think about the cost to all the citizens of Bedford.
“That all being said,” Lloyd continued, “Mr. Zhu and Mr. Elyazar, you have the opportunity to take the high road. I understand that it wasn’t spelled out absolutely for you. You saw the landscaping plan. You have Freedom Estates neighbors who live on Charles Street. There are residents of Charles Street who have been good citizens of Bedford for decades and decades. Every time someone in that little pocket neighborhood [of Charles Street] wants to go out for an evening stroll, they have to stroll on Charles Street only. Every time an eight-year-old wants to run over to a friend’s house, their mom has to put them in a car and drive them around, because South Road isn’t safe.
“I hope that you think about possibly allowing people to go through your property,” Lloyd added. “Nobody can force you, it seems. But you moved to Bedford because it’s a nice community—for the schools, no doubt. You moved to that specific neighborhood because it’s a family neighborhood—it’s a community. You’re not being neighborly to your neighbors, who are essentially trapped on Charles Street.”
Liberty Road’s Zhu responded, “We fully understand the situation and as citizens of Bedford, of course, we are nice to our neighbors. At least we’re going to try to be nice to our neighbors. It’s common sense.”