By Katie Curley
NEWBURYPORT — Alleging a breach of contract, fraud and money owed in back property taxes, the city is fighting a homeowner to get a crucial link in a proposed rail trail.
According to the complaint filed in Superior Court, Norbert A. Carey of 29 High St. as well as Russell S. Hussey Jr., trustee of the Mary R. Carey II Realty Trust, have breached an agreement made in 2003 to provide permanent easement on land that is needed for the city's rail trail. It's not the rail trail that is currently under construction — rather it's a secondary, yet-to-be-constructed trail that runs along an abandoned railway line in the city's South End.
According to the city, it will not be able to complete the rail trail without this land. Thus, the city is suing both men for the land, back property taxes and legal fees.
"In the mid-1990s, the city began working toward establishing a recreational trail through the city. The city secured two grants from the Massachusetts Highway Department for acquisition and design of the project," the complaint says. "The rail trail was proposed to utilize an abandoned railroad track bed running through the city, owned by Boston and Maine Corporation, which in turn has its real estate managed by Guilford Transportation Industries Inc."
One of the parcels, owned by Guilford at the time, abuts 29 High St. According to the complaint, once Carey heard the city was looking to buy the quarter-acre parcel from Guilford, Carey attempted to negotiate the purchase from Guilford to add to his land.
According to state law, the city has first refusal on all discontinued railroad property. Then-mayor Al Lavender struck a deal with Carey in the final weeks of his administration, allowing Carey to buy the $56,000 land with the caveat that the rail trail be allowed to pass over it.
Mayor John Moak said the city is acting responsibly by pursuing legal action.
"We were concerned that what was agreed upon under the Al Lavender administration was never finalized," Moak said. "We didn't think we could work on this anymore, and we were getting nervous the house would be sold without the easement coming to the city for the rail trail."
Moak said he turned the issue over to the city's lawyers at Kopelman and Paige Law Firm in Boston and told them to proceed with whatever legal measures they deemed appropriate.
"It would not be responsible on our part not to get this rectified," Moak said. "We contacted our lawyers to do whatever legal remedies they could to make sure we got the agreement that was written up during the Lavender administration finalized."
Geordie Vining, the city's project manager, called the piece of land in question "the missing link" in the coming phase of the rail trail.
"For the phase through the South End, we need a continuous corridor," Vining said. "It's critical to the establishment of the rail trail."
Vining said after numerous meetings with Carey over more than five years, the property is now on the market, and the city has been fielding calls from concerned residents who have been following the situation.
"We felt we had to move in order to ensure the easement will come to the city," Vining said. "It's hard to imagine that we won't get the easement. The intent is clear based on the executed document and letters. Carey is legally required to convey the easement."
Once the easement is passed back to the city, Vining said, planning, design, permitting and eventually construction will begin on the next phase of the trail.
"Whether this is hard or easy, the city will end up one day with the easement," he said. "Then we can get into fundraising, design, eventually construction. It will be a multiyear process."
With phase one of the rail trail near completion, Vining said they city is currently working on securing rights of way and permitting on the next phase.
Neither Carey nor Hussey could be reached for comment. Both Carey and Hussey's listed phone numbers have been disconnected.
The deal
The 2003 deal that Lavender signed was controversial. It occurred about two weeks before the election, and Lavender was accused of ethics violations for sending a letter to Guilford in support of Carey's bid. Lavender scoffed at the charges. Lavender lost the election to Mary Anne Clancy.
In a 2003 interview, Carey told The Daily News that, "I'm all for the bike path, and I want the bike path to go through ... As far as I'm concerned if there's a bike path that runs all the way through here, I'm in favor of it."
City officials point to the agreement signed by Carey as the hub of their case.
"On Oct. 27, 2003, the city and Carey entered into an 'Agreement to Provide Permanent Easement,'" the city's complaint says.
As part of the agreement, Carey could not charge the city any money for use of the property.
Since then, the city says Carey has refused to record the Release Deed and make good on his agreement with the city and formally transfer the property from Boston and Maine Corp. to Carey. Accordingly, Boston and Maine Corp. is the recorded owner of the property.
"Since property owned by the railroad is property tax exempt, Carey's failure to record evidence of his ownership of the property has defrauded the city of tax dollars since Oct. 24, 2003," the complaint says.
According to the complaint, Carey has listed his property for sale and is advertising the lot as totaling 20,000 square feet.
"It is clear, based on the increased land area, that the defendants have listed the 29 High St. property together with the property for sale with a real estate broker and is actively attempting to sell the property without granting the city a permanent easement as agreed," the complaint says.
The city is also asking the court to issue a preliminary injunction and alert the Registry of Deeds of the suit pending. The city has also asked the court to declare Carey in breach of agreement and order him to grant a permanent 15-foot-wide easement over the property to allow construction, maintenance and continued use of the public rail trail.
In addition, Carey would have to record the permanent easement along with the release deed and pay all taxes owed on the property since 2003. The city is also asking Carey pay for the city's legal fees.
