Bike path may turn on deed

State, opponents differ on impact

By Calvin Hennick
Globe Correspondent / June 7, 2009
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Neighbors who oppose a potential bike path in Newton Lower Falls say a land deed explicitly prohibits the state from constructing the trail.

The state Department of Conservation and Recreation, however, has a different interpretation of the document.

The neighbors are pointing to a 1982 deed agreement between the Penn Central Corp. - the former owner of the land - and the Metropolitan District Commission, a forebearer to the state recreation agency. The document states that the land shall not be used as "a transportation, communication, electrical or other corridor or right of way."

"That clause, in our opinion, would prevent them from building any kind of bike path or transportation corridor as they have planned," said Newton lawyer Peter Schilling, who is representing two neighbors in a lawsuit against the state.

"It seems to me that this is a slam dunk," said Kit Stover, one of a number of neighbors along the former railroad line who opposes its use as a bike path. She is not a party to the lawsuit.

But the state says the land was purchased for recreation purposes and that the deed language is simply a no-compete clause, inserted by the railroad company to ensure that the land wasn't used for another rail line.

Gary Davis Jr., general counsel for the Department of Conservation and Recreation, wrote in a letter Tuesday to bike-path opponent Joseph Levens that ". . . the restrictive covenanting was inserted into the document merely to avoid competition and not to ban a bike path."

The deed is mentioned in the lawsuit filed in July 2006 by the two neighbors represented by Schilling. The suit is awaiting a hearing in the state Appeals Court, and Schilling said no ruling has been made on the substance of the case. But Rick Sullivan, the DRC's commissioner, said the case has been dismissed by other courts.

"The case has been dismissed three times, and we are confident in the position we've taken, and we're confident that we have the ability to move forward here," Sullivan said.

The state plans to begin renovation work as soon as October on a trestle bridge that spans the Charles River between Newton and Wellesley. The $800,000 project includes just the bridge and its approaches, but officials have discussed eventually constructing a 1.1-mile bike path from the bridge to the Riverside MBTA stop. The path would cost at least $1.2 million, but it isn't yet on the DCR's capital plan, and officials say they would allow for public input before going forward with it.

Sullivan said it is important to move forward with the bridge, though, because it presents a public safety hazard and because money is available through the state bridge repair program.

"We understand that not everybody is supportive of the plan, but it does have broad-based community support," Sullivan added.

The project's supporters include state Representative Kay Khan, who lives in Newton beside the railbed.

But opponents say it would split in two a part of Newton that is already cut off from the rest of the city by Route 128, and would encourage people to put up fences where none exist.

They also say there are better options for a bike path in the area that the state hasn't considered, and that it's a waste of money.

Sullivan, though, said the cost is justified.

"When you're dealing with bridges, no matter what size, they're not inexpensive," Sullivan said. "We've got the money available to make the bridge safe and rehabilitate it, so that needs to go forward."