Owner

Katie Curley-Katzman

Nov. 6, 2009 (McClatchy-Tribune Regional News delivered by Newstex) -- NEWBURYPORT -- The man who city officials accuse of holding up a vital piece of a rail trail says he has tried to work out a deal, but city officials have been pressing him to sign a fraudulent deed in order to expedite the project.

City officials deny that. Now that the property is up for sale, the city says it is suing Norbert Carey of 29 High St. in order to make sure it gets its promised rail trail easement.

Carey said the holdup stems from National Grid not providing him with details of where buried electrical lines lie on his property. Shortly after he purchased the land from Guilford Transportation Industries Inc. in 2003, then Massachusetts Electric (now National Grid) laid major power lines under the old rail line as part of a plan to solve brown-outs that had been plaguing parts of the city.

The particular rail trail in question is not the nearly complete, paved trail that runs parallel to Route 1. It's the second stage of the city's rail trail plan, which follows a long-abandoned spur line that runs near the Newbury town line, through the city's South End, past Joppa Park and along the eastern end of the city's downtown waterfront.

Last month, the city filed a complaint in Superior Court against Carey alleging a breach of contract, fraud and money owed in back property taxes. The battle is over a small piece of abandoned railroad land next to Carey's home that he bought for $56,000. In 2003, Carey made a deal with the city to let the city build a rail trail over the land. However, he has yet to sign over the easement.

"I never said I would not give the easement to the city," Carey said. "I will not file the easement without the proper electrical easement in place, or it will be a fraudulent deed."

Carey said he's tried to get National Grid to file paperwork describing where the electrical easement is, but it hasn't. He also said city officials agreed this summer to help him get the electrical easement, but they have not helped.

City officials say they know about the electrical easement, but argue it was Carey's responsibility to remove an "indenture" on the land. The "indenture" -- a legal impediment that dates back 80 or so years -- allows utility companies the right to use old rail lines.

"Norbert bought the property without extinguishing the indenture, so he has a cloud on his title," said Geordie Vining, project manager for the city's planning office. "He bought the property from Guilford without the indenture work being completed with the utility company."

"Over the years, we said to Norbert that we would like to see that indenture extinguished and we will advocate for you as you talk to National Grid, and we have done that on a number of occasions," Vining said. "He has decided that we have this legal and moral obligation to solve his problems with National Grid for him before he acts on his promise in the written legal agreement."

National Grid spokesman David Graves said the company has tried to work with Carey but has been unsuccessful and hasn't heard from him in years.

"We have tried to negotiate an easement with Carey so there would be no construction on this parcel, and we would have access to the parcel to do maintenance on our underground facilities," Graves said. "Carey originally wanted to put a garage up over our lines to prevent the trail from going through his property. There seems to be a confluence of interests between us, the city and Carey, as we are all asking access to this parcel."

"We asked that the easement would preclude him from building and allow us permanent access to underground facilities," Graves said.

Tax dispute

Another aspect of the case involves real estate taxes. City officials point to the 2003 agreement signed by Carey as the hub of their case.

"Since property owned by the railroad is 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, which includes the disputed railroad property.

But Carey maintains he has never received a tax bill from the city and says he even brought his deed to the city's assessor's office and asked to be billed.

"I copied my deed and brought it as proof of ownership so I could be taxed accordingly," Carey said. "I never received a bill, but now they say I owe property taxes."

City Assessor Daniel Raycroft said he has been instructed by the city's lawyer not to comment on the case.

Carey also disputes the city's naming of Russell S. Hussey Jr., as a co-defendant. Carey says Hussey has no connection to the ownership of the railroad parcel.

Carey emphatically says the city is forcing him to file a fraudulent deed, and he will not do that.

"The city said to me to just file the deed, and we will work on the electrical easement after," Carey said. "That's not the way I do business. If I file it and sell the house with a flaw in the title, and then the new owner goes to build something on it and sells the land, it's all going to come back to me with the faulty deed."

According to the city, Carey and his attorney need to work with National Grid to go through a similar process the city had started: legally extinguishing the indenture and replacing it with an easement for utility equipment. But National Grid says they haven't heard from Carey in years, and they currently have ownership and legal rights to the parcel.

"I certainly empathize with Norbert, as it can take a long time to get the attention of National Grid," Vining said. "I certainly understand the wheels turn slowly, but he seems to be waiting for the city to solve his problems. We can advocate on his behalf, but it's really inappropriate if he thinks he can sit back and the city will just take care of this for him."

Newstex ID: KRTB-0381-39518892