Kaitbenski, Not in MY Back (Front) Yard!
An emotional dispute over placing utility poles along the nicest and most pristine historic stretch of scenic country road still in existence today in our neighboring town Brimfield was brought to an - what could be short lived - end by the Board of Selectmen this past Monday evening.
To really grasp the magnitude of the situation, one has to visit the site that the Freeman’s made their lifes’ mission to preserve. As part of the 200 plus acre Freeman Farm, John and Jane farm a 52 acre piece of land that only changed hands four times since it was purchased as part of a 1,000 acre piece of land by John Elliot, Apostle to the Indians, from the Quabag and Nipmuck Indians in 1655.
I met John and his sister Jane unannounced at their farm on Little Alum Road in Brimfield last Tuesday.
A personal friend brought the issue of the dispute to my attention and I just had to meet the Freeman’s.
The Freeman’s have something many of us have lost, a connection to nature and a sense of what really matters.
John invited me into their home so I could sit on a table to look at the many documents that lately have complicated his life and are threatening to change the pristine historic site for ever.
The living room reflects the Freeman’s values, the air had the distinctive smell of warm air dropping down a chimney cooled by the gradually longer and colder nights of autumn. The room had an honesty causing flashbacks to my childhood when I spent time at the many farm houses of relatives. I had no way to appreciate many things back then as my innocence didn’t know anything different.
Pictured on the right:
The Freeman Farm stand opposite their historic farm house on Little Alum Road where the Freeman’s sell their organic produce, fruit and vegetables, pour maple syrup, and more.
The Freeman’s life is primarily hard work and John confided in me that they do not even own a computer. The — for so many families mandatory — large flat-screen TV was also absent. The living room is not a place of leisure, more a shelter, where the Freeman’s would regroup on rainy days to go out once the weather breaks to do more hard work farming their land.
I got to sit right next to the heart of the chimney where Indians working as farm hands used to spent nights wrapped in blankets by the cozy fire a long time ago.
John filled me in with all the details of the situation that causes him and his sister anguish.
Pictured on the left: Former Kaitbenski residence on Shaw Road.
It all began when Brian Kaitbenski, a neighbor of the Freeman’s and son of Stan Kaitbenski, sold his stately residence located on 10 Shaw Road in November of 2008 to David and Kristin Mayo for $662,500.00 ($200,000.00 more than the assessed value at the time.)
Rumor has it that he was getting too heavy to climb the stairs and for that reason built a new house on 201 Little Alum Road for him and his family. Brian Kaitbenski’s new house shown in the picture below allegedly incorporates even an elevator.
Brian Kaitbenski’s house is near its completion and still has no electric service as Little Alum Road was never developed and has neither utility poles nor power lines.
The nearest power lines end in the south at Shaw Road at his former residence, and in the North at the Freeman residence.
The scenic stretch of Little Alum Road involved measures about 3,500 feet or about half a mile from North to South. At the northerly end lies the historic Freeman farm house near Hall Road, and at the southerly end is Shaw Road, also known as 7th street.
The new Kaitbenski residence is located about two fifth of the distance (still without Electric Service) or 1,440’ south of the Freeman residence.
Kaitbenski, and National Grid who owns the existing power lines, favor extending the service from the north as shown in the picture above, and the Freeman’s have good reasons to oppose the service from the north and favor to extend the service from the south as shown in the picture below.
(Click on any picture to download a larger image! Every term printed in bold/italic is a link!)
There are four different aspects to the dispute; common sense, emotional, financial, and legal.
Common Sense:
The Freemans have no plans whatsoever to develop their land and to build homes along the 1,440’ frontage along Little Alum Rd. The Freemans own both sides of the road along said 1,440' of Little Alum road, including the road itself. (A fact two members of the Board of Selectmen and Rousseau, attorney representing the Kaitbenskis ignore as the reader will learn further down.)
The Kaitbenskis on the other hand are no farmers and will most likely sooner or later develop their land west of Little Alum Rd along the 1,200’ of the total 1,420’ stretch along Little Alum Rd. owned by the Kaitbenski's. The remaining frontage on west of Little Alum Rd belongs to the Mayo residence, the entire frontage on the east side is part of the 52 acre parcel of the Freeman’s.
According to Freeman’s attorney Gary Liquori, the intention to further divide Kaitbenski’s property into more building lots is mentioned in a deed.
The service would then have to be extended further south anyway and would meet eventually the south point on Shaw Rd where service is available at the present time.
The north route would necessitate the cutting of many grown sugar maple trees and trimming of many more, destroying the unique historic farm road that has not changed for the past 450 years.
Part of the Freeman’s modest income as farmers is the production of maple syrup. The unnecessary loss of so many trees would substantially decrease the amount of sap while the work load to manufacture the syrup would basically stay the same.
Emotional aspects:
The Freemans life is their farm and their work to preserve their farm and Little Alum road.
The Freemans see themselves as the custodians of their land. Their goal is not to get rich; money doesn’t have a high value for them. They see value in a pristine environment and sustainable organic farming that requires hard work. We all could learn form the Freemans.
John Freeman read two written statements into the record, the first statement during the first hearing and the second statement during the third hearing.
Jane Freeman read one statement during the first hearing.
Richard A. Johnson from Worcester gave his statement in support of the Freemans. Johnson is a retired Service Forester from The Department of Conservation and Recreation.
The Kaitbenskis on the other hand are entrepreneurs and own several businesses and seem to take the position, “not in my back yard!”
Donna Kaitbenski read a statement strategically placed towards the end of the third hearing. Click on statement or click here, to read Donna Kaitbenski’s statement, it is a “must read!” John Freeman pointed out to the selectboard that Brian Kaitbenski does not seem to like the view of utility poles himself as he chooses to burry the last 150’ from the road to his new residence and this according to National Grid. National Grid’s petition includes the request, “Also for permission to lay and maintain underground laterals [...] for the purpose of making connections with such poles and buildings [...]”
When asked by a member of the selectboard whether Freeman’s claim would be correct, Brian answered:
“Not that I know of, the first time I heard of (chuckle).” (First hearing of August 2, 2010.)
Pictured on the right:
Overhead power lines end at the left perimeter of Brian Kaitbenski’s former residence.
Pictured on the left:
Overhead power lines end at the right perimeter of Stan Kaitbenski’s residence and where the service is going underground.
Brian’s former house on 10 Shaw Road and other houses of the Kaitbenski’s have underground service as well; the former house of Brian, now the Mayo residence, the 4,200sf house Brian deeded over to his son Chase for $100 on 462 Leadmine Road in Sturbridge, and the house of Stan Kaitbenski are just three examples.
Pictured on the left:
Residence of Chase Kaitbenski, where Brian and Donna Kaitbenski spend sleepless nights, homeless, and worrying about their future. Donna Kaitbenski is even losing her hair over the power line debacle. Click here, to read Donna Kaitbenski’s statement.
Interestingly, the house Brian and his wife Donna are staying at in the basement is listed with an 988sf unfinished basement. Either, they are not really staying in that basement, or the basement was finished without a building permit as the Kaitbenskis do not pay property taxes for a finished basement..
Many abutters and other interested members of the community attended the three hearings and voiced their concern over the threatened sugar maple trees.
Marino stated during one of the hearings that he had never before received so many phone calls about an issue. He allegedly also received five letters from residents who complained about his conduct during the second hearing. Jane Freeman tried to get recognized by holding her hand up. Chairman Marino ignored her and she was not given an opportunity to speak. The Board eventually decided against the Freemans, and the hearing was closed. Jane Freeman was not given an opportunity to voice her opinion.
Pictured on the right:
One of the nine sugar maple trees that will have to be cut.
Financial situation:
During the first hearing, the cost to implement the north route was quoted to be $30,000.00; the south route $90,000.00.The numbers changed considerably and ended up being quoted by National Grid as $30,458.00 for the north route (1,448’, 11 poles), and $46,492.00 for the south route (2,122’, 14 poles).
According to attorney Rousseau, Kaitbenski will have to pay for extending the power lines.
What is the price of a full grown sugar maple tree? These trees produces syrup, provide shade and oxygen, get rid of unwanted carbon dioxide and thereby work against the greenhouse effect (global warming), and do so 24 hours a day. A single mature tree can absorb carbon dioxide at a rate of 48 lbs./year and release enough oxygen back into the atmosphere to support 2 human beings! It is reasonable to assume that customers will less likely buy from the Freemans if the setting loses its appealing character...
Legal situation:
Freeman’s deed to the 52 acre lot as well as earlier deeds consistently mention a right of way stated as follows:“containing fifty-two (52) acres, more or less. Excepting and reserving to the town of Brimfield all its right of way in and to the Little Alum Road located through the granted premises.”See deed book 6814, page 71.
According to Freeman’s attorney, no other easements are recorded at the registry of deeds.
Brimfield’s voters agreed to maintain Little Alum Road and paved it back in 1974.
The Road is still the property of the Freemans.
The road has never been surveyed.
The Board of selectmen has no jurisdiction over the issue whether to allow National Grid to erect utility poles on said property as the town does not own said road.
A previous owner of the Freeman Farm solely granted the town of Brimfield a “right of way” and no further rights or easements.
Kaitbenski’s attorney Rousseau ignoring the Freeman’s rights of ownership claimed that it would be an improvement and the Freemans would benefit from having the power lines installed along Little Alum Rd (north route).
Freeman answered “nine poles improve our property? Are you sure? It will not improve our property, it will destroy it.” Freeman added at the end, “shame on you [Rousseau],” and got scolded by chairman of the board Marino for his justified and appropriate response.
Rousseau added:
“I just want to say that National Grid and Verizon extended their hand so to speak out and are willing to place these poles as it is my understanding in a way that doesn’t affect those sugar maples that were the center of the last hearing. [deep breath] So that’s the intend, to minimize the impact on those trees in front of the Freeman property. There is an extensive canopy on that road and it is an enjoyable road to jog on. I don’t think the poles will affect that in any way.”
Pictured on the left: Low arching branches of Freeman's sugar maple trees reach over Little Alum Road. Where would attorney Rousseau position the wires without cutting all the low arching branches??
I see it all the times, lawyer’s can make the most outrageous and capricious insulting comments and don’t get scolded..
Towards the end of the second hearing that took place August 16, 2010, John Freeman unequivocally informed the Board of Selectmen again of the fact that Little Alum Road is not a public way owned by the town and that it is his property. Little Alum Rd is a private road the town chooses to maintain.
Selectmen Stephen R. Fleshmen then stated:
“Is it a town road or is it a right of way?[...] I’m sitting up here and acting on it as a public town owned road with rights of ways for the town.”
The second hearing was continued to September 13, 2010 (the third and final hearing).
Throughout the third hearing, Brian Kaitbenski's attorney Rousseau referred to Little Alum Rd consistently as a “public way” and not a “private way maintained by the town.”
The Freemans again repeated their claim to own Little Alum Road.
Selectman Fleshman then made the following statement to “clear” the legal status of Little Alum Rd:
“We have done some research [...] at this point, to the best of the town’s knowledge, that is a public road, It is not a right of way based on the acceptance by town meeting so therefore that public road we mentioned is not in particular ownership of the Freeman Farm. You [the Freemans] own up to the boundaries defined at the town meeting. That’s what we found.”
John Freeman’s attorney, Gary Liquori, responded:
“It can’t be a public road.”
If Board member Fleshman’s statement would be correct, a town could take private property at will without consent of the owner and without compensation. All that would be required would be a vote by the majority of voters. That of course is a misguided believe!
The so called “Eminent Domain” procedure (the right of governmental entities to take private property for public use) would be superfluous. The Fifth Amendment to the United States Constitution requires that just compensation be made to the owner.
David K Mayo took the microphone several times and voiced his concern and opposition against the Shaw Rd proposal. Three poles would be erected “just inches away from my custom stone walls,” Mayo said.
He also rather has the unaesthetic poles on Freeman’s property as “the Kaitbenski residence is on Little Alum Rd and should get the power form there.”
Rousseau took the microphone several times towards the end of the third hearing and repeated his misconceived argument Little Alum Rd would be a public road culminating in the following statement:
“I understand the Freemans are opposed and I get that and we heard some strong emotions from them but I think if you look at the facts and what kind of precedent we are setting here we have to consider, are we going to force a landowner to go to a more expensive route because we don’t wanne see poles and wires in front of our houses?”
Whether Brian Kaitbenski’s attorney Rousseau subscribes to be ignorant about the law or outright dishonest, the fact remains that neither the town nor National Grid nor the Kaitbenskis had anything to rebut the Freeman’s claim of ownership to Little Alum road.
The principal reason for establishing a land title registration system pursuant to G.L. Chapter 185 is to provide individuals with a means of ensuring that titles to land are indefeasible and certain.
Furthermore, with respect to easements, the general rule is that “[i]n order to affect registered land as the servient estate, an easement must appear on the certificate of title.” Tetrault v. Bruscoe, 398 Mass. 454, 461, 497 N.E.2d 275 (1986). See Jackson v. Knott, 418 Mass. 704, 710, 640 N.E.2d 109 (1994).
A municipality can not attach an encumbrance to private property that is not explicitly part of the record at the Registry of deeds. The legislature made that explicitly clear; chapter 185, Section 53. provides in part:
No title to registered land, or easement or other right therein, in derogation of the title of the registered owner, shall be acquired by prescription or adverse possession. Nor shall a right of way by necessity be implied under a conveyance of registered land.Jane Freeman kept a meticulous log of all calls and other events in connection with the proposed installation of utility poles and wires.
According to this log, National Grid asked the Freemans twice for an easement; the first time for 10 poles and 10 guy wires on May 25, 2010, and a second time on May 26, 2010, for 5 poles and 5 guy wires. Both requests were vehemently denied by the Freemans.
This and other indications rule out a misunderstanding or lack of knowledge by the parties opposing the Freemans. The Freemans have control and ownership over said 1520' stretch of Little Alum Road.
The selectboard had therefore no jurisdiction over the property and lacks the authority to allow National Grid to erect utility poles on any of the Freeman property, including their 1520' stretch of Little Alum Road.
They did it anyway simply because they can, forcing the Freemans to fight for their right by taking legal action. The Freeman’;s could give the public notice if their intentions to refuse their consent for the unlawful easements by giving notice to the town as provide for in G.L. section 3 of chapter 187.
Pictured on the right:
John and Jane Freeman in front of their own saw mill.
The third hearing on September 13, 2010 concluded when Diane M. Panaccione, member of the Board of Selectmen, did the prudent (and lawful) thing by moving to approve the south route or Shaw Road proposal opposed by the Kaitbenskis and National Grid, respecting the Freeman’s property rights.
However. Marino and Fleshman voted against Panacione.
Fleshman immediately moved to approve the North route favored by the Kaitbenskis and National Grid. Panaccione voted against the proposal and Marino and Fleshman voted in favor of the proposal.
At the end it was clear that two members of the Board, Fleshman and Marino, ignored the rights of the Freemans and voted in favor of the Kaitbenskis and National Grid.
Just hours before the third meeting, John and Jane Freeman witnessed Brian Kaitbenski leaving selectman Marino’s driveway on 454 Main Street in Sturbridge. The Freemans were on their way to Staples to fax documents to their attorney in connection with the upcoming hearing that evening.
Brian Kaitbenski’s attorney Rousseau and selectman Marino, also an attorney, have a business relationship that Marino disclosed at the beginning of the third meeting.
Freeman’s attorney pointed out that Brian Kaitbenski’s father Stan is a neighbor of selectman Fleshman.
It is disturbing that, Rousseau and Marino, both lawyers, went along with the scheme that the Freeman’s 1520' stretch of Little Alum Rd. would be a town owned public way.
The Freemans have not decided yet whether they will sue to protect their rights.
It will be interesting to see how this situation will unfold.
September 16, 2010, Peter Frei