BOS to discuss enforcing railroad’s property rights over part of downtown Cafe’s lot – Tuesday

by beth on February 26, 2021

Post image for BOS to discuss enforcing railroad’s property rights over part of downtown Cafe’s lot – Tuesday

Above: Mauro’s Village Cafe parking lot purportedly infringes on CSX Transportation’s property. To get easements allowing fixes to downtown infrastructure, selectmen may enforce the railroad’s property rights with barriers and curbs. (photo by Beth Melo)

Selectmen have been placed in the middle of a property dispute between a downtown business and the railroad that crosses Main Street. This Tuesday, they will continue a discussion on potentially enforcing the railway’s rights.

CSX Transportation is asserting that it owns property that three abutters have been infringing upon for parking areas. The railroad company claims to own all property 33 feet from the center of the train tracks. CSX offered abutters the option to lease infringed upon property – but only as close as 25 feet from the center of the tracks.

According to CSX, the owner of Mauro’s Village Cafe has “been unresponsive” to their communications.

At the Board of Selectmen’s February 16th meeting, members made clear they hoped that the restaurant could come to a satisfactory agreement with CSX Transportation. If not, they indicated that they would likely agree to a CSX demand in exchange for easements the Town needs.

That demand is to install a barricade defining the edge of CSX’s property in the midst of the parking area next to the Cafe. Curb cuts would also be based on CSX’s property lines.

The property dispute has been a potential roadblock to planned infrastructure work in the area. Selectmen positioned their response as weighing the needs of one Southborough property owner versus the needs of all the other businesses and residents in the downtown area. 

The Board agreed to discuss their next steps in their March 2nd meeting. In between, Chair Marty Healey said that he would try reaching out to the abutting property’s owner.

Background

Selectmen became embroiled when the Town sought easements from CSX for roadwork. CSX informed Public Works that enforcing its property rights with the four downtown abutters would be a required condition.

Selectmen were apprised of the issues this summer. In August, they agreed to send a letter to the property owners. Since then DPW Superintendent Karen Galligan provided updates on her back and forth with CSX. On January 5th, with issues still unresolved, BOS Chair Marty Healey said he would reach out to CSX to speak with representatives directly. At their last meeting, Healey updated the board on what he learned.

According to Healey, the issue has been resolved for three of the four abutters surrounding the intersection. (Scroll down for those details.)

Dispute between CSX and Mauro’s Village Cafe

Healey told the board that according to CSX the abutter to the southwest of the tracks was “unresponsive”. The property described was 2 Main Street, the site of Mauro’s Village Cafe.

Purportedly, the Cafe owners rejected the opportunity to negotiate a lease. Healey referenced that “the notion” of the Cafe’s “adverse possession” of the land had been floated to CSX. (The concept is that by using property for some amount of time, the user could acquire common law rights of ownership.)

The Chair updated the board that he learned the concept can not be applied to railroad property rights. Mass Gen Law specifies:

No length of possession or occupancy of land, which belongs to a railroad corporation, by an owner or occupier of adjoining land shall create in him or in a person claiming under him a right to such land of the corporation.

Selectman Brian Shea noted part of the issue appeared to be that even under an agreement the railroad would be cutting into the restaurant’s parking area. The Board didn’t know how much parking would be lost under the agreement.

Healey noted that without an agreement the railroad was asserting its right to its full boundaries. He opined that if the owner came to the table to negotiate, maybe they could convince CSX to increase the area of allowed use.

Selectman Lisa Braccio wondered how many spaces the restaurant was legally required to have. She noted that the agreement might be moot if the boundary eliminated too much parking for the restaurant to stay open. 

Mauro cafe parking lot approx markings 25 and 33 ft (image by Beth Melo)[Editor’s Note: I tried to determine how disruptive the disputed boundary would be. The image right is my photo – but was just an estimate. (Obviously not using any surveying equipment!)

It’s also important to qualify that the angle of the photo makes the 25 ft marker appear closer to the concrete marker for the parking space than I perceived it to be. I still included it since it clearly shows the big impact a 33 ft cutoff would make.]

Resolution with other CSX abutters

According to Healey’s February 16th update, the Knights of Columbus came to a lease agreement with CSX. He described that for “hundreds” of dollars per year KoC will be able to continue to use property for parking. A fence will mark the boundary 25 feet from the center of the tracks.

The same deal was offered to the Cafe and to Lamy’s, owner of the property southeast of the intersection with the tracks. Lamy’s purportedly declined the offer, assuring that the infringed upon area wouldn’t be needed.

Healey pointed out to the CSX rep that the lot to the northeast was vacant. Noting that no project could be developed on CSX property, he urged that no action was required regarding that parcel. CSX purportedly agreed.

The Town’s Involvement & Next Steps

The Town’s entanglement stems from infrastructure improvements need downtown. The Main Street Reconstruction Project under Mass Dept of Transportation ends at Park Street. East of that, Main Street reconstruction will be conducted by the Town. At the same time, Public Works will seek to fix serious stormwater drainage issues that have plagued the downtown area.

With the railroad crossing Main Street in the middle of the project, easements will be needed from CSX. On February 16th, Healey informed the board that he was given two options. CSX could assert its property rights without Board of Selectmen involvement, but no easements would be granted to the Town. Or the Town could get easements with the condition that the project would include installing the curbing to protect CSX’s property rights.

The Chair said that at the time he spoke with CSX’s real estate rep, the company had written off working with the restaurant. Apparently, prior references to CSX contacting the police about enforcing rights referred to the “railroad police”. A work order had been placed to install spikes connected by chains to mark the border of its property.

Healey said he convinced them to put that order on hold. 

Rather than making a decision, the board opted to push the matter to their March 2nd meeting. Determining no other board member had a relationship with the owners, Healey said he would contact them prior to the next meeting. He stated that if the owner was willing to negotiate a lease, he’d be willing to use the power of the Town to try to pressure CSX to negotiate a better outcome. But, he didn’t want to do that without knowing the abutter would be on board.

On February 22nd, Healey issued a letter to owner Shawn Mauro. It included the following:

Based on a review of existing court, assessor, and registry of deed records, the Board of Selectmen informally has determined that it is necessary to enter into an easement agreement with CSXT in order to make the infrastructure improvements. It is likely the Board will consider and potentially formalize this determination at its meeting on March 2. The work done pursuant to these easements likely will include curbing along the right‐of‐way that is requested by CSXT and identified by their architects, engineers, planners, the Bergmann firm, through red‐line edits on a VHB plan dated 4/15/20 and attached to Bergmann’s 7/20/20 letter and further revised in Bergmann’s 11/20/20 correspondence. See attached.

Note that CSXT has indicated that an additional right‐of‐way barricade/barrier along your eastern property line may be installed. We understand that you dispute that property line, but we are not aware of any records or documentation that support your position. If you are aware of or believe any such records exist if would be helpful if you would provide them to our office.

Based on our current understanding of existing property rights, the Town remains willing to assist you in any way in discussions with CSXT to maximize your use of CSXT property beyond the eastern property line of your property and have informed CSXT of that.

The communications and the plans were included in the packet for Tuesday’s meeting. You can view them here. You can also get a (cropped) look at the work plans below:

Project overview downtown Project close up downtown

The Board’s meeting is scheduled for 6:30 pm. (You can view the agenda and materials here.) The item is at the end of a long agenda. But, with no hearing times scheduled, the topic could be moved out of order to any time within the meeting.

{ 8 comments… read them below or add one }

1 tough beans! February 27, 2021 at 10:13 AM

In the article above, is stated:

“Selectman Brian Shea noted part of the issue appeared to be that even under an agreement the railroad would be cutting into the restaurant’s parking area. The Board didn’t know how much parking would be lost under the agreement.

Healey noted that without an agreement the railroad was asserting its right to its full boundaries. He opined that if the owner came to the table to negotiate, maybe they could convince CSX to increase the area of allowed use.

Selectman Lisa Braccio wondered how many spaces the restaurant was legally required to have. She noted that the agreement might be moot if the boundary eliminated too much parking for the restaurant to stay open.”

1. The railroad would not be cutting into the restaurant’s parking lot since the restaurant does not own the parking lot. The restaurant is, and has been, infringing on CSX property!

2. It is unfortunate that the Mauro Cafe has been illegally using an abutter’s property for so long. It is time to give it up!

3. As for parking spaces “legally required” for the Mauro Cafe, there’s a pizza restaurant across the street with only on street parking. It would seem Ms. Braccio’s concern is orthogonal to the discussion at hand. Diversion?

Mauro – time to move on! Digging in will likely result in losing the maximum amount of parking lot. Too bad you’re not interested in negotiating!

I hope CSX builds a barrier.

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2 beth March 1, 2021 at 8:52 AM

“there’s a pizza restaurant across the street with only on street parking. It would seem Ms. Braccio’s concern is orthogonal to the discussion at hand. Diversion?” Actually, the plaza that Southborough House of Pizza is part of has a parking lot in the rear.

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3 Interested March 1, 2021 at 11:31 AM

You hope CXS builds a barrier? Why would you want that to happen? That’s a rather harsh stance and mean comment.
The spirit of Southborough is a neighborly one where we all hope for the best for one another.
Yes, we disagree on issues at times. But this comment is out of line.
Again, why would you want that to happen? Do you not think it important to support local businesses? Perhaps you don’t realize that the parking lot in question was being used in the same manner it is currently being used long before the current owners took ownership. Wouldn’t coming to a mutual agreement be in the best interest for the entire town? After all, there is a push for more businesses on Main St. Why would more businesses even consider coming to Southborough’s Main St. if there is no parking for either employees or customers?

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4 Kevin February 28, 2021 at 12:44 PM

Given that CSX is willing to lease back the disputed space, it’s clear that the company is asserting its rights not over, say, a safety concern but, instead, in an effort to extract revenue from a small local business in the middle of a pandemic. CSX revenues in 2019? $11.93 billion. Net income? $3.33 billion.

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5 Kelly Roney March 1, 2021 at 5:34 PM

Yeah, seems like unnecessary hardball, doesn’t it? I looked around for other abutters getting arm-twisted, though, and I didn’t find any. I did find unsubstantiated claims that the rail rights-of-way might be re-leased to data providers to string or bury their cables.

I will say that a bit of light reading (heh) in Ch. 160 of the Mass. General Laws indicates that a lot of the special treatment of railroad companies dates from 150 years ago, when steam engines were the norm. It might be time to review some of that special treatment, but practically speaking, the statutory exemption that Beth linked to from the normal law of prescriptive easement remains essential.

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6 Allan Bezanson March 1, 2021 at 3:30 PM

Who remembers the friendly old days when the train crew stopped on a regular basis for breakfast at Mauro’s? They would arrive, northbound, around 7 am and come to a halt so the caboose people could walk back across the street to the spa. Then, after the traffic passed, the engineer would back up and park the engine beside the now-disputed parking lot where it could be admired as it’s massive diesel rumbled, idling. It was so cool to have coffee with real train guys and talk to them about life on the rails. I recollect the engineer wore one of those official caps.

Surely Mauro’s can work out something amicable. The legal team at CSX headquarters down in Jacksonville likely never tasted blueberry muffins like Mauro’s and when they are shipped frozen, then thawed, they are still 95% delicious.

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7 Frank Crowell March 2, 2021 at 9:26 AM

After reading this article, is there any mystery as to how the PILOT “negotiations” are going?



In the words of a recent former president, “Never go to a gun fight with knife.” Any right of way violations by CSX in Southborough? When CSX container trucks roll through town, any weight or safety issues? Are there any bylaws that Southborough can pass to make CSX business life more difficult? Is there any input from our state reps on this subject?



Pretty good read below:



https://www.2point.net/post/railroad-right-of-way-dispute-law-of-easements-and-the-boundary-consultant

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8 Allan Bezanson March 4, 2021 at 10:11 AM

Whatever the outcome of CSX-gate let’s not forget Dick Curran of the Spa. Among Dick’s many virtues he was a friend to the railroaders. See the comments on this piece remembering Dick.

http://www.mysouthborough.com/2012/01/30/dick-curran-memories-of-my-neighbor/

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