January 25, 2023: Press Release re Eversource High Voltage Project on Old RR Sudbury
On Monday, January 23, 2023, counsel at the Boston law firm of Bernkopf Goodman filed a new complaint against the MBTA with the Massachusetts Land Court on behalf of two Hudson landowners whose properties abut the inactive Boston & Maine rail line. The complaint seeks to clarify the rights in the rail line where Eversource is installing a high voltage cable it alleges is necessary for redundant service between Sudbury and Hudson. A copy of the complaint is available here.
The Hudson plaintiffs claim to have a fee interest in the MBTA’s railroad right-of-way corridor contrary to the positions taken by the T and Eversource that a 1977 taking divested all landowners along the line of their fee interests. Many of the lands were in fact just easements for surface transportation and did not convey a full fee. Most importantly, the landowners believe that the 1977 taking is void because the MBTA has no jurisdictional authority in Hudson. The T’s enabling statute, G.L. 161A, specifies the municipalities over which the T has transit authority; Hudson is not included.
The complaint also requests preliminary and permanent injunctive relief prohibiting any further construction or activity on the Eversource project known as the Sudbury-Hudson Transmission Line. If this claim is successful, the T would be barred from use of these properties including for the purposes of an underground transmission line. Protect Sudbury fully supports the Plaintiffs in their claims and will continue to monitor this lawsuit.
The earlier Land Court case filed in November 2022, by Sudbury and Hudson plaintiffs which raised questions of land ownership of significant portions of the right-of-way in both Hudson and Sudbury was dismissed without prejudice by agreement of all the parties at a Pretrial Conference held January 18th. “Dismissed without prejudice” means that the case can be refiled. and allows a refiling of the claims which has now been done. The facts presented in the new filing raise the same claims with new parties. The fact that the new filing has Hudson plaintiffs does not necessarily end potential litigation over the Sudbury portion, as it requests relief that may resolve the validity of the taking in Sudbury.
Neither of the Land Court complaints challenge the railroad surface easement or the lease the MBTA granted to the Massachusetts Department of Conservation and Recreation (DCR) for the Mass Central Rail Trail. These activities do not interfere with future transportation uses or exceed the scope of the Right of Way as does the Eversource transmission line which is underground and precludes future rail or motorized transportation. Protect Sudbury’s mission has always been, and continues to be, the preservation and protection of the environment, water supply, landscape, health, safety, historic character and property values of the town. Our primary objective remains preventing all high voltage transmission lines along the MBTA ROW and to prevent above-ground transmission lines anywhere in Sudbury.
A successful outcome in this case will provide an opportunity for the Towns of Sudbury and Hudson to exercise their own property rights in the MBTA’s railroad right-of-way corridor. Each town has significant public holdings abutting the corridor. These public lands serve public purposes that each town has deemed important to protect. Sudbury’s land includes the environmentally sensitive Hop Brook Conservation area, while Hudson’s land includes a significant section of the protected Zone 1 aquifer that supplies one of their primary public drinking water wells. Should the plaintiffs prevail in the current case before the Land Court, the door may be open for both Hudson and Sudbury to take the legal steps necessary to regain ownership and control over the use of this land.
The Sudbury Select Board in their most recent meeting discussed returning to free cash the $150,000 litigation fund set aside by the citizens at the 2021 Town Meeting. These funds are earmarked for use on any legal matters associated with halting the construction of the high voltage transmission line. The Protect Sudbury community must contact the Select Board and urge them to use the funds in the manner that we – the people – voted on and approved at Town Meeting. Here’s how: Send comments
to: selectboardsoffice@sudbury.ma.us and/or call and leave a message at 978-639-3381.
Protect Sudbury continues to be a powerful opponent to Eversource’s unnecessary high voltage transmission line thanks to generous community support. We won’t give up!
Thank you!
December 16, 2022: Setting the Record Straight
In my opinion, this Patch article is best described as the ‘skin of the truth, stuffed with a lie’.
It is particularly troubling as the article calls into question Protect Sudbury’s motivation for our opposition to a high voltage transmission line project. A project that still promises to do irreparable damage to our environment and as well as threaten the health and safety of our community.
Yes, Protect Sudbury IS challenging the ownership of sections of the MBTA right of way. If successful we can stop the construction of the transmission line. Our goal since 2016. However, we are NOT challenging the DCR’s lease that allows them to construct a rail trail along that same railroad corridor. The accusations that the Protect Sudbury community is somehow ‘anti-rail trail’ are completely unfounded and fabricated. I suspect that you may feel the same resentment as I do, given the seven years we have spent trying to protect our community from the transmission line. We cannot let these lies stand.
Since our incorporation in 2016, Protect Sudbury has never taken a position regarding the construction of a rail trial. Why? Because Protect Sudbury's fight is NOT and has never been about rail trails. It is about a 115kv transmission line that brings with it serious health and safety concerns for our community.
Rail trails alone cause minimal environmental damage. They tend to cap any underlying contamination making things a bit safer. However, when combined with an underground high voltage transmission line, both have the potential to impact both the health and safety of the community. Such a project at this scale has never been done before. The potential for unintended consequences is significant.
Of greatest concern is what the rail trail advocates are not telling you about the dangers of combining a recreational resource with a high voltage transmission line. Here are a couple.
1. Users of the recreational trail will be standing less than 10 feet from the transmission line. At that distance, under certain load conditions, that transmission line will emit radiation that is well above the limit that the Energy Facilities Siting Board (EFSB) has found to be safe.
2. Eversource, in their own sworn testimony to the EFSB admitted that such levels of radiation contribute to childhood leukemia.
3. Eversource is not building a rail trail. They are building an access road to service their infrastructure. It is designed to accommodate their repair and maintenance vehicles not
pedestrian traffic. Instead of a crushed stone dust path with a tree canopy, we instead will have another Route 20 running through our conservation lands.
4. Unlike a surface-based rail trail, the deep trenching required to construct a transmission line threatens our town water supply due to the documented contamination running throughout the railroad right of way. Digging it up will disturb the contaminants. They are not removing these soils but instead placing them back into the open trench.
5. Eversource’s own testing has documented that the arsenic levels on the railroad bed exceed the state limits. The real potential exists for this arsenic to become airborne during the construction. Eversource has refused to installed monitoring stations to help ensure that the public is kept safe.
I could go on.
Refute the lies. Stop the transmission line.
December 13, 2022: STB Ruling
I hope this message finds you well this holiday season.
According to reports I have received from Hudson, phase one of tree clearing is nearing the Sudbury border. It appears that Eversource is only making an initial cut at this time. This is to allow the machines access to remove the railroad ties and rails. Larger equipment will return to take out the larger trees and clear for the splice vaults.
REQUEST TO MONITOR
Whether you are out enjoying Sudbury’s beautiful conservation land or you are a direct abutter, please record Eversource’s activities (video and pictures) to the best of your ability. Please note – Eversource is required to wet down the rail bed to inhibit the spread of the arsenic laden dust. Of particular concern is the spread of this dust to nearby homes. Also, any work taking place in wetland areas must have a designated Sudbury Environmental Monitor on site to ensure compliance with the order of conditions. We want to empower all residents to help us monitor the work and report any concerns or violations to president@protectsudbury.org.
HARMED LANDHOLDERS UPDATE
Today we received notice from the Surface Transportation Board (STB) that they have declined to make a determination regarding the status of the MBTA right-of-way at this time. The Board argues that unless and until a case is brought forward in Massachusetts Land Court, there is no need for their ruling. They say;
“……..the Board will exercise its discretion not to issue a declaratory order at this time. However, if Landowners are successful in invalidating the taking and establishing that they hold reversionary rights, the Board would be willing to address the status of the Line.”
One of the key reasons we decided to move forward in October and file in Land Court was because we realized that this was a potential outcome at the STB. I want to emphasize that this non-determination is not a setback but in fact helps advance our case. We did not ‘lose’ anything today as some of our detractors are surely to suggest.
Here is how this ruling helps us. The Land Court is not likely to dismiss our case out of hand claiming that there are jurisdictional issues (federal vs state) that must first be settled. If we have a legitimate case to make in Land Court (and we do) and if the Land Court wants clarity on the status (active or abandoned) of the MBTA ROW, the Surface Transportation Board will address the status of the line at the court’s request. In short, this ruling ADVANCES our case.
Since my last update, we have retained the firm of Bernkopf Goodman in order to fully develop the harmed landowner’s case and prepare it for presentation to the court in early January.
As in any legal case, we can never be sure as to how things will progress (ex: today’s non-decision). The only certainty we have is that if we do not act right now the project will proceed unchecked and our greatest fears about the threats to the health and safety of our community will be realized.
There is a good chance to prevail in this case and prevent installation of transmission lines on the MBTA right-of-way, while preserving DCR’s ability to create the Mass Central Rail Trail on the existing surface easement. Continued support through financial contributions is key to the Protect Sudbury’s ability to push forward with this case as the MBTA will not go down without a fight. We have vowed to take this fight to its conclusion provided we have the support of the community. Your donations are key to our on-going success.
HELP US SPREAD THE WORD
Finally, please help us continue to get the word out. There are many new residents in town who may not be aware of this egregious project, and there may be residents who are not up to speed on the most current news. Please help us inform and educate. Dive in and contribute facts on any in person or social media discussions. Continue to promote two messages:
1) If you want this construction stopped CONTRIBUTE TO PROTECT SUDBURY LEGAL FUND IMMEDIATELY
2) Demand that the town use the $150k (voted and approved by citizens) in order to participate in the land court action already underway. Additional funding is critical for a stop work injunction. I have attached a sample template for such a letter.
Thanks for your support during the last seven years!!!!
Let’s do this!
Ray
SAMPLE LETTER
To Whom it May Concern:
I am sharing my deep concern and disappointment that the Select Board has not acted in the best interests of the town in doing all it can to prevent Eversource from moving forward with its transmission line project. Given that since 2016 the Sudbury community has approved seven appropriations to fund litigation against Eversource, we expect the last appropriation approved in May 2021 to be used in its entirety to continue the legal opposition of the project. Unwavering disapproval from the Sudbury community to this unnecessary and destructive proposal has been clear from the start.
I recommend the following:
The Board must support an injunction to stop Eversource from clearing the right-of-way until the ownership of the land is established in Massachusetts Land Court.
The Board must weigh in on the case already before the Court to establish which entity actually owns the land to the center of the tracks within the Hop Brook Conservation Land parcel.
The Town must be actively engaged in assisting the legal fight to prevent digging an eight-foot trench through our wetlands.
I request that the Select Board act quickly and decisively to re-engage in this legal battle and protect our natural environment, including clean and safe water, from Eversource’s assault on our town.
Once these resources are gone, we can’t get them back again.
Sincerely,
Name
Address
November 3, 2022: Freedom and Property Rights – New Law Suit Filed
Like many of you, I found it very disconcerting to see the Eversource construction crews fencing off and locking the entrance to the railroad right of way (ROW). The ROW has been a recreational resource used by the Sudbury community for over 40 years. Unfortunately, even after the construction ends in two years, the two-inch bluestone surface will make it virtually impossible to walk upon. This effectively ends any recreational use into the foreseeable future.
However, the “No Trespassing” sign may ultimately prove to be a bit ironic if the courts agree that over a mile of the ROW does not belong to the MBTA. We believe that the MBTA only has a surface transportation easement over those lands and that neither underground nor overhead transmission lines are permitted.
Yesterday, a lawsuit was filed at Massachusetts Land Court on behalf of certain “Harmed Landowners.” These Sudbury and Hudson landholders own property adjacent to the railroad right of way (ROW). Our research indicates that each landholder’s property includes the land underlying the ROW. The Land Court filing was made with the assistance of Protect Sudbury. It is the first legal step in clearing the titles to these properties. These landholders’ claims will certainly be contested by the MBTA. It is likely to be an extended and expensive legal battle. However, we firmly believe that the ‘harmed landholders can prevail in this case through the continuing financial support of the Protect Sudbury community.
Prevailing in this case also means that the DCR rail trail that is planned for this right of way, will ultimately be constructed. It will be funded through federal and state governments programs, those same programs that have constructed most other rail trails in the state. The rail trail will be safer. There will be no harmful underground electromagnetic radiation (EMF) present or closures due to transmission line maintenance. Further, the extensive environmental damage associated with the construction of this underground transmission line will be eliminated. This is the vision we all share for this valuable community resource.
We will keep the Protect Sudbury community fully apprised each step of the way in this legal battle. In the meantime, please take the steps necessary to protect your property as we have outlined on our web site. And most importantly, carry this message forward to all the residents that are only starting to realize the harsh reality of the intended and unintended consequences of this project.
We will continue this fight with the goal we have had since day 1; stopping this transmission line. Your continued support is all that is required.
Thank you!
“Freedom and Property Rights are inseparable. You can’t have one without the other.” ~ George Washington
October 21, 2022: Construction Schedule
We are aware that Eversource plans to start construction of the high voltage transmission line with clearcutting trees. Construction would begin at White Pond in Hudson on October 31st and proceed into Sudbury.
Protect Sudbury plans to take legal action against the proposed project sometime before the start date. While confident in our approach, we cannot be certain how long and to what effect our legal action will have since that is ultimately up to the court and its process. Be assured that we are doing everything we can to slow or stop any construction activity. It is important to be prepared in advance for whatever and whenever something may happen along the right of way in Sudbury.
The Sudbury Conservation Commission’s Order of Conditions (OOC) is very specific regarding tree taking. Our Conservation Agent must approve every tree taken, and every attempt must be made to preserve the existing tree canopy. The environmental monitoring company hired by the Town of Sudbury should be present at all times to observe Eversource actions and to ensure Eversource’s compliance with the Sudbury OOC. If Eversource fails in compliance, construction will be shut down until that issue is resolved.
If the trees for removal are not marked, and you are concerned about any tree that will be taken, contact Lori Capone, the Sudbury Conservation Agent, and ask to have the trees identified that have been approved for removal. Her office number is: (978) 440-5471
If you feel that the tree cutting is not consistent with the OOC, a complaint can be filed with the Sudbury Conservation Commission. A copy of the OOC can be downloaded from the Town of Sudbury website in the Eversource project section.
If you are an abutter to the right of way, we recommend that you take pictures of your existing viewscape. Take pictures at all angles when facing the right of way from your property, and of the areas of the right of way directly adjacent to your home to document the ‘before’ condition of the area which could prove important down the line. Review the Protect Your Home document on the PS website for more details.
Current Tree Cutting Schedule:
Oct 31 – Nov 1 White Pond to Sudbury Town Line
Nov 2 – Nov 4 Sudbury Town Line to Bridge 128
Nov 7 – Nov 7 Bridge 128 to Dutton Road
Nov 8 – Nov 10 Dutton to Peakham
Nov 14 – Nov 15 Peakham to Horse Pond
Nov 16 – Nov 21 Horse Pond to Union
Nov 22 – Nov 22 Union to Boston Post Road
Nov 23 – Nov 23 Boston Post Road – Bridge 127
Nov 25 – Nov 29 Bridge 127 to Eversource Sub-Station
October 6, 2022: Dentists, Edison, and the OK Corral
While at my dental appointment today, I happened to be gazing of the window and noticed and old railroad bridge not often seen because of its location. This was not any old bridge, it turns out to be the Central Mass Railroad bridge #127. Surrounded by the fall foliage it was truly a beautiful sight! The dentist told me that patients routinely express their appreciation of this magnificent view. To better understand the historic significance of this bridge you must remember that it was built between 1880 and 1881. In that same period, James Garfield was sworn in as our 20th president, U.S. Marshalls were rounding up Billy the Kid, Thomas Edison was patenting the first incandescent light bulb, the Boston Symphony was performing its first concert and the gunfight at the OK corral was occurring. Yes, it is that old and equally historic. This bridge is one of the last remaining ‘plate and girder’ bridges in existence and because of its historic significance it is listed in the Massachusetts Historic Register.
Yet, despite all the objections brought forward by the Massachusetts Historic Commission, the Sudbury Historic Commission and Protect Sudbury, Eversource insists to destroying this bridge. It will be taken from us and all future generations unnecessarily.
This is just one of the countless reasons why Protect Sudbury remains passionate about stopping this unnecessary project.
We believe that we now have a legal strategy that will put an end to this unnecessary project forever. It will be a long and drawn-out legal battle, but we remain committed to seeing this through to the end so we can achieve that goal.
We continue to need the financial support of the Protect Sudbury community to help pay the legal fees necessary to realize this outcome.
We are starting a new fundraising campaign and have set a goal of raising $50,000.
Please thoughtfully consider a donation to not only protect this historic resource, but our entire community from the consequences of this unnecessary project.
Once again, thank you for your continuing support!
October 5, 2021: Letter to Governor Baker
Select Board’s letter to Governor Baker and Eversource CEO in which we ask (AGAIN!) if the line is necessary since it has been 13 years since the idea for it was conceived.