By Theresa Knapp

At the request of the Hopedale Planning Board, town counsel has issued an opinion related to the 703 feet of unpaved area at the end of Overdale Parkway, which has been the subject of litigation off and on for decades. 

In a six-page opinion letter to the Planning Board (and copied to the Select Board) dated July 27, 2022, Town Counsel Katharine Lord Klein, of KP Law, stated, “In summary, in my opinion, by virtue of the 1985 Vote, as memorialized by the Agreement, the Applicants have the right to access their property by Overdale Parkway.” 

The letter is available at www.hopedale-ma.gov and at https://bit.ly/3QUo5pP 

The “1985 Vote” refers to the vote of Special Town Meeting on June 24, 1985, “where it was voted to accept as a gift a 30 foot wide paved access road into the Hopedale Parklands from the present end of the pavement on Overdale Parkway,” says the letter. 

It was later learned the town did not formally accept the gift, which it did in June 2021. 

The “Agreement,” as summarized in Klein’s letter, refers to an agreement reached in August 2021, wherein developer Black Brook Realty Corporation, developer Ricardo Lima, and the Select Board agreed the developers would upgrade the road to town subdivision standards and add parking spaces at the entrance to the Parklands in exchange for access to the property. Black Brook also agreed to grant a conservation restriction for a portion of its land. 

The issue came to the fore again recently when Black Brook and Lima filed a 10-lot subdivision plan for “Hopedale Ridge” with the town’s Planning Board. 

In 1999, Black Brook had a subdivision plan approved for 42 lots but the decision was appealed in Land Court which held, in 2003, that the Planning Board had exceeded its authority in approving that development. 

The “Overdale Parkway Association’’ which includes residents of the private dead-end road that extends from Freedom Street to the entrance to the Hopedale Parklands, claims the 703 feet at the end of the paved portion of Overdale Parkway cannot be used to access the proposed subdivision. 

In February, a lawyer for the Association sent a letter to the Planning Board opposing the development. This prompted another review by Klein who opined in her July letter: 

“Applicants have a right to seek approval of the Planning Board for the proposed subdivision, as the 1985 vote and the Agreement provided the required access that the Land Court and Appeals Court held was lacking” 

“Towns routinely grant rights to private pirates in Town-owned property, both with and without consideration from the private party”

“Overdale Parkway is not, nor is anyone asserting, that the road has become is [sic] a public way” 

“The Abutters have a non-exclusive easement to use the Town-owned Overdale Parkway. This right is not absolute. So long, in my opinion, as there is not unreasonable interference with the easement rights held by the Abutters, the Town may, in my opinion, grant rights to others to use the road, and the conveyance of such rights does not result in a taking of the Abutters’ property."

“It is not clear that all of the existing residences on Overdale Parkway have express rights to use the road in their deeds.” 

“The owner of the underlying property in the context of easements may grant rights to others in the same property, so long as the rights of the easement holder are not unreasonably interfered with.”

“The use of Overdale Parkway by other property(ies) is certainly foreseeable.” 

“The use of Overdale Parkway by owners of residential lots in the proposed subdivision would not constitute a taking.” 

“The intent of the 1985 Vote to grant these ten lots the right to use Overdale Parkway from Freedom Street as access is clear.” 

The 2021 agreement between current parties, “merely memorializes the terms of the 1985 Vote.” 

A title search done in 2021 found “no evidence in the [deeds to the Town], that the tracts were to be used for park purposes.”