Thursday, September 7, 2000 Older Editions

Taking citizens' land for sewers?

By Rebecca Piro

Andover has upheld an unwritten policy against taking land by eminent domain for years, say town officials. But in the case of the Ballardvale Road/South Main Street/ Rogers Brook area sewer project, slated to start next spring, that policy could be washed down the drain.

For the first time in years, the town may take private land from residents who refuse to sign easements allowing sewer lines to cross their land, says Department of Public Works Director Jack Petkus.

Eminent domain is the government's right to take private land for public use at a fair market price, if the government determines the land-taking is for the greater public good.

"It is probably one of the biggest powers that the board can utilize, and it's one that you don't use haphazardly," says Selectmen Chairman Brian Major.

Right now, DPW has asked countless residents for easements, or permission to bring lines across their privately owned land. Within the $27-million sewer budget is money included to appraise land and pay a fair price for an easement, says Petkus.

According to town Assessor Bruce Symmes, those prices will vary widely, "from something nominal to tens of thousands of dollars," he says. An appraiser must consider a piece of property's worth before an easement is taken, compared to its worth after a sewer line runs through it.

If an owner is not satisfied with the town appraiser's quote, the owner may have their own appraisal done and settle on a price with the town. Or, Petkus says, the owner can refuse the easement request completely.

Petkus says three households presently have refused the easements, three have agreed, and up to 24 more have requested additional information before making a decision. That group of residents is only the first batch the town needs to convince, he adds.

But residents who refuse to sign an easement should not see their land taken through eminent domain, says former DPW Director Bob McQuade, who was still director when the sewers were approved at 1998 Town Meeting.

"As far as I'm concerned, (using eminent domain) is not an option. The town has had a policy never to exercise it. We've had sewers that extended all the way out to Lowell Junction, a multi-million dollar project, and we did not have to use eminent domain," he says.

McQuade insists that negotiation has always led to amicable agreements in the past, and he feels confident that negotiation is still the best, and only, way to go.

Major, who was also in office at 1998 Town Meeting, says the selectmen have never openly pledged to avoid using eminent domain, but admits that the town has had an unwritten policy to avoid using it whenever possible.

"In the past, the town has shied away from using eminent domain to obtain property for almost any purpose." But, he added, "that doesn't necessarily carry through on the sewer projects."

For the past 20 to 30 years, Andover has only used eminent domain in "friendly" property transfers, where both the buyers and sellers agree to it, says Major. In such cases, eminent domain ensures that the municipality has sole ownership, negating any past title disputes.

But in terms of the sewers, eminent domain could be crucial to the project's completion, he says.

"I would agree to use eminent domain if necessary," Major says, noting that he does not speak for the whole board, which he says has not had a detailed discussion about the option yet. "If you get into a situation where one piece of property stops an entire leg of the project from happening, you can't stop the whole project because of that."

Resident Martha Totten of Millstone Circle agrees that eminent domain should be a last resort. She and her husband, John, agreed to an easement across their property, but only after the town came back to them with several revised plans.

"The first couple of plans they had were really going to tear up our land quite a bit," she says. "We told them what we would have liked, and they eventually agreed to that. Two or three times the town came back with plans."

Despite the Tottens' initial hesitations, the town listened to their concerns and never threatened to invoke eminent domain, she says. She says there is no reason to expect dealings with other households will be any different.

"I think the town has done their best to accommodate when they could. When we said 'No' the first time, they didn't say 'Tough luck, we're coming back with eminent domain,' " she says.

Totten, who believes that sewers will improve her home's resale value and eliminate septic-tank costs, understands that some residents may worry about their yards being torn up. But she feels the positives far outweigh the negatives -- and if it came down to sewer or no sewer, she says the town should not rule out using eminent domain.

"I would use (eminent domain) as a last recourse," she says. "I couldn't think of a reason why one person holding out would be a reason to just scrap (the whole project)."

Five residents who have been contacted by the town concerning easements could not be reached for comment by the Townsman. One resident, who Petkus says turned down the easement option, refused to comment.

For now, there is nothing to force the hand of selectmen, who act as the town's sewer commissioners. The state has yet to approve the project, and the town's appraiser, William LaChance of Petersen/LaChance Realty Advisors, out of Danvers, says the appraisals will be completed within the year.

But after the town makes its offers to the owners, it will be clearer how many are willing to agree to an easement, and how many are not -- and whether the selectmen will have to choose between "greater public good" and residents' rights to their land.