Following the town's issuance of a legal opinion from Attorney Paul Gillies that the path is a public right of way, Carter engaged Attorney Lauren Kolitch to represent her in pending litigation.
The select board informed Carter in July that they intended to hire a surveyor to complete a record map of the right of way for filing in the town land records. Kolitch communicated to the town, in writing, on August 12 that the town was not authorized to enter Carter's property for any reason.
VILLAGE PATH
At the September 8 meeting, select board chair Burt Bauchner provided an update of what he called "the ever-popular village path."
Bauchner recounted that the town "received a fax from Kolitch, representing Carter, seeking a response from her letter earlier in the summer that said she was going on vacation but delineated a whole bunch of demands."
Kolitch's letter indicated that she has retained experts to assist her and listed her preliminary findings.
The letter also references Gillies' claim that a deed exists that reserves the right of way for a Cornelius Divoll.
PARCEL OF LAND
Kolitch wrote, "It is the opinion of my experts that the Divoll deed extinguished any rights that Divoll and the others may have had to the parcel of land described in Book 10, Page 430, and that there were no rights over the Veda Carter property that could be conveyed to the school property after that date."
She continues, "I am puzzled as to the failure of the town (through its expert Mr. Gillies) to, at the very least, identify the Divoll deed contained in Book 11, Page 511. If there are additional documents, deeds or legal theories upon which the Town relies, my client and I seek to review them."
"At the very least, full disclosure, by the town, as to all potentially applicable documents or information contained within its records should be shared with my client. It is disheartening to find that, even if we ultimately disagree as to the legal conclusion, the town (or, its expert) is not fully disclosing all material town records that may shed light on the issue," Kolitch added.
LEGAL BASIS FOR ASSERTION
Kolitch concluded the letter with a request to the town for a response as to the "legal basis of your assertion that the town may merely, 'prepare a record map of the right of way for filing in the town land records and mark the path and post the path as a public way.'"
In reference to the fax, Bauchner said, "I communicated with her and got a response back saying, 'Oh, Gillies is not your expert? He's your counsel?' in reference to Kolitch's response.
Bauchner said he then "got back to her and told her that he is our counsel and she is welcome to communicate with him. She wrote back and said, 'I'll communicate with him exclusively, because that's the way it is supposed to be done.'"
PRELIMINARY INJUNCTION
"So I didn't have to tell her that; she figured it out for herself," he continued.
The town's attorney, Paul Gillies, made two recommendations, according to Bauchner.
The first is to "hire a surveyor that is articulate enough to come to court to testify, and the second is the notion of a preliminary injunction," he said.
"What that does is it changes the dynamic of the piece of litigation and it makes it very quick. It comes up in court very quickly, and he (Gillies) feels strongly that the evidence is almost incontrovertible that the town owns that right of way and has owned it since the 1850s," Bauchner said.
EMOTIONAL AND SPURIOUS
"People can make emotional arguments and spurious arguments and get up on soap boxes which is essentially what some people have done, but it doesn't change the facts. Facts are that the town owns the right of way, if it goes for a preliminary injunction that confirms the fact that the town owns the right of way," he continued.
Theoretically, according to Bauchner, "You have to go on for a permit of resolution, but since the injunction will likely be heard by the same judge, if he grants the preliminary injunction, it's extremely unlikely that he will reverse himself further on."
Bauchner said that the town's legal counsel felt that a preliminary injunction will be the end of the case "as we believe it will go our way," he said.
GAIN ACCESS
"With a preliminary injunction we gain access; so with things the way they are now, we are sort of backing off and just not attempting to access the property," Bauchner said.
"That would make this thing happen very very quickly. If we don't, the thing turns around. In that event, Ms. Kolitch will attempt to drag this thing out forever," he continued.
"What we'll need is just some evidence that states that despite the fact that bussing is available for all students, in fact, parents and their children walk to school, and he (Gillies) doesn't see any real issue in demonstrating that walking on the School Road and the Brook Road is a safety hazard," Bauchner added.
SURVEYORS AND RATES
Select board member Kirsten Reilly said that the when the town applies for the infrastructure grant, the "path could be a piece of that, connecting the roadways to the school."
Town officials voted to authorize Paul Gillies to proceed with a preliminary injunction, and asked the select board members Matt Groom and Andy Cunningham investigate possible surveyors and their rates.
"I have no way of saying what the lawyer's fee is going to be because it will depend on how this goes, but I don't see that we have a whole lot of choice," Bauchner said.
SPENDING THE TOWN'S MONEY
He continued, "We're going to try to make this happen as fast and quick and simply as possible; we have no intention of spending the town's money."
In conclusion, Bauchner commented to a member of the press who was present:
"Do you have that complete? I didn't mean to wake you up, but it seems to be a hot topic in the Village Reporter [sic]. It would be great if it were accurately reported."
Warren resident, Rudy Elliott added, "Nothing is accurate in this town."
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