Fence Issue Brings Divide between Essex Street,Mishawum Neighbors

By Seth Daniel

Mary Bailey has seen it all in her 90 years when it comes to Mishawum Park.

She once lost her home on the now-defunct Mill Street to the affordable housing family development many years ago when it was built in the 1970s, having watched her home be taken through eminent domain by the Boston Redevelopment Authority (BRA) and torn down, though she was lucky enough to move 100 yards west to Essex Street.

In the last two years though, the 90-year-old lifelong Townie has been served court papers several times by a constable from Mishawum Park Tenants Association, and after a judge’s ruling early this week, she’ll now have to cede most of her backyard and watch the Park take her old vegetable garden as they push forward to build a six-foot stock fence that neighbors say is, at best, ill-conceived, and at worst just a matter of spite.

“We call it the spite fence,” said Patty Kelley, who also lives on Essex Street and has been part of the court drama that has played out over the last two years. “There’s really no other reason for it that we can figure out.”

Said Bailey, “Every time you turned around, we were getting served by a constable. I’m sick of the BRA pushing me around. I’ve had it. They took my home and they pushed me out to build Mishawum. I’ve been down here since I was 13 years old. Now Mishawum wants to take my backyard, for what I don’t know, and I’ve had enough of it.”

That said, a judge early this week sided with Mishawum and its Tenants Council, headed up by President Kelly Tucker. The order issued by the judge is limited and has restrictions, but allows Mishawum to build the fence if it gets approval from the BRA – which sold the Association the land in the 1970s under a Land Disposition Agreement. In statements this week, the BRA said permits would be needed, and urged Mishawum to come to an agreement with neighbors before building what is proposed.

The fence effectively would cut through the backyards of almost all 10 residents, with parts of the fence going right up to about two feet away from the window of an older woman on the street – a woman who for years looked out upon flower pots and lawn chairs.

JUDGE SIDES WITH MISHAWUM

“I can’t say much about this case because it is in litigation,” said Attorney Jeffrey Turk, who represents Mishawum. “Mishawum Park is a non-profit housing provider whose goal is to prove affordable housing…They filed this case in an abundance of caution to do work and the court has approved the work being done.”

The judge’s ruling said that he could not force the neighbors to get along, but he had to rule on the basis of property rights.

“After further hearing and upon review of the papers, the Court finds that the plaintiff has a likelihood of success and will be irreparably harmed in the use of its property rights if it cannot take certain steps toward the exercise of this property rights,” read the ruling. “The neighbors have strong interests in the security and appearance of their neighborhood…the Court required the plaintiff to meet with the neighbors at the site on Monday, June 20, so that everyone would have full and fair opportunity to understand the plaintiffs’ plans and to raise any legal objections, based upon full disclosure and understanding. That meeting occurred. Ultimately, the Court must resolve this matter based upon the law of property rights; the parties themselves will have to address the broader question of how to co-exist as neighbors.”

Joe Kelley of Essex Street said he has lived on the street all his life, and he pointed out that the homes were there a good 100 years before Mishawum. He said that when the Park opened up to the 400-plus residents, there was a gentleman’s agreement that the Essex Street neighbors would always have parking and access to the backs of their homes through a distant sliver of land way in the back of Mishawum – a corner rarely used by anyone.

“For 45 years it was like this, the same kind of relationship and no one bothered anyone,” said Joe. “Then all the sudden it’s been this legal battle and they want their land back, but we don’t even really know if they own the land. In two days it went to Superior Court on us. I was served by a constable on Monday at 7 p.m. and had to be in Superior Court in Boston by Wednesday at 2 p.m. I’ve never seen anything like that. I could murder someone and I would be in jail two days before I even got arranged in district court.”

In between, there have been dirty looks and meetings that went nowhere, and even a disputed 9-1-1 call during an official land survey.

NO TIME FOR A COMMUNITY MEETING

State Rep. Dan Ryan has even gotten involved in the dispute, trying to mediate the situation – as have other public officials over the past two years.

“It would take an awful lot for me to leave a session of the House and go over to court to present a letter to the judge, but that is what I did and that’s about all I can say,” he said.

Ryan wrote that he had been trying to get neighbors together for the last year to iron out the differences and avoid any major battles over land or a fence.

“There are issues of eminent domain, adverse possession as well as federal, state, and local funding issues and other complicated matters that only can best be answered by getting all the facts together before appearing in court,” he wrote. “At the time of the summons for this complaint, I was in the process of bringing together the parties necessary to uncover the documents needed of the facts to be laid out in a true public, community meeting…The Mishawum Park Tenants Association is heavily subsidized with public money. This leads me to believe there is an added level of scrutiny as to their mission, their expenses in court and their reasons for wanting to fence out the neighborhood…It is my belief that the complaint to your court, by the plaintiffs, is a possible effort to avoid city, state and federal officials that have an interest in this very public matter.”

STARTED WITH SNOW COMPLAINTS

Joe Kelley said the change in neighborhood harmony came, in earnest, two years ago when record-setting snow piled up all over the city. During that snow deluge, Mishawum Park pushed excess snow in front of access points for Essex Street neighbors.

“It was the snow that caused this snowstorm,” said Kelley, noting that they complained to ISD and, likely, Mishawum Park was ticketed. That, he postulates, must have upset someone enough that they decided to build this fence.

Now, with a judge’s ruling, neighbors are left to sort out what will happen next.

But don’t look to the BRA for any guidance right yet.

Already, a letter has been issued by Director Brian Golden saying the Park cannot add or subtract from the development without BRA approval and that there were major concerns.

Yet, at the same time, top BRA Architect Corey Zehngebot has also issued a letter approving the idea and design of the fence, though it isn’t certain whether or not that gives Mishawum the approval to build the fence.

This week, after the decision, the BRA issued a statement saying the ruling may favor Mishawum, but permits are still required though a process before any fence can go up. The BRA urged Mishawum to speak with neighbors before seeking any permits to build.

“To clarify, Director Golden’s letter on April 8 did not oppose the idea of a fence on the Mishawum Park development,” said Spokesman Nicholas Martin. “It simply asserted the BRA’s right to review and approve a section of the proposed fence that would abut property governed by a Land Disposition Agreement prior to any work proceeding. On June 16, after staff from our urban design department conducted design review of the section of fence in question, we approved the proposal but made it clear that any additional changes would require further review by the BRA. It is our understanding that the proposed fence in its entirety will need to be permitted by the Inspectional Services Department, as the BRA is only responsible for design review of a specific portion. We would strongly encourage the proponent to meet with concerned neighbors to discuss the fence proposal broadly speaking before seeking permits to begin construction.”

Neighbors on Essex Street have been dragged into court and served by constables over the last two years by Mishawum Park Tenants Association. The Association desires to put up a fence on what it believes is its property - a fence that would run through backyards that have existed without a problem for some 45 years. Here, Sharon Brady, Patty Kelley, Mary Bailey and Joe Kelley stand next to the existing fence, which a judge ordered on Monday to be taken down.

Neighbors on Essex Street have been dragged into court and served by constables over the last two years by Mishawum Park Tenants Association. The Association desires to put up a fence on what it believes is its property – a fence that would run through backyards that have existed without a problem for some 45 years. Here, Sharon Brady, Patty Kelley, Mary Bailey and Joe Kelley stand next to the existing fence, which a judge ordered on Monday to be taken down.

Neighbors concluded by saying they are tired of the situation and exhausted financially from it as well.

“All but two of us are on fixed incomes, retired or are elderly,” said Patty Kelley. “We don’t have the unlimited resources of Mishawum Park for lawyers. They have absolute power over everything. They’ll just come at you and come at you until you exhaust all your resources and throw in the towel and give up…We want the residents of Mishawum to know what’s going on because we feel the people there who have a vote might not approve of all their money being spent on legal fees to fight against us for a fence.”

Said Sharon Brady, “All we really want is for them to leave us alone, and we don’t want their fence either.”

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