Business owner and MBTA battle it out

Francisco Meneses of Somerville, who owns a swath of storefronts underneath the MBTA train tracks along Mt. Vernon Street in Lynn, is in the midst of a court battle with the MBTA. (Spencer Hasak)

SALEM — The Massachusetts Bay Transportation Authority took Lynn business owner Fransisco Meneses to court Thursday afternoon over his refusal to allow the agency unrestricted access to his Mt. Vernon Street storefronts, which are located underneath the Lynn Commuter Rail Bridge.

The MBTA first filed a complaint against Anna P. Cabral, the trustee of the Mount Vernon Street properties owned by Meneses on Sept. 12. In it, the agency says it suffered damages as a result of construction done by Meneses on the viaduct owned by the MBTA that sits on lots owned by Meneses. The five-count complaint, filed by attorney Gerard A. Butler Jr. on behalf of the agency, also alleges that Meneses has refused to allow the MBTA to enter his properties to make repairs to the viaduct.

The MBTA also filed a motion for a preliminary injunction against Meneses, which would prohibit him from preventing the MBTA from entering his businesses, storing personal property on the land that the agency says prohibits them from accessing the viaduct, and performing any construction work on the viaduct that the agency says would impair its structural integrity.

In a response, David L’Esperance, Meneses’ attorney, wrote that his client never prevented the MBTA from entering his properties to perform inspections and repairs and is still not preventing them from doing so. L’Esperance also wrote that the MBTA’s own expert has admitted the bridge is structurally sound, essentially invalidating the need for the agency to access the business for safety reasons. The response also claims that to whatever degree the bridge is unsafe is a result of two decades of deferred maintenance on the part of the MBTA.

Meneses has agreed to allow the MBTA access to his properties under the condition that they send him a letter authorizing him to make necessary repairs to his properties to guard against water damage from the bridge. The structures Meneses has built on the properties were drop ceiling structures to protect from rain damage, he said.

During a Thursday afternoon hearing in Essex Superior Court, the MBTA, however, claimed that Meneses’ conditions for granting the MBTA access to his properties undercut the agency’s property rights.

“The parties are very close in agreement. Except the defendant wants to have a say over when the MBTA comes in and does their inspection, which is wrong. The MBTA needs to come in and exercise its easement right whenever it deems necessary, because those are the easement rights. When a party has an easement on another’s land, the owner of the easement is a dominant estate, the defendant is a servient estate, meaning the defendant has to give way to the MBTA,” Butler said.

Butler also claimed that Meneses’ condition for access was that he wanted the MBTA to purchase the properties through eminent domain. L’Esperance argued against the claim in his testimony, in which he argued that his client only wants the MBTA to repair their bridge, and to cooperate with his client’s attempts to repair his properties.

“As we were looking at the condition of the bridge, concrete was falling down on the sidewalk. The city came and ordered the MBTA: ‘Right now shut this down. We want scaffolding put up with plywood that was concrete on the ground.’ You could look up on what’s supposed to be a concrete sidewalk, you could see the moon, the sun, the sky, and that was immediately shut down. Every five years, the MBTA has come and inspected it and they really haven’t cared about it. As a result of them not maintaining it,” L’Esperance said. “He has not been allowed [to open his businesses] because the MBTA would not participate in anything, any kind of negotiations to allow him to get his permits to make renovations or anything else.”

Butler responded briefly to L’Esperance, stating that the MBTA has easement rights over its bridge, and should not have to schedule their property repairs to Meneses’ schedule.

“The state owns that viaduct and owns the right to get in there. We can’t have a private party telling this Commonwealth when it can exercise its property rights, which is exactly what’s going on here, and that’s why we need this temporary injunction to prevent the defendant from telling the state when it can inspect its viaduct, Butler said.

L’Esperance said that in 22 years, after numerous inspections, the MBTA has not done any maintenance on their bridge, even after several inspections. He also argued that by allowing the MBTA unrestricted access to Meneses’ properties, the court would set a potentially harmful precedent for businesses.

“We know they’re going to do the bridge job. We want to assist them with that, but it’s not fair for them to portray this as some sort of arm-twisting event. What’s happened is that over 22 years, they haven’t cooperated. They’ve come for inspections, looked at things and walked away and done zero maintenance. There are beams rotting,” L’Esperance said. “It’s not an emergency. We can work our schedule, we shouldn’t have an injunction hanging over our head. We can work it out where we designate a person to work with the MBTA […] with the public interest, this sets a precedent with other people. The MBTA is a mess.”

Essex Superior Court Judge Elizabeth Dunigan concluded the hearing by saying that she would make a decision on the injunction later in the day. As of press time Thursday evening, Dunigan’s decision on the injunction had not appeared in state court records.

After the hearing, L’Esperance said that he wanted to show the MBTA’s negligence in maintaining its properties, and the danger associated with it.

“We’re just showing that the MBTA is negligent; that they haven’t maintained anything, and the whole system’s a mess. And this is dangerous. This is a very dangerous situation,” he said.

MBTA spokesman Joe Pesaturo said the agency would not comment on the case.

Anthony Cammalleri can be reached at [email protected]

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