Business owner and MBTA battle it out

Somerville resident Francisco Meneses, who owns a row of storefronts under MBTA’s train tracks along Mt. Vernon Street in Lynn, is in the middle of a lawsuit with MBTA. (Spenser Hasak)

SALEM — The Massachusetts Bay Transportation Authority took Lynn’s business owner, Fransisco Meneses, to court Thursday afternoon for refusing to allow the agency unrestricted access to his businesses on Mt. Vernon Street, which is under the Lynn Commuter Rail bridge.

MBTA first filed a complaint on September 12 against Anna P. Cabral, the trustee of the Mount Vernon Street properties owned by the Meneses MBTA, which is located on properties owned by Meneses. The five-count lawsuit, filed on behalf of the agency by attorney Gerard A. Butler Jr., also alleges that Meneses refused to allow the MBTA to enter his properties to make repairs to the viaduct.

MBTA also filed a request for an injunction against Meneses that would bar him from preventing MBTA from entering his businesses to store personal property on the land, which the agency says gives them access to the viaduct ban, and conducting construction work on the viaduct, which the agency says would compromise its structural integrity.

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

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

However, during a hearing in Essex High Court on Thursday afternoon, MBTA alleged that Meneses’ terms on allowing MBTA access to his properties would undermine the agency’s property rights.

“The parties are very much in agreement. Except that the defendant wants a say in when the MBTA comes in and does their inspection, which is wrong. MBTA must step in and exercise its easement rights whenever it deems necessary, because those are easement rights. If one party has an easement on another’s land, the owner of the easement is a dominant estate, the defendant is a servile estate, meaning the defendant must give way to the MBTA,” Butler said.

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

“When we looked at the condition of the bridge, concrete spilled onto the sidewalk. The city came and ordered the MBTA, “Close this right now. We want a framework of plywood concreted to the ground.’ You could look out onto what was supposed to be a concrete sidewalk, you could see the moon, the sun, the sky, and that was shut down immediately. Every five years the MBTA came and inspected it and they really didn’t bother. As a result of not maintaining it,” L’Esperance said. “He wasn’t admitted [to open his businesses] because MBTA would not engage in any negotiations of any kind to enable him to get his permits for renovations or anything else.”

Butler responded briefly to L’Esperance, repeating that MBTA had easement rights over their bridge and did not have to plan their property repairs on Meneses’ schedule.

“The state owns this viaduct and the right to get in there. We cannot have a private party telling this Commonwealth when it can exercise its property rights, which is exactly what is going on here, and so we need this injunction to prevent the accused from telling the state when to inspect his viaduct can,” Butler said.

L’Esperance said that in 22 years after numerous inspections, even after multiple inspections, the MBTA has not performed any maintenance on its bridge. He also argued that the court would set a potentially damaging corporate precedent by granting the MBTA unrestricted access to Menese’s property.

“We know they’re going to take the bridge job. We want to help them, but it’s not fair of them to portray this as some kind of arm twisting. What happened is they didn’t cooperate for over 22 years. They came to inspect, looked at things and left and didn’t do any maintenance. Logs rot there,” said L’Esperance. “It’s not an emergency. We can work our schedule, we shouldn’t have a restraining order over our heads. We can find out where to nominate a person to work with the MBTA […] with the public interest, this sets a precedent with other people. The MBTA is a mess.”

Essex High Court Justice Elizabeth Dunigan closed the hearing by saying she would make a decision on the injunction later in the day. As of Thursday night’s press time, Dunigan’s decision on the restraining order had not appeared in state court records.

After the hearing, L’Esperance said he wanted to show MBTA’s negligence in maintaining its property and the danger it posed.

“We’re just showing that MBTA is lax; that they haven’t maintained anything and the whole system is a mess. And that’s dangerous. It’s 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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