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Home » Cover Story

Homeowners discover they have no legal access

Submitted by on November 30, 2009 – 8:21 am3 Comments

By Noah R. Bombard

For nearly 30 years, Kevin Smith has driven to the end of Whipple Street every day and taken a left into his driveway. There’s nothing particularly peculiar about it. It’s a dead end street and the paved road ends just a few feet past his driveway. What Kevin Smith never knew, however, is that pavement in front of his house wasn’t part of the city’s street. For all this time, he’s been driving over someone else’s property.

Smith’s property is landlocked – a fact he never knew until engineers working on a neighboring housing development showed up at the foot of his driveway a few months back with the startling revelation: what he thought was the city’s road was about to become the backyard for a new duplex.

“As far as we know, we have no legal access to our property at the moment,” Smith says while standing on what looks to be part of the street in front of his home. “Because if the street ends at that post then right now we’re standing on someone’s private property.”

That doesn’t mean the Smith’s are holed up in their home. They continue to drive to the end of the road and into their driveway just as they’ve done for years.

“Nobody has told us we can’t come in and out of our house,” Pat Smith says.

What the Smith’s are worried about is that legally, someone could.

History is a mystery

Just how it happened that a home that’s been in Worcester since 1934 became landlocked has become somewhat of a mystery to Kevin and his wife Pat – as well as anyone else who’s examined their case. City regulations require homes to have street frontage and the Smith’s home, it appears, does not.  No one ever noticed it before because there was no reason to.

Once a private road, Whipple Street used to go right past the house the Smith’s live in. Around 1961, the street was made public. For a reason no one knows, however – perhaps an oversight – the official road ended just before the Smith’s property line. Over time, the end of the road overgrew with trees – except for the little section in front of the Smith’s driveway, which was paved by the city. Water and sewer lines also run through that parcel and onto what is now the backyard of two duplexes being built by Gallo Builders.

Worried about the future

The Smith’s startling revelation came when engineers for Gallo Builders were working on two duplex homes that abut the Smith’s property. The duplexes are part of the Arboretum Village Estates development. The backyard to those duplexes ends at the Smith’s driveway.

Sure, they’re not thrilled with the large duplex that casts its shadow over their home. Who would be? Prior to construction on Arboretum Village Estates, the Smith’s lived on a quiet dead-end street with a yard surrounded by dense woodlands. It was one of those “is this really Worcester?” places that seemed like a different world from the city that surrounded it. But the Smiths say they understand why it’s being developed and that workers from the project have been friendly and considerate. In fact, they don’t really have any gripes with Gallo. And it’s not really Gallo they have to worry about – it’s the homeowners who buy the duplexes abutting the Smith’s property.

Consider a few potential problems the Smiths are concerned about: Aside from driving over someone else’s property to get to and from their home every day, city snow plows they say push all the snow from the street into a giant salt and sand crusted snow bank at the end of the street (into their new neighbor’s back yard); each week the Smith’s put their trash out on what will soon be someone else’s property; and the water and sewer lines to their home actually run well into their new neighbor’s back yard. There are enough issues to make any homeowner worry – not to mention the difficulties created if they ever sell the house.

Solutions

Steven Gallo, president of Gallo Builders says he can sympathize with the Smiths. Gallo is considering several options that will depend mostly on what the city wants to do. The first and best option, says Gallo, is to transfer the land where the road exists to the city. That’s certainly the option the Smith’s say they’d like to see happen. It would give them legal access to their property and would prevent them from having to get a variance from the Zoning Board because their home has no frontage. The concern with that option, Gallo says, is whether or not giving up the land would still give him the 7,000 square feet of land he needs for each duplex. Construction on the two duplexes is already well under way.

Another option would be for the developer to grant an easement to the Smith’s for access to their property. That doesn’t solve the problem of the end of Whipple Street still being private property.

“The basic thing is we’d like to make sure we never ever have any issues of going in and out of this house or this driveway,” Pat Smith says. “Or if we sell the house we never have any issues with selling the house or whoever is going to buy the property is not going to have any issues going in.”

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  • http://who-cester.blogspot.com Tracy

    How many years does something have to be used as a right-of-way to be given that status legally? I was under the impression that if it has been used for X number of years, it is regarded as a legal right-of-way.

  • Noah

    That’s a good question. I could be wrong and I’ll try to look into it, but I think that right of way would be something determined by a court. I know the Smiths are looking to avoid that and it seems at this point that the developer is wanting to do what he can to accomodate them. I think it would be unlikely that a court wouldn’t grant them right of way, but then you’ve still got the issue of that section of Whipple Street (which is paved, plowed and has water and sewer lines) running right onto someone’s property. I’m guessing the developer also would want to sell those duplexes with no strings attached.

  • Isabelle Fontaine

    patti, I’m glad I’m not in your shoes, this is so ridiculous.
    Hope you can finally clear the matter up. Talk to you another time.
    leaving for the cape on 10/5/ with Tom & Mary, Isabelle