By Jon Bishop

AYER -- Along with the Feb. 9 snowstorm came a flare-up in the Depot Square dispute between Phil Berry, the landowner whose property is needed to develop a pedestrian walkway and a vehicular turnaround at the Ayer commuter rail stop, and the MBTA, with officials in Ayer and the state waiting to see an agreement reached.

According to e-mails to the Ayer State Delegation, which were forwarded to The Public Spirit on Feb. 9 from Michael Carr of the office of state Sen. Jamie Eldridge, Town Administrator Robert Pontbriand wrote that Berry "has resurrected the fence/barricade to the train platform without any formal notification to the MBTA or the Town of Ayer."

"The Town, MART, and MBTA are extremely close to a resolution to this issue and for this to happen today is most unfortunate," Pontbriand wrote. "This remains a property issue between MBTA and Mr. Berry," adding that Ayer and MART will continue to work with the MBTA and Berry to resolve this issue. The ultimate resolution, though, "is between the MBTA and Mr. Berry," he wrote.

Carr also forwarded another e-mail that Pontbriand sent to Mark Boyle of the MBTA. In it, Pontbriand said that "absent any formal/legal transfer of the land and access to the Town as well as absent the legal instrument to lift the MBTA eastments, Mr. Berry legally has no right to resurrect that fence which blocks access to the platform.



"Finally, for this to be done with no notice to the MBTA or the Town in the middle of a blizzard is not good faith and frankly irresponsible and reckless for commuter public safety," he wrote.

Pontbriand, who spoke with The Public Spirit on Feb. 11, said that, from Ayer's perspective, what's needed now more than ever is a "definitive solution" so the $4.2 million project can move forward.

Eldridge, on Feb. 9, said that he was "outraged by the recent actions by Mr. Berry to block pedestrian access to the Ayer train station on a day when commuters (were) already having a difficult time with the commuter rail."

He said that though the legislative delegation has not been at any of the recent meetings, he and his colleagues hoped that the parties reach an agreement.

Eldridge also wrote in a Facebook post on the 9th that "given the impact the snowstorms have had on the Fitchburg commuter rail and the train schedule, I am deeply disturbed that Mr. Berry would decide to put up this fence once again, on a day like this, and put commuters at a greater safety risk. Shame."

Board of Selectmen Chairman Chris Hillman, in an e-mail to The Public Spirit on the 9th, said that the disagreement was "most unfortunate." He said that the MBTA and Berry need to continue to hammer out an agreement.

"It is not only a benefit for the MBTA, but for Mr. Berry to have this agreement in place so the convenance is removed from his property for good," he wrote.

Boyle, in an e-mail he sent to Roy Pastor, Berry's attorney, and which Pastor forwarded to The Public Spirit on Tuesday, said that it was "outrageous" that Berry "would choose to block access to the commuter rail station, particularly during blizzard conditions," adding that it is "a public safety hazard" for which he would be held responsible.

"Please instruct your client to remove the barriers ASAP or the MBTA will be forced to take its own action," he wrote.

Boyle wrote that "this action does not foster a successful resolution of the permanent access agreement we've all been working diligently to resolve."

"By this and recent actions, it appears your client is not sincere in wanting to reach that permanent solution," he wrote.

Pastor, in comments on Feb. 9 and 10, said the fence, which he said exists to keep out cars and is not chained to anything, had been there for a week, and people only noticed it because of the snow.

"So it's been a snow issue," he said. "He's had trouble keeping the snow out of there."

Commuters, because of the snow, were parking on Berry's property, Pastor said. Berry kept the entrance to the platform, which will serve as the new entrance, but the old entrance got "completely hemmed in with snow."

Pastor said that "it's been a nasty week with snow."

Thus Berry had the option of towing the cars or dealing with the snow later, Pastor said.

In an e-mail to Mark Boyle, which was CCed to Pontbriand, Rep. Sheila Harrington and Eldridge, and which Pastor forwarded to The Public Spirit, Pastor wrote that "because the town has had difficulty keeping the streets and sidewalks clear of snow, many of the rail commuters have illegally parked in Mr. Berry's parking lot."

"The situation has made it very difficult to keep the parking lot clear of snow," he wrote.

He wrote that Berry had to "choose between towing the commuters' cars" or keep up with the snow, and so, "as a compromise, Mr. Berry kept clear of snow the access to the commuter rail on the path which we substantially agreed on."

"He was able to do this because no cars parked in that area," he wrote." Mr. Berry has had heavy equipment removing snow last night and the remainder of the snow should be removed sometime (Tuesday)."

Pastor wrote that "this situation has been in effect for the past five or six days."

"If anyone has been irresponsible in this matter, it is yourself (Boyle), Senator Eldridge, and others who have fueled an already delicate situation with innuendo, gossip, political posturing, and petty agendas," he wrote.

Pastor said that since there is more snow coming, he "informed Mr. Berry that he would be within his rights to enforce a no parking ban in the parking lot and have the commuter cars towed."

"In that way, he will be in a better position to keep any and all entrances clear of snow," he wrote.

On the negotiation process, Pastor said that he has invited the parties to come back to the site once the snow clears. Then, they'll chalk out the split with the engineer, he said.

On Feb. 17, Pastor said that last Wednesday, Feb. 11, the MBTA helped clear snow from the property.

They brought in a "giant piece of equipment and they cleared some of the snow over there," he said.

Senator Eldridge, who also confirmed that the MBTA helped clear snow, said Feb. 17 via e-mail that he plans "to stop by downtown Ayer this week to view the access, and I continue to be hopeful that the negotiations between the Town of Ayer, Mr. Berry, and the MBTA will lead to an agreement over the transfer of Mr. Berry's property."

Jeremy Callahan of the Ayer Train Station Advisory Committee, or the ATSAC, said on Feb. 17 that he and the rest of the committee were "all appreciative that the MBTA did that."

In addition, "we were pretty shocked that (Berry) put that fence back into place," he said.

The MBTA did not return repeated requests for comment.

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