Update, 2:30 p.m. on May 23: An Essex County judge denied on Friday an attempt to delay the start of work on paving the Haggetts Pond trail, clearing the way for the Town of Andover to begin phase one of the controversial project.
Essex County Superior Court Judge Jeffrey Karp transmitted notice he had denied a request by 12 Andover residents who sued the Town last month for a preliminary injunction to halt work until the litigation is settled. A written opinion will follow.
While the lawsuit can still move forward, one of the plaintiffs in the lawsuit suggested the fight was over in a post on the Friends of Haggetts pond Facebook page.
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“Thank you to all who have fought hard for two years to try to find a way to have accessibility without the senseless destruction of a wetland habitat,” Rosemary Halloran wrote. “This weekend is Memorial Day. Try to get on the trail and enjoy it and build one last memory.”
The Town said it closed a 0.6-mile stretch of the mile-long Haggetts Pond Trail Thursday to begin paving work, one day after Karp heard arguments from residents looking to block the controversial project with a temporary injunction.
The parking lot and trailhead on Haggetts Pond road are closed. The trail is still accessible from High Plain Road to the new lookout point, where the work is being performed. The remainder of the trail, from High Plain Road to the lookout point, would be paved in a subsequent phase of the project.
Andover Town Counsel Douglas Heim said Friday the town began the work before Karp issued his ruling because it needs to expend funds from a MassTrails grant it received for the project by June 30. Heim said he made it clear in Wednesday’s hearing that Andover was facing a tight deadline, and the court said the town should commence work.
“If Courts automatically granted injunction requests, you can imagine how easy it would be to abuse the process by filing last minute legal actions,” Heim said. “Everyone should be able to agree, for example, that any project reliant on grant funds shouldn’t be effectively blocked because an unmeritorious claim is filed just as work is about to commence and time runs out to utilize a grant.”
Heim’s complete statement to Andover News is published at the bottom of this article.
“While the Court could in theory tell us to stop all further work or even reverse some of it, the judge expressed skepticism that Plaintiffs were at risk of truly irreparable harms earlier in the hearing and informed the parties the Town should proceed,” Heim said. “This is not synonymous with deciding the case or even the motion for an injunction on its merits in full. Rather it is a recognition that the Town has all the permits we need unless to complete the Project, time is of the essence, and it is the Plaintiffs burden to prove to the Court that the Project should be halted before the case is fully litigated.”
Andover Town Counsel Douglas Heim’s statement on Haggetts Pond paving project
In short, unless and until a preliminary injunction is granted by a Court, a party is not prevented from proceeding with a given action or project, in this case the Haggetts Pond Rail Trail Improvement Project. To make sure everyone was clear on this point, I noted to the Court on Wednesday that the Town was ready to start Project immediately and needed to expend the grant funds before June 30th or lose the grant. The Court was very clear in stating that we should commence and not wait until the Court has time to render the decision.
To provide a little more depth, when abutters or a resident group appeals an Order of Conditions from a conservation commission (the “permit” which allows a project to proceed in a wetlands area), the applicant cannot proceed under the Wetlands Protection Act until the appeal is resolved. In fact, an applicant cannot proceed until the appeal period on the resolution of the appeal expires. Hence, once the Friends of Haggetts Pond appealed the Order of Conditions back in October of 2024, the Town had to wait (regardless of whether or not the Friends’ claims were meritorious) until MassDEP issued a Superseding Order of Conditions permitting the Project to proceed on April 17, 2025 plus ten business days to allow the Friends further appeal within the MassDEP process. They did not appeal further.
The Plaintiffs most recent legal action doesn’t work the same way. In this iteration they are not further contesting whether the Project as permitted is allowable under the Wetland Protection Act or our local bylaw. In the current case they are claiming that the use of the land for a trail, past, present or future, paved or not, is not allowed unless and until the State Legislature and Executive Office of Environmental Affairs approves it as a “change of use” under Art. 97. The Town disagrees, but in any case, this type of action does not prevent the Town from proceeding. Unless and until the Court takes the extraordinary step of granting an injunction before the merits of the case are decided the Town can proceed.
If Courts automatically granted injunction requests, you can imagine how easy it would be to abuse the process by filing last minute legal actions. Everyone should be able to agree for example that any project reliant on grant funds shouldn’t be effectively blocked because an unmeritorious claim is filed just as work is about to commence and time runs out to utilize a grant.
The Town expects to prevail on the motion, but appreciates the Court will carefully process the written and oral arguments of the Plaintiffs and the Town before it will render a decision. For this reason we exercised care to let the Court know that given the timing of Plaintiffs decision to file this action and the impending expiration of the grant, we cannot wait to start before a decision is rendered which often takes weeks or even months. While the Court could in theory tell us to stop all further work or even reverse some of it, the judge expressed skepticism that Plaintiffs were at risk of truly irreparable harms earlier in the hearing and informed the parties the Town should proceed. This is not synonymous with deciding the case or even the motion for an injunction on its merits in full. Rather it is a recognition that the Town has all the permits we need unless to complete the Project, time is of the essence, and it is the Plaintiffs burden to prove to the Court that the Project should be halted before the case is fully litigated.