Berm, drainage prompt sign protest

Recorder/Paul Franz
Michael Killeen of South Deerfield is frustrated with the State over storm water issues with his property on Rt 116 at Sugarloaf St. He was required to remove most  of a berm that protected his property but was locatedd on State land.

Recorder/Paul Franz Michael Killeen of South Deerfield is frustrated with the State over storm water issues with his property on Rt 116 at Sugarloaf St. He was required to remove most of a berm that protected his property but was locatedd on State land.

DEERFIELD — A Deerfield man who placed a large sign protesting the state Department of Transportation at his home off Route 116 has no intention of removing it.

“I was hoping everyone would read it and MassDOT would fix the road or give me a permit for the berm,” said Michael Killeen of 112 Sunderland Road.

The large white sign, held up on the back of a rusty truck with scaffolding, has been up for 10 days so far. It reads “MassDOT is flooding my property and is violating the FOIA.” FOIA stands for Freedom of Information Act. The sign is visible at the intersection of Route 116, the state highway and Sugarloaf Street.

Killeen’s decision to place the sign on his property followed 10 months of meetings and one court hearing about a berm of soil he placed in his front yard while building a new garage foundation.

Killeen removed the earthen berm last week before erecting the sign after the state Superior Court gave him 60 days to get rid of it because it was technically on a state highway right of way.

In November 2012, Killeen excavated 1,800 cubic yards of soil in his backyard for a new driveway and a two-story garage foundation.

Killeen stored the soil in a large pile in his front yard along Route 116 to save for backfill for the foundation. The pile grew to about 20 feet wide and 150 feet long on the southbound side of Route 116.

A month later, Killeen received a letter from the District 2 office of the state Department of Transportation in Northampton asking him to remove the berm.

“I planned on leaving it there until I was done with the garage foundation,” Killeen said. “They labelled it a berm. Up until then, it was just backfill for the garage foundation.”

Part of the conflict is caused by where the state property line falls.

According to court documents, MassDOT, represented by William O’Neil from the Attorney General’s Office, argues that the “unauthorized earthen berm” sat on the state highway right of way, which extends 30 feet beyond the curb into what looks like Killeen’s front yard.

“The unauthorized berm constitutes a public safety hazard at that intersection and a trespass on the state highway layout area,” O’Neil argued.

To complicate matters, after he erected the berm, Killeen noticed that the berm prevented water runoff from flooding his basement, flowing down Sugarloaf Extension into a catch basin onto his neighbors’ property.

The water runoff has plagued Killeen’s property since the fall of 2008 when the state repaved Route 116, Killeen claimed. Killeen has owned the property since 2005.

During the spring and fall of 2008, MassDOT resurfaced the roadway on Route 116 in South Deerfield and Whately from River Road to the intersection of Routes 5 and 10.

“During heavy rain, my front yard fills with water. And the 200-year-old fieldstone foundation had water pouring into it,” said Killeen in court documents. “On two occasions, water was coming into the basement so fast I feared the foundation would wash away from the house.”

The storm drain on Sugarloaf Extension also began failing and flooding after the 2008 road resurfacing, Killeen said.

Killeen discovered part of the flooding problem was the 1.38-inch curb was not raised when the road was resurfaced.

Over the course of the next eight months, Killeen and engineers at the MassDOT District 2 office, which covers Franklin County, had several communications about these issues, according to court documents.

The state argued that Killeen failed to remove the berm after repeated conversations and requests to do so in four separate letters from December to March.

Despite Killeen’s reassurances that the berm would be removed, it had not been removed as of June and continued to present ongoing safety and trespass issues, the state argued.

The safety issues are that the berm hinders drivers’ lines of sight on Route 116, the state said.

Killeen, on the other hand, said he repeatedly attempted to contact MassDOT, but his calls weren’t returned, or his questions in person at the Northampton office were disregarded.

Though he was told he did not have a permit for the berm, Killeen said he attempted to get a permit but was continually blocked or ignored.

Killeen wanted to know if he removed the berm whether the water problems would be fixed. The berm, he said, solves the water runoff problem and if allowed to stay could be smoothed off with grass to improve the aesthetics. He said at first state engineers told him they would fix the drainage problem, but later they recanted on their promise.

State transportation spokesman had not returned calls to the Boston office at press time Wednesday.

On June 3, Killeen had to appear in state Superior Court, where a judge ordered him to remove the berm in 60 days.

Meanwhile, to argue his case, Killeen had filed a public records request from the state for information and maps detailing the road resurfacing and property lines. But Killeen said he has yet to receive the documents 10 days after his request — the deadline for a public agency to respond to an information request. As a result, Killeen references a “freedom of information” violation on his sign, although technically the Freedom of Information Act pertains to federal government records and Killeen was invoking the state Public Records Law.

When the 60 days were up, Killeen removed the berm and put the large sign up on his property instead.

“If it starts raining again, I’ll have to get the water out of my basement,” Killeen said. “The sign is getting the attention I wanted it to. I’m not going to give up.”

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