Barnstable County votes to join amicus brief in Concord v. Rasmussen road-discontinuance appeal

Barnstable County Commissioners on April 9 voted to sign onto an amicus brief asking the Massachusetts Supreme Judicial Court to review a Land Court ruling in Town of Concord v. Rasmussen (SJC 13721) and clarify whether public rights survive historic road discontinuances.

The commissioners approved a motion to support the brief after attorneys and local conservation representatives described the statewide implications. “We believe that this case ... will have effect on discontinued ways throughout the Commonwealth, including some in Barnstable County,” said Gwen King, an attorney representing landowners in the appeal. King told the board the case turns on language in the 1924 version of Chapter 82, Section 32a, under which county commissioners had authority to discontinue ways and adjudicate them private.

The county’s presenters argued that if the Supreme Judicial Court finds that discontinued ways can retain public rights, title examiners and surveyors would face uncertainty because many early 20th‑century discontinuances were adjudicated private in the records. “These ways were discontinued often because there was a new highway being built, or it had long since been unused,” King said, and reversing the historical understanding “could really open up the doors for further litigation.”

Michael Loch, executive director of the Harwich Conservation Trust, urged the commissioners to join because the ruling could affect protected lands. “I support the position that was articulated by Attorney King, out of concern that these roads that we believed had been eliminated through public discontinuance process have not actually been eliminated … and could potentially open protected lands, or other areas of high ecological significance to development,” Loch said.

Commissioner remarks focused on the potential practical consequences for county land management and conservation. One commissioner said that an adverse decision could “open up a Pandora’s box” for management of public and conservation lands on Cape Cod. After discussion, the board voted to join the amicus brief; the motion passed on a roll call vote with Commissioners Bergstrom, Forrest and Lyons voting aye.

According to meeting remarks, the office of the Town Counsel for North Andover will coordinate the county’s signature on the brief before submission.

Why it matters: The SJC’s ruling could change how title, public access, and land management are treated for roads discontinued under older statutes. County officials said the question affects property records, conservation protections and who has authority to decide improvements or closures of old ways.

What’s next: The case is pending before the Supreme Judicial Court. County staff and North Andover counsel said they will monitor filings and coordinate to file the signed amicus brief.