Lawsuit over Seaport railroad track heads to trial on Monday

The MBTA wants to use Track 61 to test Red Line cars, but the Contos family has other plans in mind

The 1.5-mile stretch of unused train track near the Convention Center. David L. Ryan

It’s a 1.5-mile stretch of unused train track, a seemingly unremarkable vestige of the South Boston waterfront’s industrial history.

But Track 61, as it is sometimes known, is so much more than just an artifact from times long gone. It carries the hopes and dreams of people who want to see light rail service come to the now-booming Seaport. Someday, maybe. In the more immediate future, the MBTA has something else in mind: testing new Red Line cars.

As a result, Track 61 has also become a legal quagmire. Lawyers for the state Department of Transportation have fought in court for two years against the Contos family, which owned the now-closed No Name Restaurant. The family owns a property that Track 61 crosses, as well as an adjacent parcel.

It’s the sort of battle that usually leads to a settlement. Not this time. The trial between MassDOT and B&W Second LLC, a family-owned entity managed by Anastasia Contos, begins on Monday in Land Court.

MassDOT and the MBTA have an easement to use the Contos property near the corner of West First and B streets. B&W claims the easement does not allow for the extensive changes needed to prepare Track 61 for the Red Line tests. B&W wants to build an apartment complex on an adjacent parcel that would extend over the track, supported by a deck and columns. But MassDOT says no way: The easement, officials say, gives the state free rein for any railroad uses across the site.

The Contos name has been in the news lately, after the family suddenly shuttered the iconic waterfront restaurant, the No Name, about a month ago.

The trial will no doubt deal with arcana contained in decades-old documents. But the end result should be of interest to anyone who rides a Red Line car today: An MBTA contractor has orders to build 252 cars, to improve the often-lackluster service on the line, over the next few years. Before the cars go into service, they need to be tested. T spokesman Joe Pesaturo said the agency plans to start using the test track next month — more than a year behind schedule.

So how did we get here? Nick Contos, Anastasia’s father, was an early believer in South Boston’s potential: The restaurateur acquired numerous properties in the 1980s. But public agencies eventually took most of that land via eminent domain, first for the Big Dig project, and later for the sprawling Boston Convention & Exhibition Center.

The fight over these two parcels behind the convention center can be traced to the Big Dig, when the state built the Haul Road for truck traffic, which required moving some Conrail tracks to the Contos property. In a settlement signed in 1991, the Contos family maintained ownership of the land, but agreed to an easement that allowed freight railroad use across the parcel.

Now, it’s up to Land Court Judge Michael Vhay to interpret the specifics of that agreement. Among other things, B&W maintains that the T’s test-track plans are interfering with its ability to develop the site using its air rights there. B&W wants to install foundations for deck columns on the parcel — but the T’s test track operations are in the way.

MassDOT and the MBTA, meanwhile, argue that B&W’s demands to put up permanent structures on much of the parcel represent a “naked effort to take back rights” for which the Contos family was paid $780,000 almost three decades ago.

Pesaturo said the track will be needed for testing through 2024. But the T has also been directed to reexamine its rail assets, to study new ways to improve regional mobility. Track 61 is an obvious target; it runs from outside Andrew Square into the Seaport and ends near the marine industrial park, cutting through what is now some of the hottest real estate in the city. Some transit advocates see the revival of the track as a first step toward passenger use.

For that vision to be realized, this dispute needs to be resolved. If nothing else, the legal fight underscores just how valuable real estate in the old industrial side of South Boston has become since Nick Contos first started investing in it — a place where even the rights to develop the air can spark a war.

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