TYNGSBORO -- A Tyngsboro homeowner, Sam Herr, announced yesterday that he has filed a lawsuit against the town's Conservation Commission for allowing hunting on Shady Glade, a 71-acre parcel behind his home that was donated by developer Walter Eriksen, who named it after a popular children's book about a forest sanctuary for animals, Farewell to Shady Glade.
Herr said he filed the legal action in January in Middlesex Superior Court in Woburn, asking the court to enforce the original intent of the deed, dated Dec. 30, 1999, and signed by Eriksen, that included a restriction stating that the land was "to be used for passive recreation only."
Eriksen also built two miles of walking trails on the land before selling it to the town for the ceremonial price of $1, in exchange for being allowed to build a residential development that included houses on Primrose Lane and Black Oak Circle, according to public documents.
Beginning in October 2008, Herr said he and other abutters began to notice hunting activity in Shady Glade and asked the seven-member Conservation Commission and Director Matt Marro about it. Eriksen also wrote a letter to the commission at that time, stating that when he and partner James Harrington deeded the parcel to the town, they did not wish hunting to be permitted.
"Many of the area residents use the trails for early morning walks with their pets, and it seems to me that to encourage use of the walking trails and allow hunting is contradictory," Eriksen wrote in the letter, dated Dec. 31, 2008. "I hope that you will consider permanently banning hunting from this area."
In answer to the questions Herr raised, he was informed by Marro and the commission that hunting was a permitted use at Shady Glade, Herr said.
Marro did not return phone calls seeking comment. Conservation Commissioners are unable to comment on Shady Glade because it is a pending legal matter, member Lucy Gertz said.
According to a resident who attended recent Conservation Commission hearings and asked not to be named, in discussing public recreational uses of Shady Glade the commission decided it was bound by state bylaws that allow hunting on public lands beyond 500 feet from the nearest home.
Herr disputes that there is any state statute that includes hunting in its definition of passive recreation.
Herr also argues that a deed restriction prohibited construction of temporary or permanent structures on Shady Glade. Allowing hunters to build deer stands also violates the deed, he said. His lawsuit was prompted in part by a situation in which a hiker's dog was killed by a hunter in the Lowell-Dracut-Tyngsboro State Forest in 2007, he said.
Eriksen said he no longer wishes to intervene.
"My personal preference would be not to allow hunting on the land," said Eriksen.