BOS overrules ConCom; will pursue co-holding Conservation Restriction with SVT

by beth on February 1, 2018

Post image for BOS overrules ConCom; will pursue co-holding Conservation Restriction with SVT

Above: Town officials will pursue working with Sudbury Valley Trustees on a primary/secondary co-holding of the CR for the Town-owned golf course. (photo by Alan Bezanson)

On Tuesday, I shared that the Conservation Commission rejected co-holding the Conservation Restriction on the St. Mark’s Golf Course. At the time, I wrote that the Board of Selectmen would need to come up with a new plan. Apparently, I was wrong.

It appears that ConCom’s vote was advisory. 3-2 selectmen decided that the commission was “very qualified” to be a co-holder, even if not qualified to make the decision on being one.

The majority of selectmen indicated that they were trusting the advice of counsel. Town Counsel Aldo Cipriano stood by his assertion that the best protection for the Town, public safety building, golf course and special property was for the Town to co-hold the CR.  

Cipriano told the board that the reasons he had heard for ConCom not holding the CR were, to him, “just excuses”. He acknowledged that co-holding isn’t what is usually done. But he followed that the Town’s land deal was unprecedented. He argued that the property’s CR would be the “new standard”.

Luke Legere, the Town’s special counsel on environmental law, told selectmen that the co-holders of the CR should be redefined as primary and secondary. He said it was in keeping with recent decisions by the Mass Office of Environmental and Executive Affairs (EEA).

Legere explained that the primary role is usually the qualified land trust, like Sudbury Valley Trustees. He advised EEA was unlikely to allow a Town to be the primary co-holder.

According to Legere, if ConCom was a secondary co-holder, it would essentially only have power to comment on what it would like to see done. The primary holder would have the authority to make decisions. The secondary co-holder only has the power to act if the primary co-holder fails to do its job enforcing the CR.

Cipriano didn’t outright disagree with Legere. But he made clear that he would work to give as much control of the land to the Town as possible.

He told selectmen they could decide who they want to be the primary co-holder. If they choose to make ConCom the primary, Cipriano would push the land trust and EEA to try to get that done. If ConCom is the secondary, he would negotiate the Memorandum of Understanding with the primary to define the Town’s authority. 

The minority votes against the decision were cast by selectmen Lisa Braccio and Brian Shea. They stated they were averse to disregarding the commission’s 6-1 vote. Braccio supported an alternate plan discussed in the meeting which would have involved ConCom, but not as co-holder.

Cipriano had presented an idea which he credited as originating from a suggestion by Planning Board Member Meme Luttrell. Although the board couldn’t “convey” the land to the commission, it was able to transfer to it “care, control, and custody” of the parcel. Legere advised that it could work essentially the same to a secondary co-hold.

According to Legere, the roles would be switched, with Con-Com acting as the “grantee”. The commission would still be involved and able to officially communicate its wishes to the CR holder. 

Although Cipriano shared that alternative, it wasn’t his preferred course of action. The Town Counsel argued for the Town obtaining as much control of the land as possible.

Selectman Brian Shifrin told the public the board wasn’t ignoring their input. He said those who attended meetings and sent in letters “were heard”. But, in the end, he wasn’t swayed to go against advice of counsel. He followed that selectmen giving up care, control, and custody made him “more uncomfortable”. He argued that all Town-owned property should be in control and care of selectmen.

The board took time to go through the CR draft in detail, giving counsel specific edits. Cipriano asked if counsel also needed to attend the weekly meetings that the ad hoc Golf Course Conservation Restriction Committee indicated it would be holding.

Chair Dan Kolenda opined there was no need. No one disagreed. Shifrin explained that he had only voted to extend the committee to allow it to comment on the CR before the board votes on it.

Following the co-hold vote, Chair Dan Kolenda wondered if the board should investigate other land trust options beyond SVT. That was echoed by Shifrin.

Braccio reminded that the board wanted a land trust with footing in town, as SVT has. Selectwoman Bonnie Phaneuf expressed confidence in SVT and argued against unnecessary delays. Desire to move quicker was echoed by Cipriano. The board unanimously opted to move forward on working with SVT.

The board didn’t vote to designate primary vs secondary co-holder roles for the CR.

{ 10 comments… read them below or add one }

1 David Parry February 1, 2018 at 2:59 PM

Sadly, our Selectmen have voted to ignore the opinion of ALL involved (four) , town, EXPERT committees …. plus the opinion of the town’s own, special , EXPERT counsel, who WE are paying for. …. Yet his legal advice is being blantantly ignored.

What we have here, is a clear demonstration of “our” town counsel, once again , giving his personal, POLITICAL opinions, not legal opinions. In fact he has become something of a permanent, political fixture, of 20 years … Perhaps too permanent. In fact, perhaps it’s high time for a change.

Consideration should be given to taking this matter of the CR to Town Meeting.

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2 Lucy February 6, 2018 at 9:05 AM

We hire special counsel and an expert to go against his recommendation for Aldo?

I don’t know all the details here, but I’d say it’s time for a change to get away from Aldo and his opinion too. Look at the mess he’s created on other large projects in town by providing opinion and not law. I’d hope the rest of the voters are seeing a pattern with him.

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3 concerned_golfer February 8, 2018 at 9:47 AM

David, Lucy

I wholeheartedly agree with your opinions. Our Town Counsel routinely injects his unqualified opinion in matters and issues that are way outside his area of expertise (now what area is that again?). We sheeple are like Dory the fish. Short term memory problems; can’t seem to grasp complicated stuff like “do we want to GUARANTEE a large parcel of land like the St Mark’s GC remain undeveloped” or not? Having SB BOS be the holder of primary holder of conservation land rights is a big deal, lots of obstacles are removed by being the holder if you later propose to reverse the Conservation Restriction (CR) status for some pet project.

Rummage through the dense law at Mass Gen Laws c.184 secs 30-33.

Section 31 states “A conservation restriction means a right …. appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming or forest use, to permit public recreational use”

Secion 32 states, in part, “… The restriction may be released, in whole or in part, by the holder for consideration, if any, as the holder may determine, in the same manner as the holder may dispose of land or other interests in land, but only after a public hearing ..”

So whether the SB BOS has co-CR holder status is probably irrelevant as it still would require a public hearing as to whether the CR is reversed. Still why should BOS have this status? Conservation Committees are established to be experts in such matters which extend way past legal holder rights issues.

Aldo, step down or BOS move him aside. We need fresh legal analysis not your ‘personal opinions”.

Also sheeple, lets keep the entire negotiations narrative in our collective memory.
What led us to this point will impact what we do (or is done to us) in the future.
Do you want open fields in the center of town or not???? make you opinions known (not you Aldo)
http://www.mysouthborough.com/2017/03/03/selectmen-adding-cr-to-public-safety-building-article-to-preserve-the-golf-course/

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4 Deborah Costine February 2, 2018 at 2:10 PM

The town cannot legally hold a Conservation Restriction on its own property. Yet, the Board of Selectmen are adamant that the Conservation Commission do so. (even if it must be co-held to meet legal requirements) The BOS has just shown that it can and will override the Con Com’s decisions, thereby ultimately giving themselves that authority to determine if the terms of the CR are being upheld. The obvious way to protect the terms of a CR is to have it held by an expert, independent Land Trust for the least amount of potential meddling.

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5 Publius February 6, 2018 at 10:16 PM

Co-holding seems like a good strategy to protect town interests when the future is unknown.

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6 YY February 7, 2018 at 12:50 AM

At this point, I just hope what the Town’s special counsel on environmental law, Luke Legere, said about state/EEA is “unlikely to allow a Town to be the primary co-holder” carries the day because I really don’t like the situation where our ConCom is the primary co-holder and disagrees with our BOS. In such scenario, ConCom would need consent of BOS to ask Town Consul for advice or employ another consul while BOS is the appointing body of both ConCom and Town Consul…

The only saving grace might be SVT or any other land trust might see the situation being so dire that it feels it has to act because “the primary co-holder fails to do its job enforcing the CR” and sues the town. I suppose worst case might be private citizens (our kids?) suing SVT or any other land trust for gross negligence (for not stepping in) and ConCom for not enforcing CR? That seems like an awfully heavy burden for private citizens so I hope SVT or any other land trust do step if if things are that bad…

I could be convinced that ConCom being secondary co-holder might a good thing but I haven’t heard enough of how BOS would enable ConCom to fulfill that role?

In the end, my impression is if we don’t want to “sue ourselves with our own money” then we either don’t have a CR (which I believe most people want CR and many has said that is how we got the “holy trinity” to get deal through so this is not a real option) or do a damn good job at crafting the CR in first place! I think we should had been putting all this into drafting the CR instead of all this… I think the committee in charge of drafting CR did a great job DESPITE BOS’s effort (I suppose not all of BOS). Guess what? Even if ConCom is primary co-holder, if CR clearly says no (and maybe in multiple different ways to top it off) then I think any secondary co-holder would have to stop town or risk being sued themselves?

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7 Al Hamilton February 8, 2018 at 8:38 AM

There is a reasonable alternative to a CR. That would be a deed restriction, filed the Worcester Registry of Deeds. There are several differences. (Note I am not a lawyer).

First, deed restriction must run to the benefit of an identified group of people or an entity. In this case it could run to the benefit of the Residents of the Town of Southborough. This would give any resident “Standing” to sue if any portion of the terms of the restriction were violated.

Secondly, deed restrictions typically have a term. In Mass, the maximum term is 30 years for deed restrictions on private property (I am not sure if this applies to public property). This differs from a CR which is supposed to be “permanent” (this is a fiction).

Like a CR, both identify permitted and prohibited uses of the land.

I believe there is great merit in reviewing the status and use of open space parcels on a regular but generational basis (10 to 30 years). I believe it is arrogant and presumptive to assume that we will know better than future generations what the best use of a property is 15 to 30 years hence. I have faith that future generations will be at least as wise as we are and are in the best position to make decisions for themselves.

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8 beth February 8, 2018 at 9:57 AM

Al,

Respectfully, I see it differently. It’s not about which voters have more wisdom – past, present, or future. It’s about the size of voter factions.

There is a reason that the Town agreed to add the CR. Without it, preservationists didn’t trust what Town officials or voters would do with the land once it was purchased. They are part of the contingent that got the article approved. If they had believed the article wouldn’t preserve the land, enough may have voted against it (in hopes of finding a better way) to doom the article.

(We’ll never really know what the vote outcome would have been. But that is certainly the impression that led to the compromise reached.)

It’s reasonable to think that land, once it is owned by the Town, is viewed differently by voters than when evaluating whether or not to purchase.

When evaluating a potential project on the site (like a community center or athletic fields) most would only look at the cost of the project itself not the additional (now sunk) land purchase cost. People might vote for doing something on the land who wouldn’t have voted to buy that land for the project. That could be the difference between an article passing or failing.

I’m not taking a position on how the article should have been written. But if voters or Town officials wanted the land decisions in the future to be based on wishes of future voters, the article should have been written accordingly. I believe it wouldn’t be right to undermine the CR after voters supported the Article based on it having the CR.

And, if Town officials did something to so significantly change the article after the fact – it would undermine voter trust. Important future articles could fail because voters don’t believe officials will follow through on the article as written. (Enough already doubt verbal promises made by officials. But most seem to believe they can trust what is in writing.)

[Note: I’m not making claims about what selectmen or Town Counsel are trying to undermine or do. I’m responding specifically to Al’s suggestion of enacting a termed deed restriction instead of a CR and the concept of finding some way to allow future voters to make the decision.]

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9 Al Hamilton February 8, 2018 at 12:44 PM

Beth

Again, I am not a lawyer, but, I believe a deed restriction would constitute an interest in real property and would require a 2/3 vote at Town Meeting. So, if I am correct, the issue of the will of the voters is moot. One Town Meeting cannot bind another and what one Town Meeting does, another can undo. My suggestion merely allows the will of the current voters to be expressed, from time to time as opposed to being locked down for “all time”. A vigorous debate from time to time is a good thing.

Further, a CR, is not a guarantee of perpetual protection can be reversed a number of ways:

1. What Town Meeting and the Legislature do, they can undo. If, for example, next year there is an up-welling of support to put a cricket pitch on the parcel, overwhelmingly supported by Town Meeting and the BOS they could petition the state legislature to Modify the CR or eliminate it all together by a special act (similar to what we had to do to make the deal with St. Marks legal). Our state reps, not wanting to offend the cricket mad populace of town would support and the matter could pass. All my proposal does is take the State out of the equation and actually makes it more difficult since each resident now has an interest in the property potentially could seek an injunction to halt the cricket pitch.

2. If at some future date, the State wants to make use of the parcel it can do so at the whim of the legislature and Governor. My proposal may make this more difficult because, each resident has an interest in the property and the state would have to take each interest.

3. The Federal Government could do the same.

4. Certain Interstate Utilities (Railroads, Pipelines, Power Transmission, Data) have Federally granted eminent domain rights. Neither The Town of Southborough, nor the Commonwealth of Mass could prevent one of these companies from running a pipeline through the property or running Power Line over the land. The same argument applies about having to condemn more interests.

All of this is, of course, purely academic. The town is not going to even consider alternatives.

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10 n February 8, 2018 at 3:28 PM

Let’s appreciate that the powers that be have already expended significant effort and tax payer money protecting ourselves from our future selves.

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