Barn Hollow open space issues still need working through

by Beth Melo on January 8, 2014

Post image for Barn Hollow open space issues still need working through

Right: Site plan of the Barn Hollow neighborhood and bordering open space as illustrated on developer Brendon Properties’ website. Click here for larger image.)

Last week I shared the Metrowest Daily News’ report that the Barn Hollow open space compromise hit a roadblock.

Monday night, the Planning Board discussed the developer’s new proposal. The only real consensus in the room was that it needed more work.

Selectman John Rooney told the board that he wasn’t satisfied that the new proposal accomplished the same as the original.

Rooney said that he had promised the town that the compromise wouldn’t have any losers. He believes this new version might end with multiple losers.

In December, Brendon Homes developer Kevin Giblin informed the Planning Board that he is not be able to donate enough land to the town to replace the disputed open space as originally intended. His recent land survey revealed the parcel previously estimated at 1.5 acres to be 4 acres.

In a follow up letter to the board outlining his new proposal, Giblin upped that figure, proposing 5.07 acres be deeded to Barn Hollow land owners.

Giblin proposes that 2. 5 acres of open space from the land would be deeded to the town, and the 5.07 acres have a “no cut, no build” restriction. That would allow mowing, just not cutting down of trees (which apparently aren’t there to cut anyway.)

Planning Board member Phil Jenks considered taking the deal in order to move on and put this behind them. But he warned the decision would bring a lot of PR heat from people who don’t have all the facts. Member Paul Cimino didn’t dismiss the possibility of accepting the proposal. But he wanted to consider alternatives.

Cimino said that over the course of 10 years a lot of unfortunate things happened that led to this problem. He believes they need to fully address the underlying issues to convince the town this could never happen again before putting “a final stamp”on a compromise agreement.

Chair Don Morris solicited Rooney’s stance. He said that since Rooney had put himself on the line by advocating a compromise at Special Town Meeting, he should have the lead with this for now.

Rooney stressed that while he was trying to help residents in Barn Hollow, his bottom line was that he needs to protect the town. He said under the new proposal it appears the town would lose approximately 5 acres of open space. He couldn’t support that.

Open Space Preservation Commission member Meme Luttrell had strong objections to the proposal. She argued that the restricted land would not meet open space criteria. “A yard is not the same thing as open space,” she maintained. Planning Board members Cimino and Jenks questioned that. They pointed out that many open spaces are mowed.

Luttrell explained that Open Space must meet one of the following criteria: recreation or land left in its natural state. She pointed out that developers are given special concessions in exchange for the promised open space. Private lawns were never meant to be included in that definition.

Meanwhile, a resident of Barn Hollow objected to the proposal from the other side of the argument. He was unhappy that he wouldn’t receive back land that could be fenced in (under no build restrictions). He claimed that he and other neighbors would essentially be losing about half their yards. 

Another Barn Hollow resident questioned the jump from 1.5 to 5.07 acres (and ensuing issues). He said that neighborhood residents are only interested in the disputed boundaries in their yards. He wondered why other land was suddenly being included in the compromise.

Luttrell explained that OSPC wouldn’t accept “dots and dashes” of broken open space. Cimino disagreed with that description and was interested in taking a better look at the land in question.

Jenks pressed OSPC for their recommendation. Member Freddie Gillesppie suggested that the equitable swap of 4 acres was a possible solution. She said that prior to Special Town Meeting, she told Giblin at a Planning Board meeting that she believed the disputed parcel to be closer to 4 acres. She claims that he responded he would swap 1:1.

Giblin wasn’t able to attend. The developer was represented by his son, Brendon Giblin also of Brendon Homes, who read the letter to the board.

1 SB Resident January 8, 2014 at 12:33 PM

I would argue against Mr Rooneys point that the loss of 5 acres of open space is too much too lose for the town. We essentially haven’t had these 5 acres (or the original 1.5, with dots and dash) for the past 10 years and no one missed it. Getting the other 1.5 now matter where it is, is better than the nothing we essentially have now.

If the answer to the 1.5 to 5.07 question really is a matter or dots and dashes, the OSPC needs to get over itself and accept the original compromise.

Lastly, I don’t even have words for the resident complaining that he wants to put a fence around a yard that he never bought. He made a huge mistake in not understanding the property lines that he was buying and should be grateful for any offered compromise.

2 beth January 8, 2014 at 2:31 PM

You may have misunderstood the new proposal. You wrote, “Getting the other 1.5 now matter where it is, is better than the nothing we essentially have now.”

To clarify, Giblin’s new proposal replaces the old one. It no longer mentions gifting the town with 1.5 acres of land (or any other amount).

Instead, he would take the land (currently still owned by him) and instead of turning over the full open space promised to the town, turn part of that over to the individual property owners, with restrictions.

His long standing claim is that it is better for the town to have that land be taxable property. The other supposed win is that it is still preserved as open green space due to no build restrictions. Meanwhile the neighborhood should be happy that they can keep the yard space mowed.

3 beth January 8, 2014 at 8:32 PM

Someone pointed out that part of my statement above is misleading. As stated in the article, Giblin is giving something to the town in the proposal – 2 out of the 7 acres of land in that area.

What I meant to say is that he isn’t proposing to replace the other 5.07 acres (originally) meant to go with it with 1.5 acres elsewhere. I believed that SB Resident was under the impression that he was still planning on giving another parcel elsewhere in town.

4 Nora England January 8, 2014 at 8:38 PM

There was a comment 2 months ago in this forum, it says
” There is already a Restrictive Covenant dated January 2, 2003  book 28606 page 337 which stated what restricted and what permitted in the open space. The covenant is for 30 years and for the benefits of the all the lots of barn hollow and to the rights of the town. It will not do any good for the homeowners to have deeds for the encroachments, because they have to follow the restrictive covenant and keep it in its natural state. No mowing, no landscaping, no building of any sort on it. It doesn’t make a difference, if the town accept the open space or not.”

If this is true, all compromises will be a waste of time. People need to know the facts without the odd arguments. We need more info on this covenant.

5 SB Resident January 9, 2014 at 2:00 PM

Yes, I was a bit unclear. I’m of the opinion that we should do what it takes to stick with the original compromise. I’m still unclear on who or what happened to cause it to be canceled, but my comment was trying to imply that it should still be on the table. Giblin’s new proposal seems as if we went back to the drawing board and everyone is just arguing the cons to their side as we scramble to renegotiate. All this seems like a waste of time when a compromised was already once reached. If something changed about the original compromise we should solve whatever the problem is rather than starting from scratch.

Also I apologize for not understanding any nuances involved in my fence comment. I admit I don’t understand any particulars. I’m just with the others that during the buying process, the lot lines are very well described and outside of a few yards or so there aren’t any excuses for giant discrepancies.

Lastly, to address Mr Cimino’s comment, I agree that it’s obvious that problems occurred at the town level and they need to be solved, but suggesting that we should hold this issue hostage while we get our house in order is simply, silly.

6 Barn Hollow Resident January 8, 2014 at 9:50 PM

Actually the point the Barn Hollow resident made at the meeting did not affect his yard, it affected a neighbor’s yard. He was not complaining, he was commenting on the new proposal put forth by the developer. The original compromise proposal was a land swap that would allow that neighbor to return his fence to its original location. The new compromise would not allow that.

In regards to Barn Hollow residents making huge mistakes in not understanding the property lines, both the city and the developer have recognized the part they have played in this situation. It would be nice if it was as simple as “the homeowner should have known their property lines”. Unfortunately it is much more nuanced than this.

7 Mark Ford January 9, 2014 at 8:55 AM

Hello Barn Hollow Resident,

Could you please explain the nuances, then? In particular, what part the town played in this situation…

When we bought our modest home in Southborough, we didn’t want to spend the money for a formal survey. We did take a very close look at the lot plan, and marched it off, to get a good idea of our borders. We abut conservation land and I paid particular attention to that line, so I’d understand where our property ended. I’d hope that if I were buying an expensive property, with newly defined covenants and restrictions, I’d have it independently surveyed to protect my interests.

In any event, I do hope that an appropriate solution can be found, though I’d have to be convinced that anything short of a 1:1 land swap for a comparably valued land parcel–or some combination of land and $$–benefits the town.

8 Barn Hollow Resident January 15, 2014 at 10:05 PM

Hi Mark,

When we bought our house the yard had been completely landscaped, irrigated, and fenced by the developer. We asked on three occasions to have the lot staked, but they said they could not find the markers. We were told that it consisted of the landscaped area. Unfortunately much of this actually turns out to be in the open space (including part of the fence). Thankfully our fence was not a big issue as it was only a few feet into OS and was moved. Many of our neighbors situations happened in a similar fashion to our own.

The city provided all inspections throughout the building process, and provided the certificate of occupancy despite the encroachments on the open space. In addition, actual lot markers were not installed until late spring/early summer of 2013….12 years after the subdivision was started.

The outcome of this is that OS and the PB are working diligently to implement a process which will prevent similar situations from happening in the future. I am certainly not fully up to speed on it, but I do know that the process requires all open space to be fenced off with orange construction fencing, and is inspected to verify compliance prior to construction commencing, and when construction is completed. Lots also must be permanently marked. Perhaps someone from OS or the PB could outline the basics of the process.

All of the homeowners in Barn Hollow understand the opposition from some of our fellow towns people. If we did not live in Barn Hollow and know the complete back story, I am sure many of us would feel the same way. However the fact remains that these homes were marketed and sold with landscaped yards that violated OS, and the city allowed and approved it. How do you approve it for the developer, and then disapprove it for the homeowner? It is not an easy issue, but everyone is working to find a solution whereby there are no losers. I hope this is possible.

9 Mark Ford January 16, 2014 at 1:38 PM

Thank you very much for the explanation. It is perhaps more nuanced than I imagined.How could the developer been so negligent? Best of luck, and I hope this does work out to everyone’s satisfaction…or to the least mutually disagreeable solution.

10 Just Curious January 16, 2014 at 7:14 PM

Barn Hollow Resident,

Thank you for this explanation. It really helped me understand it a lot. Of course the cynic in me wonders why the developer was able to, well, do what he did, and not be held accountable.

11 Nora England January 19, 2014 at 9:19 AM

Greetings Barn Hollow Resident
You give an impression that your house and other houses were built 12 years ago and it was an old story. In fact some of the houses in this development were still in the building process a year or two ago.
Any lot during the development has temporary wooden markers to define the boundaries between adjacent lots as well as front and back. It doesn’t make sense to say “we asked three times to have the lot stacked and they didn’t do it”. You must be happy that you got extra half acre more than the acre you purchased.  You were aware that  Open Space is abutting your lot. You didn’t figure out that the lot you bought is different shape and size from the  lot plan you contracted for. The only change, it is on the expense of the Open Space.

If  you are the first homeowner thru a building contract with the builder, you can not claim the fact that your home was marketed and sold with a landscaped yard that violated Open Space. Your lot was vacant land and you contributed to all of the decisions, specifically any upgrade such as a fence or extra landscaping. The Certificate of Occupancy is irrelevant to the boundaries. They are only concerned with the building structure and the required front and setback as well as any grading issues or erosions. The building Inspector is not a surveyor.  He doesn’t approve encroachments and doesn’t police easement or covenant. So your argument is “the developer gave me extra bonus lot of half acre from the open space and the town signed the Certificate of Occupancy. Therefore, you are entitled to public land.”The developer and the town didn’t clearly deny or agree their wrongdoings. If anyone made a  mistake,  you will have to prove it.  Any party should be responsible to for its actions.

   If you are the first homeowner to a model home or a completed home and the developer marketed and sold it to you, the developer must have given you a lot plan by the surveyor. The lot plan is normally attached to your deed, clearly stating the home’s boundaries and various landscape areas encroaching onto other lots or open space There is no valid argument to justify your extra land. The plan should have and must have been examined before buying. Your real estate lawyer committed malpractice if he did not see it.

   If you are a second homeowner, you should have surveyed what you were purchasing. You may blame the seller, the first homeowner, who sold the home and misrepresented the boundaries to you. Your real estate lawyer committed malpractice if not advising you to survey the land properly.

If you are a first or a second homeowner,  you, most likely, have a mortgage loan. Your property MUST have been surveyed by the mortgage company as a rule and a survey you paid for it like everyone else.  You must know the additional space in your yard is an Open Space land.

You also made a mistake by accepting a bigger lot and didn’t ask yourself where the bonus part come from. You didn’t bring a surveyor and relied on visualizing to pay 1.5 million dollars. You didn’t look into your lot plan. You asked three times about the stakes and gave up. It is obvious you are not the kind of person who give up easily. You don’t want to give up mowing the open space area!!

12 Nora England January 8, 2014 at 8:57 PM

Any deed will specify the size of the lot exactly. It doesn’t make any sense to believe that the neighbors thought they have 2 acres or 1.5 acre while their lot is 1 acre or a little less. The site plan in this article will show in few seconds the true size and shape of any lot. It is not logical to claim ignorance and demand to expand on the expense of public land.

13 Rob January 16, 2014 at 2:43 PM

It seems obvious to me that the developer mislead the home owners, the town enabled him to do so, and no one thought the issue would be brought to the public’s attention. The town doesn’t seem to really value there open space…. compared to its relationship with developers. Small town politics!

14 Just Curious January 9, 2014 at 6:51 AM

Hello,

I believe this statement attributed to Mr. Cimino is something that has not been addressed by anyone in town government: “He believes they need to fully address the underlying issues to convince the town this could never happen again before putting “a final stamp”on a compromise agreement.”

I scratch my head every time I hear or read something that indicates confusion on open space and zoning. There are a TON of written regulations, and requirements for many hearings yet we still end up with confusion and a mess.

The past several years have not been kind to the Planning Board. Some of the problems have certainly been self induced. Perhaps it is time for some new people to run for the board.

15 Tim Martel January 9, 2014 at 9:43 AM

My understanding is that one of the major underlying issues has been the confusion around ownership of enforcement (i.e. the inspection of open space was not explicitly assigned to the Building Inspector). So no formal inspections/enforcement ever occurred. There had been discussion about forming a committee to establish this policy, but I don’t know its status.

16 Nora England January 19, 2014 at 9:22 AM

My issue about the subject of Barn Hollow is to support the possible losers who are “us”the Residents of Southboro affected by different dynamics:

1) The homeowners are fooling us by making an argument to justify getting 5.7 acres from us. The argument presents the sale of 12 separate houses as if it was one transaction. The argument says the homeowners were naive. They didn’t know the boundaries of their lots and they were fooled by the builder. As a result of their ignorance, they got an average of 50% increase in their acreage.    “Seriously”    This is the first time to hear that the victims of fraud  who also were negligent actually gained a lot of land which is one of the most expensive land in the area.

2) The developer could misrepresent some of the lots or did not follow the rules. Instead of being reprimanded, the town is trying to solve his problems. The developer was being described as a generous and flexible. The developer now is saying with confidence that he will give almost 70% of our Open Space to the homeowners to solve the issue. It is not his land to give it away as there is a binding agreement to hand it over as an Open Space.

3) The Open Space Committee is losing its land which is protected by covenant and the land will become yards added to the homeowners. 

4) The Selectman who is for some unknown reasons put himself as the homeowners’ counsel trying to convince us with the same line of “one story covers all”. The Selectman now is facing the fact by his support and loyalty  to the homeowners, he will deny us huge area of open space. I hope he will  change his loyalty to the public interest.

5) The Planning Board is to be determined. Some of the members are following the instructions of the Selectman,  while he wants to change his public stance. Some other members don’t buy the stories being told.

6) The residents of Southboro  could be the biggest losers. We might lose our Open space land. We are observing double standard in dealing with the issue.  We are being told odd stories and arguments to pacify us from time to time.   This issue will open the door to legalize past and future encroachment of public land. Hopefully, someone will be fair to us.

17 Al Hamilton January 19, 2014 at 11:30 AM

Nora

I think you are being a bit harsh on the Barn Hollow owners.

1. An open question in my mind is did they have the expectation that the Town of Southborough would enforce its rules relating to the subdivision of land? The rules are pretty clear:

“Reinforced concrete bounds shall be required by the Planning Board at the corner points of the boundaries of the subdivision and at corners and the changes in direction of the boundaries of each lot.”

Imagine you are planning on moving to town with all the hassle that moving entails. Your new house gets a certificate of occupancy. This means that the Town says that T’s have been crossed and I’s dotted with respect to its rules and regs. Might you reasonably rely on that to believe that your boundaries were marked? They were not, (nor were they marked in other developments done by other developers at the same period of time).

My point is that the Town is not guiltless in this affair.

Mr. Rooney, to his credit was exploring a way to resolve this mess that would not end up with the Town as a potential defendant in a law suit. Regardless of the merits that would cost us a lot of money that could be much better used elsewhere.

2. There is no specific requirement that open space be transferred to the control of the town. The only requirement is that is be “covenant restricted” this is typically done with a conservation easement of some form. There are examples, in town, of open space created by residential development being transferred to non for profit entities.

One possible solution would be for the neighborhood to create a not for profit that would hold the land, place a conservation easement of some type on the land and then manage it as they see fit.

This is a mess. Yes, Barn Hollow residents, and the developer bear a substantial part of the responsibility for this steaming pile. Caveat Emptor figures heavily but, the Town of Southborough is not guiltless. For better and worse I think we should find a way through this mess that avoids getting the Town tangled further is affair. The Barn Hollow residents are now our neighbors and fellow Townspeople and deserve a measure of consideration. Resolution is going to require some give on all sides.

3.

18 Nora England January 20, 2014 at 7:47 PM

Thank you Al for your comments. I am only advocating for the residents of Southboro. I heard before statements like “who cares, if it is an open space or landscape” or ” give them the land and there will be no losers” “let us move on”.  Every time I read or write any comment, I get more convinced that the residents of Southboro are the main losers and no one is defending their case. 

1) When you live in a new subdivision and you have a house with no neighbors on the sides and back, your lawn will extend more than it should from each side.  When a new house is being built next door, you expect that your neighbors’ boundaries will get restored. You cannot tell the new comer that you thought his land is yours and you like to have it. The same thing happened when the time come to hand over the open space to the town. The owners knew very well the extra land belongs to the open space, but they felt their yards will look smaller and they cannot see any owner will benefit from it. 

2) The homeowners are , definitely, very bright professionals and businesspersons. You can tell from the sophisticated lobbying and the clever persuasion. I looked on the subdivision using Google Earth and you can easily see the pockets of expansion of the homeowners’ yards onto the open space. It doesn’t need concrete markers to discover the encroachments. There are no important structures built on the encroachments that they cannot live without them. The encroachments are extension of lawn.  It seems to me the main culprits are 5 or 6 houses not all of them.  Ordinarily, you are happy to get what you paid for. They paid for one acre or so and they got it. They want more without paying anything for it. 

3) This is not neighborly to get, not a feet or two, but 5.7 acres from the public land. 

4) It is not neighborly also to bully us or the town by threats of lawsuit to bleed our resources to take over our land. 

5) The “no losers” solution is easy and fair : the homeowners stop mowing the encroachments. That is it. They still get exactly what they paid for. The Open Space/town gets the land per the covenant. Investigation of each case will be initiated. If the developer or inspector made mistakes they should receive appropriate penalties.

6) Al,  I agree with you the Barn Hollow residents are now our new neighbors and fellow Townspeople and deserve a measure of consideration like an apology if a town’s employee made a mistake. I doubt it that the whole thing was due to “lack of stakes”. It can be believable, if they were putting up tents, not building well engineered development. There are at least 30  sophisticated precise plans by surveyors on the records telling us there was no possibility of misunderstanding.  However, no mistake deserves us to lose 2 or 3 million dollars worth of land. 

7) The rest of Southboro residents also deserve to get the exact land as it stated by covenant and agreement. The greed should not be taking over by lobbying or bullying.

19 Barn Hollow Resident January 20, 2014 at 10:50 PM

Hi Nora,

Nobody is trying to fool you. I am the original owner of this house which was used as the model home for over a year. As stated before, the yard, landscaping, irrigation, and fence were put in by the builder, not me. The yard is bordered by undeveloped land, I was told my yard consisted of the landscaped area up to the border of the undeveloped land which made sense as it was all incorporated into one cohesive, landscape plan, and my irrigation system watered all of it. Who elses yard would it be? There were no breaks to the yard to indicate anything different. There was nothing on the property that delineated lot lines (wooden markers), nor were we given plans showing our landscaping was on open space. Our mortgage company also did not require a survey of the lot. We have bought four homes over the past 20 years, we have refied several other times. Not one mortgage company has ever surveyed the lots or require that we do so.

You are incorrect in your assertion that the homeowners are trying to take 5.7 acres. You are also incorrect that the homeowners are taking their lots from 1 acre to an acre and a half. The estimate of all the land in question is around 1.5 acres (split between many yards). The OS committee did not want the odd shaped parcels and therefor they wanted the compromise to include the entire ring of the OS around our houses, this is how it became 5.7 acres. I in fact probably have 1/4 – 1/3 of an acre that abuts the OS in the rear of our property that I have left wild. If this issue was simply about creating a larger yard, I would just clear that area.

You are clearly as invested in this issue as we are. I would like to extend an invitation to you to come out and meet with myself and my neighbors. I think a walk of the subdivision would allow you to visually see the issues I have outlined. I also believe you might begin to view us as your neighbors and fellow townspeople, instead of crooks and adversaries with nefarious intents.

Kindest regards Nora and I hope you will consider my offer.

20 Nora England January 21, 2014 at 11:07 PM

My fellow townperson, the Residend of Barn Hollow,
Thank you for your invitation to visit you and your neighbors. We should do it when the grass turn green to see things clearly. 
I have never in any time viewed you as crooks or being with nefarious intents. I am only stunned by the homeowners’ powerful abilities to lobby, argue, thank, bully, convince, attack, comment, and charm.(this one you did it to me!).  Who can debate with you?
Imagine a person receive monthly government retirement check with extra 100 dollars by mistake for 5 years. All of the sudden, the mistake gets corrected and he gets no extra $100. The person thought all these years that this was his right money. The government also will get the extra money back. It happens all the time. It seem harsh, but the courts find it fair. The  government says the extra money paid belongs to the people’s fund.
The same happened in your case. You bought a house there was extra land handed it over to you. You didn’t know about it. Now, you know. Will you keep it or give it back?
My thought is that you enjoyed the extra land all the past years. Now, you know it belongs to the people of the town,  just stop mowing the area. It is easy, especially, you moved the fence, you still have your regular yard.
Some of your neighbors may have bought their homes as second homeowners or they built theirs. But all of you got extra land by mistake or overlooking by not surveying the land. The good thing you got 100% of what you paid for. It is OK to give the “extra ” you received by mistake. Will you keep it or give it back?

21 Al Hamilton January 22, 2014 at 9:34 AM

Nora

I am afraid that you are missing some important points:

1. From the buyers perspective they were paying for a house and a lot. They had no knowledge that some of the lot they thought they were buying was not in fact being sold to them. The key point is that what they thought they bought (and paid good money for), and what they actually bought are different.

2. The buyers seemed to rely on the developer for the definition of where the lots were based on the landscaping. In the hurried hassle of building a new home with the 100’s of details to be dealt with who else would you rely on?

3. The buyers got a certificate of occupancy which, in theory, means that from the Town’s perspective our development and code requirements have been met even though they clearly had not since the concrete monuments had apparently not been installed. Had the monuments been installed as required this issue might never have seen the light of day since the problem would have become more obvious.

4. After some 5 or 10 years of living in their homes and using their lots they are informed that they do not own some of the land that they paid good money for. They are told they have to take down fences, stop mowing, and remove other improvements. If this happened to me I would be miffed. I am given to understand that the residents treatment was less than courteous, I hope I am wrong.

5. You keep coming back to suggesting that the buyers were negligent in not getting a survey. Surveys are not part of a normal house buying transaction. Surveys are expensive and banks do not require them because they require title insurance to protect their interests.

6. You refer to stakes as corner markers there are a lot of stakes on a construction site. The can mark wetlands, boundaries, easements, grading plans, utilities ect.

So, I want to ask you how do the home owners get compensated for their loss. They paid for X and then found out that what they were sold, with the towns blessing was 0.8X. They are in my opinion owed some consideration.

Finally I want to address the issue of mowing. Our officials seem to believe that all open space that happens under our development regulations has to remain “wild” more correctly that natural succession is not abated. This is not what our regulations say. They envision that some portion of open space (perhaps as much as half) can be managed for “parks”. My feeling is that if some portion of open space is mowed by neighbors to provide a common area for kids to play on etc. we should be embracing “act of community” not discouraging it.

22 Tim Martel January 22, 2014 at 12:48 PM

There is nothing sacred about “wild” or “park” open space. Other cities and towns have up to 7 different kinds of open space. The BOS could look into the possibility of updating our bylaw to permit an “aesthetic” type of open space. Given the progress of the current compromise, I wonder if updating the bylaw might even be a quicker option…

Of course, none of the above excuses the developer’s responsibility to provide the required amount of open space to the Town.

23 Barn Hollow Resident January 22, 2014 at 11:15 PM

Hi Nora,

I have read several of your posts over the past few months which had a common theme. You have stated that we are well connected within the town, and have lobbied, bullied, and threatened the town to get what we want. I want to make sure the facts are stated as I feel this is a very unfair portrayal of my neighbors and myself.

When this issue arose, we were all stunned to say the least. We discussed it in passing but were unsure what to do. We came to the conclusion that we needed to reach out to the BOS, PB, and OS to see if we could find someone who would discuss this issue with us. The problem was, we were not connected. Not one person in our neighborhood knew anyone who worked on these boards or committees. We made a generic request and were lucky enough that John Rooney had a Saturday afternoon free and agreed to come out and talk to us.

I also do not view a request to have a decision reviewed to be lobbying (at least in the sense in which I view lobbying). You are correct in the literal sense of the word, as anytime you ask for anything at all you are technically lobbying. I simply look at this as the process of town government.

I particularly object to the statement that we have bullied, attacked, and threatened the town to get what we want. Not one of my neighbors or myself, to the best of my knowledge, have engaged in any of these practices. Without exception I hold my neighbors in high regard and view these practices to be beneath them. What we have done is to respectfully ask the town (and townspeople) to hear our side of the issue. This is the same right enjoyed by all of our residents so I am having a hard time understanding why you view this as bullying and threatening when we do it? I don’t recall people being accused of bullying, lobbying, or threatening when they asked the town to reconsider closing the swap shop. We also have not threatened lawsuits as was claimed, we have simply asked the town to look at all sides.

Nora, I want to make sure you do not think I am attacking your views. There is a lot of misinformation floating around in regards to the Barn Hollow issue and I am simply trying to clear up some of the inaccuracies. We are aware that this is a very divisive issue and we wish we could put it behind us. Like most others we have jobs to work, snow to blow, kids to get to school, school events to attend, etc., and in all honesty this is a draining experience. I do appreciate the discussion however as it shows our residents are engaged!

Kindest regards!

24 Nora England January 23, 2014 at 2:27 AM

Al,

Thank you for listing the points I am missing. I will address each one in the same order:
1. From the buyers perspective, the key point is that what they thought they bought (and paid good money for), and what they actually bought are different.
That is not valid argument. They bought what is described in the deed and identified as the Bounds and Metes. It is all on paper and there is no need for concrete or stakes. This is what they paid for and what they should expect. 18 homeowners had the same illusion. Who will believe that?

2. The buyers relied on the developer to define the lots based on the landscaping because of being  hurried building a house. 18 owners made this mistake. Who will believe that?  However, it can happen. Millions of people rely on sellers to buy used cars, houses, and anything else. Some sellers are honest, others are not. Some buyers are responsible. They inspect, test, evaluate, and measure.  Some buyers are impulsive and in a hurry like the 18 homeowners!!
Unfortunately, their lawyers, real estate agents, and bankers are not of any good help.

3. The buyers got a certificate of occupancy which means that the Town is guilty because the concrete monuments were not installed before issuance of the certificate. Therefore, the Town should honor any boundary encroachment and give out some of its Open Space.  This is a lawyer’s odd arguments.
The certificate of occupancy doesn’t approve any lot boundaries. The house I live in has no concrete monuments in the back and neither my two neighbors have. Can we help ourselves and take a little bit from the wood behind us? I am not sure. I will not enjoy any land that I am legally not entitled to it.

4. After some 5 or 10 years, the homeowners were informed that they do not own some of the land that they paid good money for. They paid good money for what is described by the bounds and metes in their deed, and not in their thoughts affected by the landscape illusion.

5. The  buyers were not negligent in not getting a survey. Survey is expensive. Someone was buying a house for 1.5 million dollars or more, and the story goes that they asked the developer three times about the boundaries and no answer.
There are no stakes or concrete markers. 18 homeowners didn’t request a survey because it was expensive as it might cost $350 to$500. The homeowners felt it is unnecessary and expensive. They felt better to rely on the developer who was dishonest.

6)   a lot of stakes on a construction site, but not good for wetlands, boundaries, easements, grading plans, utilities etc.

You are asking me how do the home owners get compensated for their loss. They paid for X and got .8X . I think they paid for .8X and thought they are getting X , but they got .8X. There is no actual damages. The developer my compensate them. He can refund some of his profits because of his possible dishonesty and playing tricks on 18 of our neighbors. The role of the Town’s blessing doesn’t make sense to me. The Town is unfairly forced as a culprit by the homeowners’ advocates to justify releasing our Open Space to the homeowners.

Finally I want to address the issue of mowing. We need to follow the current rules. We can change the bylaw for anything to apply on everyone.
I think the best way to handle this problem:
1) The homeowners of Barn Holow and their advocates will respect the intelligence of their fellow residents of Southborough and stop using the above mentioned arguments and others. Mr. Rooney started the lawyer style arguments in the Town meeting. Since then, they are getting developed and modified. He made an unforgivable argument that the homeowners will bring a lawsuit against the Town and it will bleed our resources. It does mean to scare us to find a settlement not a solution. I admit that it is hard to think about consideration or to  feel some sympathy when I remember this unkind threats.
2) The homeowners present some ideas to use the entire area of the Open Space which circles the neighborhood for all the residents of Southborough to enjoy. I suggest to have a botanic garden to plant different unique trees and shrubs for our students and adults to learn, or to have tracks for snow activities.  We can all volunteer and donate to make it a beautiful part of southborough, as it is close to the elegant neighborhood of Barn Hollow. It will be much better than to break it by scattered portion of individual lawn. The developer may donate funds to promote the area to compansate for the misrepresentation that the owners complained about it.
3) The open Space Committee needs to approve whatever options which are cosidered ecologically friendly and serve the purpose of Open Space.

25 jim foley January 23, 2014 at 1:37 PM

Nora, I will be the first to admit I am not well studied on this subject. But I can tell you I along with many others feel very little impact in our lives over this problem. As far as giving the barn hollow neighbors the land that is attached to their lot so they can maintain the lot they thought was included in their original purchase. So be it. You see the way I feel is if what you call very expensive land is turned over to them it will increase their property value. In turn it will increase the amount of taxes we collect year after year. This has far more value to most of us than small sections of open space we would not even be aware existed or would ever use. If the developer did not meet his obligation to the town. Maybe something can be worked out there even if it is not tit for tat. Lets not forget we would have the benefit of additional tax revenue. It doesn’t sound like anyone is threating a law suit but certainly that is a possibility. I sure would like to avoid that. I am guessing that is what John Rooney was trying to avoid. Sometimes life is just to short to get hung up on such problems. Many of us would like to give the benefit of the doubt to our neighbors in barn hollow take them at their word and move on to happier times.

26 Just Curious January 24, 2014 at 12:07 AM

Mr. Foley-

I completely agree with you. Great post!

27 Al Hamilton January 23, 2014 at 4:27 PM

We clearly do not see the issue the same way. So be it.

I will note that under our by laws, the Open Space Commission has no authority to approve or disapprove anything. To the extent that approvals are required I believe they lie with the elected Planning Board of the BOS.

28 Hard to believe...... January 23, 2014 at 5:47 PM

Al made these points earlier (point 2 and 5 below) and they are discussed again by Nora but I can’t help but chime in on how wrong I think you are….just my opinion and advice for home buyers……

“2. The buyers seemed to rely on the developer for the definition of where the lots were based on the landscaping. In the hurried hassle of building a new home with the 100′s of details to be dealt with who else would you rely on?” –

*I would NEVER rely on a developer for my plot/lot lines! I would rely on myself and hire a surveyor to survey the land and put it in writing and have it notarized. THAT’s what you do when you spend hundreds of thousands of dollars on a house; you protect yourself from mistakes like this. This is not a “detail” you cannot be hassled with; this is on the top ten of your “To Do” List. This was one of the first things I did when I bought my home.

“5. You keep coming back to suggesting that the buyers were negligent in not getting a survey. Surveys are not part of a normal house buying transaction. Surveys are expensive and banks do not require them because they require title insurance to protect their interests.”

*Surveys are NOT expensive. Compared to the cost of hiring an attorney should there be, let’s say, an easement on your land or a mistake with the developer…..it is a tiny
out-of-pocket expense. It is what you do to protect yourself. Why wouldn’t you?
You are spending $500k on a house or 1million on a house and you think a survey for $350 or $500 is expensive? It’s insurance. “Banks do not require them because they require Title Insurance to protect them” – yes, The banks require Title Insurance to PROTECT THEMSELVES!
You need to protect yourself from mistakes – get a survey.

On a side note…..where your sprinklers are have NOTHING TO DO where your property lines are. When I moved in ( after a survey) we found out my sprinklers were 5 feet into my neighbors lawn. Why? The previous homeowner wanted the sprinklers to swing back and hit his own lawn!

Just had to add my 2 cents.

29 Frank Crowell January 23, 2014 at 6:12 PM

“…..Open Space Commission has no authority to approve or disapprove anything.”

Thank goodness – I was beginning to worry about that.

30 Question February 5, 2014 at 3:07 PM

First I want to say that I do not have a dog in this fight, except for the fact that I am a Southborough Resident that lives near Barn Lane (I drive by there regularly). I understand I’m looking at this a bit late, but can I ask a few questions? First, why are we looking so hard into the “Barn Lane Issue”? I’m willing to bet that this is an issue around most of the OS around town – have we vilified and attacked other neighborhoods? If not, why? Secondly, I keep noting a reference to “5 acres” that the Barn Lane residents are trying to take. Where is this 5 acres coming from? If the plot drawing that accompanies the article is remotely accurate it appears that we are fighting/arguing over a strip of land that surrounds the development where the bulk of the land in question abuts Fisher Road.

The right side of Barn Lane and Fisher is a huge grassy hill which appears to be untouched. The left side of Barn Lane (where the sign for the neighborhood is located) appears to be basically a giant rock. I assume that these areas are ok in regards to teh OS. Also, not for nothing, but I would prefer to have these areas kept up by the Barn Lane residents. Leaving them alone will just allow the grounds to be an unsightly, tick breading mess. I agree that “development” shouldn’t occur on it, but who cares if they tidy it up? Like I said, if the drawing is accurate, it looks like the fight is over slivers of space that were overly mowed – big whoop! It’s not like these people are taking out sensitive environmental land and adding patios – they’re mowing a bit of weeds.

I could understand (maybe) if these people were taking over large areas of land and keeping people from enjoying this space, but I don’t think this is the case. I’m pretty sure that no person other than the Barn Lane residents are ever going to have the desire to step foot in this area.

I say live and learn from this issue. I would also suggest the following:
1 – If need be (and it may already be this way) make it a requirement to have actual perminant markers for any new development claerly marking the corners of the properties.
2 – Survey the Barn Lane properties and give the current owners the option to either pay for the additional land they occupy, or remove any structure (I believe they are just fences) on the OS and return it to nature.
3 – Have the town inspectors be overly astute on any future development that this developer takes part in – make sure he abides by ALL regulations and isn’t misleading any new buyers. Make him accountable to be in compliance with ALL town requirements.
4 – If the encroachment is so grevous we need to ensure that inspectors include at least a visual confirmation of property boundries in the future (easily done if the markers from point #1 are required) before signing off on the development.

Also, as a follow-up, I’d love to see the attached plot drawing updated to highlight the areas in question. Could someone highlight the open space that has been taken over?

31 Answer February 5, 2014 at 9:00 PM

Definitely, Barn lane open space is getting a lot of attention, because of possible reasons:
1) The owners want to change the bylaws, and the easements and covenants so they can get the deeds of the open space land that they are using as extra lawn.
2) It is not a matter of using the land or tiding it up. It is a matter of expanding the value of their properties.
3) The encroachments in this neighborhood was 1.5 acre, now per the article it is 5.07 acres. No comparison with other neighborhood.
4) Strange vibes come in when you hear the different stories. The developer was a fraud. He fooled most of the owners. Now, the developer is dedicated and generous and will compensate the town for the Open Space. All of the sudden, he cannot do it. He doesn’t have land. The town’s inspector was the problem, the town should fix it. Southboro residents may pay the price (with more taxes) as the owners may sue the Town.
5) You said small strip of land. It must be very precious land. Who is helping the owners to orchestrate adding the Open Space land to their properties? They will change the numerous subdivision plans, covenants and easements by the Planning Board, approved by Board of Selectmen, conservation committee, and open space committee. Final step is to get a vote in a special Town meeting.
6) If it is a trivial land issue, why our town wasted thousand of hours of our officials “to reinvent the wheels”. The officials at the end will give away 5 acres of Land of the town’s land.
7) No private land transaction got this unprecedented attention in the town politics as far as I remember. Who is the pushing power behind certain town officials and behind all of that? This is my question.

32 Not in Southboro February 8, 2014 at 1:30 PM

Not in Southboro, I was waiting for someone to defend the Planning Board. BP can not be pushover to do exceptional favors to please 8 homeowners and developer to solve their problem. I cannot imagine the Planning Board will modify the subdivision plans and covenant. The modifications must be  based on plans of parcels of open space demanded by some  Barn Lane homeowners.  We will wait and see. If the Planning Board is acting like a rubber stamper in this matter,  something is not Kosher going on. A formal investigation will be in order.

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