Public hearings on Medical Marijuana and Barn Hollow Open Space compromises (Updated)

by Beth Melo on February 11, 2014

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Last night, the Planning Board discussed its plans for upcoming public hearings on warrant articles slated for the Annual Town Meeting. Two of the articles are new compromises reached on issues tabled at the Special Town Meeting in October: Medical Marijuana dispensary zoning and Barn Hollow Open Space land parcel acceptance.

The compromises were reached based on efforts of the working groups on these issues. As most Planning Board members weren’t involved in that process, Board Member Paul Cimino laid out the details for colleagues Kathleen Bartolini and Andrew Mills.

Cimino asked everyone to keep in mind that nothing will proceed to ATM until public hearings are held for community feedback.

Medical Marijauana Dispensary Zoning

The Working Group on this issue included Town Planner Jennifer Burney and Board of Health Director Louis Fazen. The new compromise version of this bylaw includes:

  • Zoning in the industrial zones that abut Route 9 in addition to industrial park zone.
  • No required setback from residential zoning.
  • A 500 foot setback from daycares, schools, and recreation.
  • One exception to the recreation setback: an area across from a reservoir. (The area isn’t actually used for recreation. Without that section included, the zoning was still deemed too limiting.)

The new zoning is more easily accessed and offers more options than the original zoning drafted last summer.

Cimino assured his colleagues that Fazen has promised to advocate for this version with his board. Today’s Board of Health meeting agenda includes an update on the issue.

The biggest complaint lodged against a similar proposed bylaw at the October Special Town Meeting seemed to be that the last minute compromise was a “bait and switch.” Many residents believed that people needed time to review the bylaw and its impact before voting.

The Planning Board hopes to post the proposed bylaw and map in time to open a public hearing on Monday, February 24.

Barn Hollow Open Space

The Working Group on this issue included Selectman John Rooney, Town Planner Jennifer Burney, Open Space Preservation Commission, Kevin Giblin and the homeowners. While there was never a meeting that included all parties in one room, all were consulted in an effort to draft the compromise.

Neither OSPC or the homeowners had yet to seen the version of the compromise Cimino outlined last night. However, he believed that it captured the essence of what both of those parties were seeking in earlier discussions.

If the proposed measure is approved:

  • The entirety of the originally agreed 7.65 acres of Open Space will be deeded to the town.
  • The majority of the perimeter strip, currently undisturbed, would remain that way.
  • The town would grant individual easements to the small areas that are currently disturbed (allowing for current landscaping maintenance but no building or structures.)
  • The $5,000 bond originally granted by the developer to allow maintenance of the open space will no longer be needed. Instead, the bond will be granted to the town to allow the town to continue work on reforming the open space process and bylaw.
  • The developer will pay for expenses related to filing the easements.

If plans and materials are ready to post publicly in advance, the Planning Board hopes to open a public hearing on Monday, March 10.

(Left photo posted to Flickr by Neon Tommy. Right image from developer Brendon Properties’ website.)

Updated (2/12/14 12:48 pm): Agenda for the hearings on Medical Marijuana and FEMA for 2/24/14 has been posted. FEMA information is on the town site. They are still working on getting the Medical Marijauana materials posted. There will be link on the same page once available. Click here to visit the page.

1 SB Resident February 11, 2014 at 2:32 PM

The attempted bait and switch in the medical marijauana article taught me what a bunch of junk our local government is. To try and simplify it, the argument was that as long as an option was at least discussed at a previous public meeting, then that option is on the table for a vote a public meeting. An example in this case would be the possible zoning was discussed at a public meeting, the option of setbacks vs no setbacks was discussed. They agreed on a certain setback and took that choice to public meeting, at town meeting they then switched it to no setback and tried to put it to a vote. This way people who would be opposed to the no setback option would not attend the meeting, then they could just switched it back and try to sneak it through. Thankfully in this case, the people at the meeting saw through this nonsense and voted to postpone the vote, but non-the-less it simply disgusts me that they would even try.

I’ve said this before and I’ll say it again, I respect Board of Health Director Louis Fazen’s opinions when it comes to issues regarding public health, but it is my opinion that zoning (or at least this aspect of it) does not have anything to do with public health this is town planning issue and that is it. I do not think that any person in Southborough should have to have a shop that grows a federally illegal substance adjacent to their lot. The original proposal from the last town meeting was a good one and we should go back to it.

2 Resident February 12, 2014 at 8:16 AM

Not agreeing with what our elected officials do is one thing. Calling them a “bunch of junk” is quite another and completely uncalled for. I could not follow your example at all and therefore do not understand what you are upset about but you do lose credibility when you start calling people names.

3 SB Resident February 12, 2014 at 2:05 PM

FYI I was not calling anybody junk, I was calling the system junk. Sorry that you couldn’t follow the example. Making it more clear was too much to type. Basically I was trying to demonstrate that there is a loophole in the system that essentially makes it legal for anything to be put to vote at town meeting even if it is not on the warrant. That *is* “junk” and our officials should be better than trying to take advantage of this loophole.

4 Al Hamilton February 14, 2014 at 9:22 AM

If no person in Southborough should have a medical pot adjacent to their lot then it follows that you would apply the same standard to any other person in Mass. That being so, it would be impossible to open an medical pot store. That in turn would thwart the expressed wishes of the electorate who, by a substantial margin, voted in favor of this endeavor.

I do agree with you that this is a zoning issue.

5 SB Resident February 14, 2014 at 3:12 PM

My wording could have been more clear, but ultimately I think there are locations that we as a state and community could come up with that would satisfy the express wishes of the electorate. I think the first draft presented last summer was reasonable.

6 Carl Guyer February 11, 2014 at 10:53 PM

This compromise is an unnecessary tangle for the town. Over time what there will always be in question on the proper use of the town’s land covered by these easements. I have been on this property and seen it. Allowing an easement as a continuation of homeowner’s lawn on to open space is a future of trouble. If the homes are sold in the future, will the new owners inherit the proposed easements forever? There remains the question of how this entanglement came to be and was their any misrepresentation of the true property rights/value made during the sale of these homes. Until this fundamental issue is resolved any allowances outside the original intent is suspicious. On what basis do these homeowners claim to have rights to this land and here is the real issue here, can I make a similar claim to open space next to my property? Is encroachment the first step to ownership rights?

7 SB Resident February 14, 2014 at 3:54 PM

To answer your question somewhat in jest, yes encroachment is the first step to ownership, though land owned by the government is questionable.

http://www.lawyerviews.com/lawsite/basicinfo/ap.html

The argument on the website for this law mentions protecting the status quo. In this case, the status quo was developed over only 10 (ish?) years, not 20, but really if no one noticed during construction and for the following 10 years then personally, I think status quo should win, the owners of the open space must not have cared very much about it. I agree that this compromise isn’t ideal (compromises aren’t) but it does look to protect the status quo and easements are relatively common in real estate so legally it should be fine.

Ultimately if the town wants to own land as open space, then the town needs to protect it. This wouldn’t take much. It would probably take one person one day to survey the perimeter of all the open space in town, if this were done yearly, we’d have no issues. Even google maps satellite view tends to update often enough that you could do the check straight from a computer. The barn hollow encroachments are easy to see.

8 Carl Guyer February 17, 2014 at 10:11 PM

Your reference maybe correct, but realize that the future “open space” is not owned by the town, it is privately held by the developer. The “status quo” issue is between two private land owners, the town is not a party to this dispute. Your reference puts the developer is a tough place. The land is “owed” to the town, as a debt, by the developer as part of an earlier compromise with the Planning Board at the start of the project. Now the developer, due to the developers lack of due diligence in protecting the land, finds the developer in a position that prevents delivery of the land as promised, as clearly indicated by your reference.
You might be interested in knowing the developer placed a conservation restriction on the land at the start of the project. Yikes…..
What was said in Hamlet about conditions in Denmark?

9 Southville February 12, 2014 at 8:19 AM

How about we let the Barn Hollow people keep the extra land they have if they promise to grow medicinal marijuana on it? Two problems solved at once! :)

10 Mark Ford February 12, 2014 at 10:24 AM

Southville, I had the same idea myself! ;-)
Or site a clinic there…

11 The Best "Compromise" February 12, 2014 at 3:57 PM

Any Southboro Resident has an encroachment issue with the Town land or Open Space land should receive the same deal. The Planning Board ( No questions asked) will submit a “compromise” for Easement Deed in return of the landowner pays for filing of the Easement Deed.
We Love You Planning Board. Thank You When will we apply?

12 John Butler February 12, 2014 at 5:10 PM

There are two different issues that arise with this Barn Hollow report.

There is the matter of how the proposal was developed and there is the substance of the proposal.

With regard to how it was developed, there is this peculiar sentence, “While there was never a meeting that included all parties in one room, all were consulted in an effort to draft the compromise.” This is telling you, fellow citizens, that the participants decided to avoid allowing you to attend their proceedings by attempting this end-run around the State open meeting law. In order to fashion a recommendation without needing to post meetings, in their view of the law, they passed their opinions through one person. Generally the Attorney General’s office is skeptical of such contrivances when responding to complaints of violations of the law. If any citizen wants to know the procedure for such complaints, I can assist, but personally I am weary of chasing this legal process with the Planning Board.

The far larger question than the narrow legal one of whether this was a violation or not, is why our some of our public officials are so averse to operating in public. Why they choose to circumvent the spirit of a good law that serves us all. I have served on countless committees for 30 years, some of them extremely controversial, and can say that there is never any substantive impediment posed by compliance with the law. Further, the skeptical comments posed here about the matter at hand reinforce the view that this is a topic of public concern, (some of these writers might have attended meetings) and further that developing public support after such a process is just made more difficult. What does it take to get a broad and accepted realization that openness is a pure good that always serves the public?

Regarding the substance of the compromise, we will need to see the details. As some of you may know this acceptance of open space proposal was before Town Meeting in October. At that meeting I spoke for Advisory Committee’s unanimous position that the Town should take the land, as is now proposed, and then proceed to act as a good neighbor to those residents. Town Meeting chose to give the Selectmen more time to work out a compromise that was described at Town Meeting as involving giving title to the residents in return for a land swap. This deflated approach could be viewed as not much more than codifying some reasonable elements of being a good neighbor and may have much to recommend it. Presumably by the time it gets to Town Meeting the details will be available for public review.

13 Land for Nothing February 12, 2014 at 8:17 PM

Mr.Rooney, Ms Burney, Mr. Giblin and Mr. Cimino , the members of the Open Space working group,
Your proposed compromise is hilarious. We laughed a lot. You insulted our intelligence again. This time, you are good comedians. I trust all of you that the compromise was not created under the influence of Medicinal Marijuana.
If no Comedy was intended, Please, someone of you may explain the logic behind the Compromise: Land for Nothing.

14 SouthSider February 13, 2014 at 10:34 AM

I don’t like the open space compromise. Carl Guyer and The Best Compromise writers above have it right. It seems to me that the permanent easement solution simply turns the land over to the abutters with the town receiving nothing in return.

I can hear the chainsaws starting all over town as other abutters begin the process of enlarging their yards.

15 Resident February 13, 2014 at 11:44 AM

Just so I understand this correctly, does an easement mean that the town doesn’t then receive property tax from the owner on the land it provided an easement for? That would seem to make it beneficial for the town.

Would all residents that live near open space then be allowed to apply for permanent easements? How does this translate to other neighborhoods?

16 beth February 13, 2014 at 11:46 AM

Correct, the land is still owned by Southborough – so no taxes. I can’t answer to your second question.

17 Land for Nothing February 13, 2014 at 6:05 PM

The answer to your second question: Land for Nothing deal is for every Southboro Resident. Our local government is fair and unbiased. Planning Board is astute, creative and full of Compromises. If you live near Open Space and you feel a portion of it belongs to your property, you can apply for permanent easement.
If you get the run around, contact Mr. Rooney he will advocate for you in the annual and special town meetings. If you need any advise about how much open space you need to have like a bigger yard or to have a better view, I think Ms Burney can help. However, Mr. Cimino is the man. He will get the paperwork, plans, and materials ready. You will be asked to pay filing fees. Not Bad. You will get Land for Nothing deal. Not even paying Taxes. If your family is growing, don’t be hard on yourself. You can get another portion of Open Space, however, you will pay again few hundred dollars filing fees. Our officials will not discriminate between Barn Hollow Race Person and non- Barn Hollow Race Person.

18 Al Hamilton February 14, 2014 at 9:29 AM

I applaud Mr. Rooney and the Planning Board for trying to find a resolution to this mess. I believe they were motivated by trying to help our fellow residents in Barn Hollow and avoid the possibility of the town being drawn into an alternative method of resolving this issues.

At this point it may be best for town officials to put the proposition to town meeting and let it vote. I would not suggest that they spend a lot more time on this issue. If it fails, so be it. We may then be drawn into a law suit (after all what is the first thing a lawyer looks for is not a virtuous client but deep pockets). We might prevail but it will cost us thousands or 10’s of thousands.

19 just curious February 14, 2014 at 9:48 AM

I cannot recall all the specifics of Mr. Rooney’s comments at Town Meeting but I do recall commentary regarding a window of time where the town of Southborough could act regarding non-compliance and that time period had long since passed. I also recall commentary regarding the action or inaction of the town building inspector at that time. I do recall discussion that Mr. Rooney, a founder of a prominent Boston law firm warned the town that he felt the residents of Barn Hollow might have a pretty good case (my words, not his) and that they definitely had the financial resources to bring initiate a protracted law suit against the town.

Compromise:
to settle a dispute by mutual concession.
meet each other halfway
come to an understanding,
make a deal
make concessions
find a happy medium
strike a balance
give and take

“we compromised”

There is NO party involved in this entire episode, builder, planning board, home owner, open space, who is not at FAULT to some degree.

We should NOT be trying to find FAULT after all these years. We should be doing two things:

1) Try to find out what happened so we can change town procedures and ensure it never happens again

2) Compromise on this matter

Thank you to Mr Rooney, Mr Cimino, and our new Town Planner Ms. Burney.

20 John Butler February 14, 2014 at 11:40 AM

Well said. This is why I wrote that this compromise may have much to recommend it. We need to see the details, but lets hope that some compromise, possibly this one, lets everyone get past this.

21 The Best "Compromise" February 14, 2014 at 11:58 AM

The Open Space Buster Compromise is the best Compromise. Why?
1- Per the article, Mr Cimino believes it captures the essence of what the Open Space Conversation Committee is asking for in earlier discussions. Please, don’t wake up or change your mind at the last minute. Everybody has a plan: We know, no structure, no Cut, Just Grass.
2- We are happy for the homeowners to get the half acre or so they want. I hope they will support us when we get our turn for our own compromise soon.
3- The developer who proudly admitted that ” he hates Open Space” has done good too. He didn’t get penalized for his alleged misrepresentation and dishonesty to sell the houses as the homeowners claimed. He doesn’t have to give 4 acres land swap. He has contributed in a Open Space Buster compromise which will help him in dealing with issues of the past and future developments.
4- All residents that live near open space will be allowed to apply for permanent easements. We have now a mechanism to get the Open Space we want to enlarge our lawns. The Planning Board and the Town will submit our applications for vote. We are happy that the town will not tell us that it cannot put it for vote, because of violating any Covenant or any regulations. We are protected with Open Space Buster Compromise.
5- Mr. Rooney kept his promise at the Special Town meeting last year. He brought on the table the Best Compromise which has all winners and no losers. We Won. If Mr. Rooney busted the Open Space, “So be it” It will become beautiful residential lawns.

22 Nora England February 15, 2014 at 10:33 AM

Some writers sing the praises of Planning Board and Mr.Rooney for a job well done.
Are they serious? Are they kidding?

This compromise lost its essential element that the developer Mr. Kevin Giblin was expected to give 1:1 land swap of 4 acres to balance the encroachment of the Open Space. The developer retracted his promises after the town accepted the roads of his development. He will pay for filling few deeds and that is it. 

The taxpayers or the owners of the Open Space are the first losers. We could not protect our Open Space in spite of covenant and clear wording in all the deeds of the homeowners. Our arms are twisted to approve such “unreasonable measure” by coercion and fear that we will lose more money if the Barn Hollow owners sue the Town as they threatened.  Other taxpayers are happy for the legal precedent which is now in place. The compromise needs to apply to every resident. They are not kidding.  Watch out for future problems and demands.

The homeowners are losers too. They will be affected by this divisive issue.  The negative feelings of some Southboro residents including myself are distressing and unescapable.  It is suspicious to have this double standard and preferential treatment to specific group of people. 

The Open Space Committee is one of the biggest losers in this compromise.  I put all effort to support the mission of the  committee. Stand up for your rights and you will find the women and men of  the town backing you 100%.

Mr. Rooney, it looks from the surface, you could be one of the losers.   Few days ago, you were quoted that your bottom line was that you need to protect the town.  With this compromise,  I have my doubts. Others tried to help you. They explained  the reason for such measure is that Barn Hollow owners will the sue the Town. The owners denied that on this website. Let us see a formal Complaint by the owners, if you are still scared you can give them the Open Space land.  Your credibility is the single most important asset as a good politician. Don not lose it.

23 The Best "Compromise" February 15, 2014 at 3:17 PM

Nora,
Why you care very much about the Open Space? The officials, Open Space Committee seem not very keen about it. I bet you if 100 or even 200 acres of Open Space became lawns, you or anyone will notice. You will still drive on Route 9, 30 or 495 everyday and you cannot tell. If you don’t like the entitlement of the violators of barn hollow and the treatment with baby gloves they are receiving, try to avoid politics and its hidden agenda. Try to be positive about the whole thing. The Town has given us the green light to accept compromises on Open Space. You think it is unreasonable. Nora…Take advantage of it as long as it lasts. If you or family members live near Open Space, start the process as Mr. Cimino will help you too. Who cares? There is no one denying other neighborhood can do the same.
The only thing of concern to everyone is lawsuit will be brought by barn hollow homeowners. I agree with you. People in the past was scared to have a law suit against the Town Hall. Now, the Town Hall and Mr. Rooney are scarred to have a law suit againsr our good neighbors of barn hollow.

24 Nora England February 17, 2014 at 8:37 PM

The Best Compromise,
Thank you for your kind advice. I will try to explain my thoughts and standing in the following points:
1. It is not a matter of liking or noticing the Open Space. The Open Space serves as an ecological system that integrates with a residential community. It is like a lung to our body provides needed Oxygen. It is a sanctuary provides the natural habitat of the local wildlife. It is like the skin protects us from environmental changes. It protects the wetlands which have important value for our water resources. If a strip of land of 4 acres ( like the one in Barn Hollow) becomes interrupted by  pieces of lawn several times, this ecological system will lose its function. It is like our lung will lose its function,  if the airways are blocked and lung tissues are removed. Imagine a deer and her baby are searching for their food in this strip and suddenly there is a mower and fertilizer being spread on the lawn, it will disturb the mother deer and it may run away and may confuse the baby deer and get lost or get sick from the fertilizer. The birds, butterflies, worms and others may have a problem too. The global warming, we are facing its consequences, is a direct result of the same logic. There were plenty of woods, but poeple felt why we shouldn’t cultivate crops instead. We lost a lot of ecological systems which was supposed to refresh our contaminated and polluted environment. The assault on the Open Space was severe before we have laws to protect our ecological system. Not all the green lands are equals, the lawns doesn’t serve as an Open Space. It is not part of the ecological system. I know you are excited about enlarging your lawn but you may not know the assault on the Open Space may hurt you and all of us in the years to come.  
2. Now, we have laws. We have covenants. We have clear language in each homeowner deed which abuts the Open Space. We have an Open Space Preservation committee  that includes very fine people. I watched one of the committee member Ms. Frederica Gillespie trying her best to protect the Open Space of Barn Hollow. She was on her own, but very logical in her scientific and legal arguments against several men representing homeowners, developer, and politicians.
I didn’t know much about the issue at that time. I felt Ms. Gillespie should not be left alone on this. I sat, cried, and did nothing. I have never talked with her personally. Couple of weeks later, I tried on this website to argue against the different odd stories generated to make a case for exception of the law. An exception to lose another piece of Open Space and give a formal Ok to the encroachments upon the Open Space. I don’t know if my contribution did support or hurt her case, but it supported my consciousness as a resident. We should not lose Open Space as a civilized community after all legal back up we worked hard for it.   I am not sure why no one from the committee commented on this Compromise. I have my strong doubts that it will be accepted. There is a possible trick by bundling the acceptance with giving easement to homeowners. If voted no there will be no acceptance and the encroachment will continue for years and years.
3. I wrote several comments about the subjects. I was very surprised that some of the regular writers have been very condescending to the Open Space Committee.  They are claiming among other claims that the Committee cannot approve or disapprove anything. Obviously, there is no support or lobbying group to help their good mission. I don’t know a lot about the local history. The Committee can count on me as a supporter.
4. I doubt very much that people who are happy with this “Compromise” will get anything they are expecting. The logic says what applies in the Barn Hollow, will apply in other neighborhoods. I believe it is not the case. The local government cannot compromise on the law consistently. People will feel angry when they feel being treated differently. They may start mowing a couple of feet extra every 2 months and it builds up quickly. They may use the Open Space to store firewood, then take the patio furniture to paint it there away from the kids and the house. Then shortly, throw temporarily the stuff in the garage to clean up then forget the stuff forever. We don’t give the above mentioned people an easement deed like their neighbors in Barn Hollow, but we give them a message that you can invade Open Space “if you have an excuse”. Theoretically. If there was a police for Open Space and caught a violator. The first response will be why you care now about the Open Space law…Remember Barn Hollow Compromise.
5. The issue of lawsuit is merely a justification for this illogical compromise. Mr. Rooney is a famous attorney but he didn’t read a Complaint of one or all of the homeowners. He didn’t study all the documents and interviewed all the previous and current homeowners, and the developer presentations of each house to conclude that “the owners have pretty good case”. It is like a doctor looks at you for few seconds and tells you to go to nursing home. He may be super doctor but he needs to do his physical and investigations and convince you with his advice.  It is not ethical for an attorney to scare people with the cost of defending ourselves and high potential of losing without proper evaluating the case. Last thing anyone wants to hear is to increase the risk of tax burden. I don’t see any rationale of a Compromise to lose Open Space protected by laws because of unclear threats by homeowners and improper evaluation by a politician not acting in his capacity as a lawyer.
Best Compromise, this is why I don’t want the Open Space gets busted.

25 The Best "Compromise" February 17, 2014 at 11:34 PM

Thank you Nora. I think, I am human and I can be greedy. I thought it is Ok to substitute the Open Space in the back with a nice lawn, if you pay the fees. I don’t want now to have any little part of destroying our environment. If some neighbors want that now they may regret it later. I cannot understand the behavior of our local politicians.

26 John Butler February 17, 2014 at 9:23 PM

Here is why the “compromise” position may make sense: the “no compromise” position, advocated before Town Meeting by the Advisory Committee in October, was defeated at that meeting. Those of you who advocate for “no compromise” whether directly, or sarcastically, must have 2/3 of the votes to win, to accept the land. All of the points that are made here about the problem of compromise, were made at Town Meeting, but we lost that vote.

If you are dead set against a compromise, you can show up at Town Meeting and try to amend any proposal to, once again, merely take the land. However, I’m just being pragmatic when I say that this compromise may have much to recommend it. It is time to get something done, and a 2/3 vote is hard to get. This is democracy. Not enough people showed up voting “no compromise” in October, so now it is time to make a reasonable compromise, in a good spirit, and move on.

27 The Best "Compromise" February 17, 2014 at 11:09 PM

Mr. Butler,
May I ask you to explain to me few points?
A) What do you mean ” I say this compromise may have much to recommend it”?
B) Why I cannot get a .5 acre for my lawn from the Open Space behind me? I am not sure I will want that for ethical reasons after I read Nora’s comment.
C) Why No Compromise requires 2/3 of votes and Compromise requires less?
D) What is the Compromise in the current proposal? You give land for nothing. This is why I liked it!! I was happy to pay to filing fees and 5000 dollars for one piece not 8. Who excused the developer from giving the town a comparable land.
Thank you

28 John Butler February 18, 2014 at 10:19 AM

My requested reply:
Bear in mind that my preferred position was that we simply proceed to take the land as planned and tell the neighbors that we would “be good neighbors” to their land. That proposal was defeated at Town Meeting and Town Meeting endorsed the idea of a compromise. A) What I mean when I say this may have much to recommend it is that it is far more modest in its scope compared to the concepts that were discussed at Town Meeting as possible compromises.
B) The idea that, if we compromise with these landowners, there are 300+ other parcels in Town for which people might want some “compromise” was a centerpiece of the argument I presented at Town Meeting. As I say, that argument lost.
C) 2/3 vote is required to accept the title to the land from the developer. Opposition to that in October prevented it from getting the necessary votes. If the opposition is satisfied with the compromise they may vote for the acceptance this time, or not oppose it.
D) I don’t think I understand your question. On one side there is the view that the Town accepts the land, and that’s that. On the other extreme the homeowners get title to land adjoining theirs that was supposed to be open space owned by the Town. One idea for a compromise, presented in October, was that the homeowners would get title to the land but the developer would offer compensating land to the Town, but such land apparently doesn’t exist and furthermore that path has many other complexities. This compromise is that some written assurances are given to the homeowners about what the Town might do with some of the open space, assurances in the form of easements. To be clear, the developer has no obligation to give “comparable land”, that was just an idea for a compromise that didn’t work out, apparently.

29 just wondering February 18, 2014 at 12:13 PM

So many questions:

Why would the town accept this land from the developer before he has worked out his issue with the homeowners?

Is it possible that the homeowners have no real case against the builder? If they have no real case against the builder, could they really have a meaningful case against the town for not accepting or not accepting this land as originally agreed?

Why should this even be on the warrant until the land is in the form the developer agreed to at the very beginning of the project.

Could the agreement between the town and the developer have been any clearer when this project was approved?

Is the developer who holds title to the land paying taxes on these parcels until the town accepts them?

Has anyone reviewed other parcels owned by the town as open space for encroachment? It’s no secret in our neighborhood that one parcel is off limits to public access and is solely for the benefit of adjacent homeowners that do as they like with it.

30 Nora England February 19, 2014 at 12:16 AM

I think I figure it out:
1. The developer finished the subdivision and wanted to hand over the roads and Open Space to the Town (per covenant and agreement) and told the homeowners to clear the encroachments.
2. The homeowners argued with the developer that he misrepresented the lots.The developer asked the homeowners to solve the issue with the Town.
3. The Town got itself involved to solve the problem between the parties.
4. The First Compromise: it was a proposal of land swap. The developer promised to give the comparable land to balance the lost Open Space. The homeowners will get deeds for the encroachments.  The developer desperately wanted the roads to be accepted by the Town. Mr. Rooney hurt the residents of Southboro by claiming that the homeowners have pretty good case against the Town. All of the sudden, the issue shifted from private transactions between the developer and homeowners to become municipal responsibility.
5. The Town accepted the roads. Few months later, the developer told the Town that the land swap was off the table. Mr. Rooney briefly, protested the developer’s decline of 4 acres of land swap.
6. The Second Compromise: the current proposal has no land swap. The homeowners will get easement deeds instead of quitclaims deeds for the encroachments. There is nothing in this proposal will compensate for the 4 acres effectively lost from the Open Space asset of the community.The proposal gives away the Town rights (our rights) to satisfy the full demands of the homeowners and gives easements instead of penalties for the encroachments.
I think the developer and homeowners are clever and influential. Both parties instead of settling their arguments and handing over the land intact per covenant and deeds, they cooperated together to persuade the Town to accept the leftover of the Open Space.

The community is entitled to have its Open Space land intact.
NO LEFTOVER PLEASE.

31 John Butler February 19, 2014 at 1:15 AM

Best attempt at some answers:
-The subdivision agreement included a provision that the developer would transfer title to the designated open space to the Town after completion of the project. Ten years have elapsed, and it is time that that provision be acted upon. If there are any grievances directly between the homeowners and the developer, such do not appear to legally impede the contemplated transfer to the Town.
-Opinions abound regarding whether the homeowners would have a case against the Town. I am doubtful, but my opinion about that doesn’t matter now since Town Meeting accepted the idea of pursuing a compromise premised in part on the claims of legal risk to the Town. It is clear that the Town did not promptly pursue its open space interests in this instance, as would have been desirable, but the purely legal significance of that delay is debatable, but may be moot at this stage.
-It is on the warrant because it is deemed possible that 2/3 of the voters may believe that the condition of the land is good enough as open space that it is better to take it now than delay this action any further. For example, I took that position in October.
-I don’t know about the clarity of the original subdivision agreement, but certainly the boundaries of the lots were clear enough to be transferred and registered for each home and did not encroach the planned open space. Whether the homeowners knew where the boundaries were is unclear.
-Anyone, other than a non-profit, who holds title to land in Town is subject to taxation. I haven’t checked the specifics of taxation on this land.
-Town meeting approved $60,000 in April 2012 to research all open space parcels in Town for encroachment and for documentation. No action has been taken with that money as of today. Two weeks ago the Town Planner told Advisory Committee she was too busy to supervise this work and was seeking additional funds for more staff to assist. One might presume that statement reflects priorities given to her by the Planning Board and the Board of Selectmen, but it is hard to know where it originates.

Note that these opinions are my own, and, except when I reported the position taken by Advisory Committee before last October’s Town Meeting, I am speaking here only for myself and not reporting the opinion of any committee. Also I am not taking any position here on the proposed compromise, other than I need to see the details, and suggesting that, given the October vote, compromise may be necessary now to get something accomplished.

32 Nora England February 19, 2014 at 10:35 PM

Mr. Butler’s statement represents the core of the problem:
“The compromise premised in part on the claims of the legal risk to the Town.” 
I am also doubtful like Mr. Butler. A lot of residents may be doubtful as well. 
Mr. Rooney , the famous attorney and a Selectman, made the claim in public in the special Town Meeting of October 2013. We respectfully ask for documentation and solid evidence that he based his claims on:
1. We would like to see any evidence of direct or indirect threats to the Town by one or some of the homeowners of Barn Hollow (they denied even thinking about it)
2. We would like to see the legal analysis of different elements of legal risk to the Town. Was the analysis done by the Town’s attorney or it was done by Mr. Rooney himself in his capacity as an attorney not a Selectman? Was the analysis discussed in an open meeting in one or some  of the Town’s committees.? We would like to see the minutes of the meetings.
3. We would like to see complete disclosure of the communications (weeks prior last year special town meeting and up till now) between the developer, or homeowners and Mr. Rooney, or Mr. Cimino.

We can have public hearing or vote, but without transparency, we will be wasting our time, resources, and democracy.

33 Al Hamilton February 20, 2014 at 8:16 AM

Nora

You have the right to see most of what you ask for, if it exists, under the public records laws of Mass. This includes emails and written documentation. All you have to do is make a public records request, in writing, to the Town Admin. He then has 10 days to respond. You will have to pay for copying.

In my experience, on the municipal side of govt, our public officials are more than willing to comply with these request. The schools are less willing.

There is some question about whether the communications between town counsel and the Selectmen about a possible law suit fall under these laws if the issue is under active consideration.

34 just wondering February 20, 2014 at 9:45 AM

I’m not following how the town can be held responsible for enforcing property rights for a piece of property that it does not own. Until that transfer takes place it would seem that the town has no rights to enforce encroachment or any other violation by the neighboring homeowners. That responsibility would seem to me be on the developer that agreed to deliver a piece of property that met certain well defined conditions.

Thank you to John Butler and Nora England for responding.

35 John Butler February 20, 2014 at 11:16 AM

Having tried and failed at getting enough votes on an argument from principle, I think we should keep in mind that these few acres encroached upon by grass and shrubs are not the most important issue in Town. So maybe we can find a way to compromise and get beyond it. I hope so.

The other issue which has come home to roost is that the developers of the draft compromise decided to proceed by a method that would avoid the need to hold posted, open meetings. Maybe it was legal, maybe not, but regardless, it was, in my view, unwise.

Now, predictably, this has led to a dispute between the Open Space Committee and the “working group that didn’t post meetings” about whether Open Space Committee had a chance to provide input. Note that if they had been holding posted open meetings the simple answer would be: “All our meetings were posted, why didn’t you show up?” Instead we must endure a loud dispute about whether OSPC opinion was “invited” or not. When we operate openly and publicly, as we should, this question cannot substantively arise. Public anxiety about the outcome of seemingly secret processes, such as these, are a larger barrier to progress than any amount of procedural overhead, or listening to audience opinions, associated with posting public meetings.

I do want to be clear that, from personal knowledge of the people, I completely trust that all involved were acting as they thought was best for the Town at all times. I just think it would have been much wiser to do all of it in public open sessions. I have put a lot of effort into trying to get people to see that, mostly to no avail.

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