(Updated) BOS to address questions about Barn Hollow open space and “behind closed doors” communications

by Beth Melo on September 3, 2014

Post image for (Updated) BOS to address questions about Barn Hollow open space and “behind closed doors” communications

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

At last night’s Board of Selectmen meeting, the item that received the most comments wasn’t on the agenda. It was a recent town communication questioned by residents during the public comment period.

Four residents addressed the board about a purported plan to grant “non-revokable licenses” allowing Barn Hollow residents to utilize their Open Space encroachments.

Advisory Board member Sam Stivers, acting “as an individual citizen”, raised the issue. He saw a letter from the Town Building Inspector sent to Barn Lane residents.

Nipmuc Lane resident Momen El Nesr, MD also reported that he received that letter, dated August 21. The copy he submitted to the Advisory Board states:

It has been determined that there is an encroachment upon a portion of the parcel of land. . .

Please be advised that this encroachment will be allowed to remain as it exists as it does not impair the public purpose of the land. However, any increase or expansion of any type, or future event or use of this public land will not be allowed and enforcement action will be taken.

It is expected that a Non-Revocable License to utilize this portion of land may be granted by the Town of Southborough’s Board of Selectmen.

(Click here to view the full letter.)

Stivers stated that Town Administrator, Mark Purple, informed him the letter was sent in consultation with town counsel at the direction of the selectmen.

The residents were concerned that the decision seemed contrary to the will of Town Meeting. This April, voters passed a 2/3 vote to accept the parcel as Open Space.

The commenters also complained about the apparent lack of open process. 

Stivers noted that he hadn’t seen that on any BOS agenda, discussed at the Planning Board or Open Space Preservation Commission meetings. He wondered “where this was coming from, what’s happening and why it seems to be happening outside of the public view.”

Whitney Beals commented, “I didn’t vote in favor of that article to accept that land thinking that selectmen were then going to go behind town/closed doors and work out some deal with the offending land owners.”

Beals reiterated that he believed allowing encroachments on Open Space would set a bad precedent. And Elnesr was concerned that the license would be in violation of the Open Space restrictive covenants.

Chair Bill Boland didn’t directly answer any questions last night, explaining that it wasn’t on the agenda:

So, we’re really not prepared to do anything other than, a license is something that Town Counsel could explain. . .

A license is something very specific in municipal use, not an easement.

Boland scheduled the item for discussion at their September 23rd meeting.

Selectman Bonnie Phaneuf responded to Stivers,  “I share some of your same concerns.” Phaneuf stated that she only found out about the letter on August 25th. But she supported Boland’s decision to hold off on further comments for a publicly scheduled discussion.

Selectman Dan Kolenda recalled voters had accepted the Open Space parcel “as is” and commented that it would be interesting to hear what Town Counsel had to say about the license. Selectmen John Rooney and Paul Cimino made no comments.

Updated (9/3/14 1:00 pm): I just saw that yesterday morning, the town posted Open Space Preservation Commission posted a meeting to discuss Barn Hollow for this Thursday, September 4, at 7:00 pm. It will take place at the South Union Building, 21 Highland Street.

Updated (9/3/14 2:35 pm): I inserted excerpt from and link to the copy of the letter to Dr. El Nesr.

1 Mark Ford September 3, 2014 at 12:51 PM

…I was just thinking about this very issue. I’d really like to hear how this transacted without public comment or process.

2 Al Hamilton September 3, 2014 at 1:48 PM

It is possible that the BOS met in executive session to discuss and direct the TA and Counsel to offer this solution. I believe they might be able to do this under one of the exceptions in the open meeting law, particularly if a law suit was threatened.

The relevent question for the TA is “Exactly who instructed you do this. Were those instructions conveyed by a majority vote?” Note that an individual selectman has no authority to direct any member of our government to do anything. Only the board, acting as a board can direct things and the vehicle they use is a vote.

The other interesting question, that I do not know the answer to, is that the license conveys an interest in property. My understanding is that this requires a 2/3 vote by town meeting.

This may be a good solution to a difficult problem. For the record I have no problem with the neighbors mowing the land.

3 Open Space Scandal September 4, 2014 at 3:22 PM

After watching the video stream of the Board of Selectmen meeting, It is easy to predict the selectmen behind this scandal. Most likely, they are Mr Rooney and Mr Boland. Both men were very embarrassed, tense, and avoiding eye contact by hiding behind their laptops.
Mr. Rooney, the mastermind of the last year compromise, was speechless. Mr Boland, the chairman, was unable to comment because he claimed that he was “not prepared” which is unacceptable excuse for the head of our local government. Both men couldn’t have any courage to explain the issue or answer any question.

Why did they abuse their authority without vote from the BOS and instruct a town officer to provide cover for few residents’ violations?

4 Al Hamilton September 4, 2014 at 5:29 PM

First, it would not have been appropriate for Mr. Boland or any other Selectman to discuss this matter at the meeting, it was not on the agenda. The only proper thing to do was to recognize that the matter needed discussion and to schedule it for a future meeting.

Secondly, I do believe that over the past years the Selectmen are on record as asking the TA and Town Counsel to try and find a solution to the Barn Hollow Problem. The problem did not just go away because Town Meeting voted to accept the land. I think that if an individual selectman or any other person offered the “License” idea as a means of resolution the TA and Town Counsel might reasonably consider it as an option worthy of investigation since they have been tasked with finding a solution.

We should also consider that the Building Inspector, with direction from the TA and Town Counsel may have been well within his rights to permit continued mowing. Our zoning and development by laws envision 2 classes of open space. Space that is to be left “undisturbed” and space that is intended for park type use. In most public parks that means mowing. We might consider that this proposal has the neighbors helping us maintain some part of the open space in a park like condition, a public good at no cost to the taxpayer.

Certainly if a “license” is to be granted it should be approved by the BOS as a matter of policy and discussed in public. But we should consider that this mess has been around for a long time and finding a solution that keeps us out of court and allows us to behave as good neighbors is desirable. After all, we have a pretty consistent track record when we go to court, we lose.

Finally, you accuse Mr. Boland and Mr. Rooney of cowardice in not explaining themselves (even though they would have to break the law to do so) and yet aren’t you at least as cowardly by attacking them while hiding behind a sobriquet.

This is a tempest in a teapot. We really have much bigger issues to discuss.

5 Resident September 5, 2014 at 8:38 AM

The problem is that “continued mowing” is actually a nice way of saying continued personal usage and perceived ownership of the land. I bet that if there was a map of these parcels at the Town House and people started showing up on weekends to picnic and play ball on the land, the adjacent home owners would stop mowing it immediately. We voted at TM to retain town ownership of these parcels and no one should be going behind the backs of town residents to allow the adjacent home owners to do so much as pull a weed on that property.

I also disagree that we have “bigger issues to discuss.” Town officials acting against the democratically expressed will of the people is the biggest issue I can think of.

6 Al Hamilton September 5, 2014 at 10:42 AM

You are correct, TM voted to accept the land. But this all we did. Once accepted, the responsibility for management of the parcel falls to the TA under with the supervision of the BOS. If the TA believes that granting a license to mow is in the best interest of the Town and the BOS support him the they are both acting within their authority.

There is no special right of personal usage that is granted. The land itself is public property and you can picnic on it if you wish. Curiously, I believe that the TA might be able to rent the land just as he can rent a town facility to a private group for a meeting.

There really is no scandal here. Town Meeting voted to accept the parcel and that is all that Town Meeting voted to do. Town meeting did not vote with respect to any special conditions. Indeed Town Meeting has voted to permit park like usage of some fraction of our open space.

Should this proposed license be discussed in a public meeting – Yes. Will it be? Yes it is on the agenda. Is this a reasonable solution to a nasty ongoing problem? Yes it is in my opinion.

7 Al Hamilton September 5, 2014 at 8:13 AM

The more I look at this issue the more I believe that the Building Inspector, TA and Town Counsel were acting within their authority. When we passed the Town Admin By Law we empowered the TA to manage. We gave him specific authority to manage town property.

“The Town Administrator, subject to the authority of the Board of Selectmen, shall have full jurisdiction over the rental and use of all Town facilities, except schools and the library, and shall oversee all Town capital maintenance, construction, repairs and rental/use of Town facilities, consistent with the Code of the Town of Southborough and state statutes.” Article IX Section 27.26B3

So, I believe the TA has the authority to issue this “License”. The BOS can choose to override his decision but absent that the TA is doing the job that Town Meeting charged him to do.

Far from being a scandal, this is the TA doing the job the TA was hired to do under the authority we gave him.

This solution appears to be in concert with our open space by laws, consistent with the TA’s authority under our by laws, helps our neighbors with a difficult problem and keeps us out of court. It does not get much better than that.

8 Open Space Scandal September 5, 2014 at 8:14 AM

Al Hamilton,
You made 2 very good questions in your first post which are great questions.
You wrote:
” 1) The relevent question for the TA is “Exactly who instructed you do this. Were those instructions conveyed by a majority vote?” Note that an individual selectman has no authority to direct any member of our government to do anything. Only the board, acting as a board can direct things and the vehicle they use is a vote.

2) The other interesting question, that I do not know the answer to, is that the license conveys an interest in property. My understanding is that this requires a 2/3 vote by town meeting.”

You made illogical U Turn in your second post to undo your first post. You suddenly became the defender for the Selectmen to rationalize their highly criticized behavior.

What I want is to hold any elected officials accountable for their doing. I am waiting and the people who spoke in the meeting for full disclosure of the issue since it started last year. I hope the disclosure is supported with letters and emails exchanged.

It was unkind of you to call me a coward because I am using an Alias like everyone else. Your name calling is a distraction of this important issue.

9 Al Hamilton September 5, 2014 at 12:27 PM

Yes, I asked 2 questions and then I proceeded to do some homework to try and answer them.

Question 1 – I believe the BOS is on record as asking the TA and Town Counsel to find a solution to the Barn hollow problem. That problem did not go away when the town accepted the land. I further investigated and believe that the TA has the authority to manage the land and to permit mowing under our by laws. It appears to me that he also has the authority to grant the license subject to a veto by the BOS.

Question 2 – I believe that the so called “License” does not convey an interest in the land. No special rights to use the property are conveyed merely the opportunity to maintain the land in a “park like” condition which is clearly one of the intended uses of of open space under our by laws.

I am as big an advocate of transparecy and open government as you will find. But, I am also an advocate of effective government. I believe we have properly delegated authority to the TA and in this case he is properly exercising it. The matter is on an agenda and is going to be discussed in public.

I am sorry if I hurt your feelings, but you called Mr. Boland and Mr. Rooney cowards for not violating the open meeting law and discussing the matter when it was not on the agenda. You did this all from the safety of the shadows. Yes many people post anonymously but many others show the courage of their convictions and say “this is who I am and this is what I believe” I for one pay a lot more attention to the latter than the former.

10 Open Space Scandal September 5, 2014 at 3:12 PM

I gave you credit for the 2 good questions that you asked. You can regret writing them, but you cannot take them back.
The answers are expected from the involved Selectmen not from you. They need to answer honestly long list of questions. The public want facts not defensive rationalization.

11 Jim Hegarty September 5, 2014 at 11:34 PM

Open Space Scandal-

Al Hamilton was right to address your posts. Whether you agree or disagree with Al, his posts are well thought out and are brutally honest.

If you have questions about this process, go to the scheduled BOS meeting and raise these issues in public. Calling members of the BOS cowards and writing “Both men couldn’t have any courage to explain the issue or answer any question “detracts from the message you are trying to convey.

If they had tried to comment on an issue that was not on the agenda then people would be criticizing them for that! Both John Rooney and Bill Boland have thick skin. Both will explain their position, whatever that is, if you simply call them up or send them an email. Whenever I have had questions about any town activity, my first step has been to contact someone directly. And most of the time, the information they provide clarifies the issue and answers my question.

I completely understand why some posters feel the need to hide their identity on this and other blogs. But there is a substantial history of folks throwing mud and making inflammatory comments and unfounded allegations on blogs. Sometimes it is just well intentioned people mistakenly posting incorrect information. But sometimes it has been just dirty pool at work.

I haven’t formed an opinion on this issue because I do not know the facts yet.

I plan to attend the next BOS meeting and I look forward to hearing your point of view and questions at the next BOS.

Sometimes I’ve just got to wonder about people. Here we are debating about something like this when we should all be thinking about the death of 28 year old Northboro resident U.S. Army Specialist Brian K. Arsenault and his family.

Jim Hegarty

12 Belle September 6, 2014 at 7:29 PM

Thank you Jim. Our thoughts should all be with that family.

13 jim foley September 6, 2014 at 8:47 PM

Jim I couldn’t agree more. My heart breaks just thinking about this tragic loss. I am truly grateful to him and his family for his bravery and sacrifice . His efforts to rid the world of such evil so we can all live safe at home will always be in my thoughts. May he rest in peace.

14 Open Space Scandal September 7, 2014 at 8:11 AM

Mr Jim Hagarty,
My thoughts and prayers for Brian’s family. He sacrificed his life for all of us to keep our values and democracy.

First of all, I did not use the word Coward and I did not call anyone Coward. I don’t know where you read it. The expression “Both men couldn’t have any courage to explain the issue” does not mean they are Coward. It means they could not stand by their action and communicate with the speakers in the meeting.

Second, I reviewed the video stream again. The speakers’ comments were under Public Comments which is integral part of the BOS agenda. Selectmen have always responded with confidence to any question by the public. It is not meant to let the public express concerns and dissatisfaction, and “by law” to give them the “silence” treatment. Al Hamilton claims that the Selectmen cannot explain themselves “even though they would have to break the law to do so”.

Third, the title of the post is “behind closed doors” communications. This kind of communication and politics are always causing problems. We had similar problem recently with DPW layoffs. It triggered negative public reactions because of lack of transparency. Concerned residents were attentive and reversed the injustice.

Fourth, some of the Selectmen have crossed boundaries with Barn Lane residents. The issue becomes the town’s priority to keep their encroachments on public land to have bigger yards. Similar violators in town are getting no such treatment or giving no license.

Finally, I am only asking to hold Selectmen accountable for their actions behind closed doors and to answer serious concerns that their actions went against the will of the voters of the last Town Meeting.

15 beth September 7, 2014 at 12:24 PM

To clarify the headline: “behind closed doors” is not meant to be an accusation by me. It refers to a publicly made accusation, which the selectmen say they will respond to in their next meeting.

16 Southborough Res September 8, 2014 at 12:57 PM

Well Mr. President for your first point I guess it depends on what your definition of “is” is.

courage [kur-ij, kuhr-]
1. the quality of mind or spirit that enables a person to face difficulty, danger, pain, etc., without fear; bravery.

coward /ˈkaʊəd/
1. a person who shrinks from or avoids danger, pain, or difficulty

Not that I care but if courage is the ability to face difficulty, and a coward is someone who shrinks from difficulty then to say they don’t have courage seems to be the polite way of saying coward (IMO).

P.S. I don’t care one way or the other how this Open Space issue plays out I was just enjoying the comments. Also, I seem to think that Mr. Hamilton does take a “matter of fact” path on his posts (at least for this topic I’ve read), and does try to gather information and comment in an educated/process minded manner. I do learn from his posts as to how town politics is supposed to function a matter of procedings (opinions on the topics excluded). Thank you Mr. Hamilton.

17 Al Hamilton September 5, 2014 at 10:20 PM

I don’t regret asking the questions at all. I did the homework and came to a conclusion. The conclusion that I came to was that the TA acted within his authority and consistent with the laws that were passed by Town Meeting.

18 Al Hamilton September 8, 2014 at 8:18 AM

Out of respect for Spc Arsenault, his family, and friends, who have my sympathy and condolences I am going to refrain from our petty squabbles until he his laid to rest.

19 Resident September 8, 2014 at 9:40 AM

This I do not understand. I too am very sorry for all the friends and families who lose loved ones serving in the military. Their sacrifice is enormous and I wish to God that it was not necessary. I, like many, often question the necessity of the losses our country has suffered in the past decade.

However, these losses were suffered in the defense and furtherance of our democratic values and way of life. Isn’t that precisely what this conversation is demonstrating? We are posing questions to our local officials and holding them accountable to their constituents. To call such a conversation “petty” is to lessen the importance of the very rights for which our military fight and die every day.

Engaging in such a conversation honors him, but I agree that calling each other names and other such pettiness does not.

20 Observer September 8, 2014 at 5:23 PM

In the last BOS meeting, there were very rich statements that grasped my attention. I would like to share them with my thoughts underneath.

“The 2/3 of votes in Town Meeting speaks volumes”
The voters want the Open Space to stay intact as it was envisioned and recorded. They were very aware that the neighbors in Barn Hollow want to mow the encroachments. More than 2/3 of the Town Meeting said : YES for Southboro to accept the Open Space as it was on the approved subdivision plan and effectively said: NO for mowing and NO for giving exceptions even, if there is a threat of lawsuit.

“It will be a Bad precedent”
For the fairness, other Town residents should be giving the same license to mow the open space adjacent to their lots. It doesn’t make sense to say mowing the Open Space in Barn Hollow doesn’t impair the use of public land, but it does impair it in the rest of the town’s Open Space.

“It is an Old Wine in New bottles”
I like this saying as it represents the story of Barn Hollow Open Space. It was first Compromise with land swap, then Compromise without land swap, followed by modifications. Now it is Non-revocable license.
There are still Unused terms or “new bottles” like: Permit, Authorization, Easement, Warrant, Decree, Clearance, Allowance, Mowing Privilege, Mowing Trust, Mower Pass, Endorsement, Agreement, No Mowing Restriction, Consent, and Release of Covenant..etc I hope we will not go through each term or bottle as an attempt one after another by the town officials to sell us the Old Wine.
The Old Wine is the neighbors of Barn Hollow want to keep the Open Space encroachments as part of their backyard.

“During recent election, everyone supports transparency”
It is true. Transparency is great but election time is over.

“Why things happen behind closed doors”
The Selectmen denied any discussion of Barn Hollow Open Space License in the Executive sessions. “Behind closed doors” will involve the 5 Selectmen which could be a large crowd.
The important issues easily discussed between 2 or 3 Selectmen back and forth by emails, and less likely by phone. When the matter is perfected, a vote behind closed doors will be in order.

“It is Violation of the Covenant”
I really want to know about this one. If a Covenant really exists, how the town will give license for mowing part of the land while the Covenant prohibits mowing.

“Issuing a License, is it a bad or good thing?”
For the Town to issue a License, the licensee has to apply first. We like to see the application and the policy covers the eligibility, the determination process, the terms and conditions of the license, the fees. License is by its nature a privilege which is revocable. Why this license is non-revocable. I am curious when and how the neighbors applied.
The building inspector doesn’t go around town and issue permit or license as surprise gifts to residents with encroachment or violations.

21 southsider September 10, 2014 at 3:49 PM

I’m tending to agree with those who believe that Town Meeting’s vote to accept this property was done with the understanding that the land would revert to an un-mowed ( is that a word? ) condition. I think the argument that once we accepted the land, the TA could do anything he wanted to do in the management of our Open Space is simply identifying a loophole to circumvent the obvious preference of TM.
If the Barn Hollow residents knew they’d be allowed to maintain the land, there never would have been the original dispute.
I was there and heard all of the debate and I do think TM’s intent was very clear and that intent is now not being followed.

22 Al Hamilton September 18, 2014 at 3:02 PM

There has been a lot of talk about “The will of Town Meeting” or the article was passes with “understandings”. We should be terrified of this concept.

First, there is no such thing as “The will of town meeting” Town meeting is a legislature. It acts by passing or not passing the articles and amendments before it. Only the words, as written, in the articles carry any weight. In the case in question the words state that TM approved the acceptance of a parcel of land and that is all.

To be sure there are lots of fine speeches made as part of the debate but those speeches are intended only for the purpose of asking questions and persuading our fellow town meeting members. Those speeches have no special standing with respect to the legislation. We should vigorously resist the idea that just because someone made an impassioned plea on the floor that vision takes precedence over the words actually approved.

To prove what a horrible idea it is to impute the “will of Town Meeting” based on the debates on an article let me offer the following proof. I regularly bloviate on the floor of Town Meeting. If I speak in favor of a particular article does that mean that my vision of what it should mean should get special precedence? If the results of the last election are any guide an awful lot of people would agree that was a very bad Idea and I would have to agree with them.

No, in this case the only thing Town Meeting did was accept a parcel of land nothing more nothing less.

23 native September 18, 2014 at 5:14 PM

When TM passed Article 16 (below) it was my understanding that it was accepted as “open space”, which would not be licensed back to the homeowners for their exclusive use that I understood to be in violation of the agreement between the developer and the town when the neighborhood was approved by the town.

Would a reasonable person really believe the intent of TM in passing Article 16 was to enable the TA to find another way to allow the homeowners to enjoy the exclusive use of property that was deeded as open space?

ARTICLE 16: To see if the Town will accept a parcel of land located off Fisher Road and Barn Lane as open space. Said parcel consists of 7.66 acres or 333,554 square feet and is shown on a plan entitled “Roadway Acceptance Plan of Barn Lane & Nipmuc Lane in Southborough, MA” prepared by Connorstone Consulting Civil Engineers and Land Surveyors, dated August 3, 2012 and revised through January 3, 2013, a copy of said plan is on file with the Board of Selectmen’s office and the Town Clerk’s office, or do or act anything in relation thereto.

24 Al Hamilton September 19, 2014 at 2:30 PM

It was not accepted as “open space” The wording of the article is clear. It was accepted period, full stop. What a reasonable person might or might not think is not relevant, the words speak for themselves.

If someone meant that the parcel should remain undeveloped and not mowed then they should have offered an amendment to the article to that effect. Lacking that it is not part of this piece of legislation.

Once the parcel is accepted the responsibility for managing it falls to the Town Admin. This responsibility is called out in the Town Admin By Law. His management of the parcel will be constrained by the following

1. Any deed restrictions. This parcel may or may not have a conservation easement (I think that is the right term) that would restrict certain activities.

2. Any formal agreement that was in place between the previous owner and the Town with respect to the permitted uses of this parcel. I would assume that this would be found in writing.

3. Any State Environmental laws which would prevent certain activities

4. Any By-Laws that would prevent certain activities

5. Any Policy Instructions from the BOS.

The open space provisions in our by laws provide for both “undeveloped” land and “Parks”. My conclusions from reading our By Laws (which were all passed by Town Meeting) is that provided the Town Admin stayed within the bounds of the 5 points above he is completely within his rights to permit mowing and to confer a license to mow.

This foggy notion that just because someone might have thought they voted for something that the words do not actually say we should reinterpret the words is very scary.

If you want to prevent mowing on this parcel then write an article to that effect and get 10 signatures and it will be on the next ATM. If Town Meeting agrees then there will be no doubt.

For the record I voted against the acceptance of the parcel.

25 Student September 19, 2014 at 8:19 AM

Southsider and Native,
I am 100% supportive to your opinion. Al Hamilton is missing the point.
What comes after ‘ accepting a parcel of LAN by the Town? We look ti other legislative that we’re passed deeming the same thing. We’re these people granted the right to mow that land? We’re they granted license to violate the bylaws of the Open Space? If they were not, why do the Barn Hollow residents get the rare gift, if the rest of town does not.
When the Town Meeting accepted the parcel of the land as an Open Space. The voters accepted the land to be also used according to all the bylaws, covenant, and all the plans and documents recorded in Registry of Deed.
When the Town Meeting accepted the parcel of land, it was clearly the voters wanted the same rights and responsibilities of other abutters to other Open Space areas in town to be applied upon Barn Hollow lots owners.
If some get a License, violating the bylaws and recorded deeds, to use the town land as part of landscape to increase the value of their properties., shouldn’t all residents of Southborough get the same Priviliged Gift? What does it say about your legislators and local government, if they break the existing laws and most important don’t allow the equal treatment to all residents.

26 Student September 19, 2014 at 8:24 AM

Sorry for some mistakes. (We’re) correction is why are

27 Just Curious September 19, 2014 at 1:42 PM


I find this topic to be a very unusual and interesting discussion.

Some of the posters express their opinion that this issue is simply a “right or wrong issue.” Some have written that they attended TM, listened to “all” the arguments and they believe the “intent of TM” is not being followed. For those who claim to have listened to all the points of view, take a moment and try to list as many details of each presenter’s opinion. I listened to everyone and I can’t even tell you how many speakers they were let alone accurately describe their opinions!

Mr. Hamilton makes a very cleverly simple argument that there is no such thing as the “intent” of TM. He wrote “Only the words, as written, in the articles carry any weight.”

There are only three certainties regarding this issue:

1) The procedure that ALL of our Town officials and boards followed regarding this parcel of land has been a disaster. Yes – EVERY Town entity involved has made mistakes. Is there any one entity that can say that if they had to do this all over again, they would do everything in the same way? Nope.

2) TM voted to accept a parcel of land as Open Space. Nothing more and nothing less. How the Selectmen accomplish that will be interesting to see.

3) Re the mowing issue, there are MANY parcels of open space land in this town with small sheds, small walls and, some are even mowed! And guess what? The world has not stopped turning, the Red Sox continue to lose, Fay School parents still speed on Main St. after dropping off their future corporate raiders, and we still live in a really nice place.

I am glad to see that the current BOS are thinking of creative solutions to problems in this town. I thank them for taking the risk to be criticized for trying to find a solution that would also allow the land to be taken as open space.

28 Mark Ford September 10, 2014 at 3:53 PM

Aside from the many legitimate issues raised above, I’m concerned that the developer faces no sanctions. They apparently marketed and sold the properties under false pretenses–the borders of the properties themselves were misrepresented. If I remember correctly, the developer initiated a discussion with the town to mitigate that misrepresentation by suggesting that another parcel of open space land be given by the developer to the town…so what happened to that? Shouldn’t the developer pay some sort of penalty?

I continue to believe that the beef here is between the owners and the developer, and that licensing the owners’ use of town property is a bad precedent indeed.

29 Open Space Scandal September 12, 2014 at 4:35 PM

It is a breath of fresh air to read the comments of Resident, Observer, Southsider, and Mr. Mark Ford.

30 Student September 19, 2014 at 5:46 PM

I don’t know what the issue Mr Hamilton is debating.
A land is accepted as an Open Space. It is to be used as an Open Space. Each subdivision has a part of its land would be deeded to the town as an Open Space. Obviously this land is recorded in numerous documents and deeds as Open Space. Other neighbors cannot use it or landscape it. The use of the land has to follow the bylaws of Open Space. It is also restricted by a Covenant which clearly permit and prohibits activities by the Town. No personal use for landscape or yard expansion is allowed.
It is an insult to the voters of Southboro to claim that the Town accepted the land for any use and not necessarily used as an Open Space. In reality all points from 1 to 4 are met.

For the sake of the debate, say this land was accepted for any use. Why some residents get “license” to add land to their yard and effectively increase the value of their properties? Why other residents will not get the same? How it happened? How many non revocable licenses to use restricted public land for individual use were ever issued in Southborough, in Worcester County, or in Massachusetts? Did any Past Town Meeting passed legislative or bylaws to issue licenses to give to homeowner to use public land for their individual use? Is managing the land by Town Adminstrator meant to be able to give away public assets to others by issuing Easement or Non revocable license? Why is it non revocable license? Does it mean like Easement? If anyone hurts on public land within the license area, who is liable? Why was it done secretively? Will my family get a letter from the building inspector to give them “Free” ” Gift” license to use public land for our own use without applying?
I think the public need to know the truth by documents and honest disclosure by the Town officials. Reading Blogs defending the Town Officials is useless and confusing. May be one of the officials can answer some questions. They did it before.

31 beth September 19, 2014 at 8:10 PM

You can expect to hear answers from Selectmen this coming week at their official meeting. So I wouldn’t expect to hear something sooner in blog comments.

“Barn Hollow Open Space” is on the agenda as promised for Tuesday night’s meeting. It’s slated for 6:45 pm.

You can see the agenda here: http://www.southboroughtown.com/Agendas/BOSAg092314.pdf

(There were no related materials in the publicly posted meeting “packet”.)

32 Al Hamilton September 20, 2014 at 9:34 AM

I hope we can all agree that our policies and procedures should apply to all and not just those we single out for special treatment. The Barn Hollow incident lays bare our need for a uniform policy on open space. We all know that there are dozens if not hundreds of encroachments in town. To facilitate this I urge swift adoption of this modest proposal:

The BOS shall appoint a special constable to assure No Open Space Encroachments by Yards. This officer shall be known by his/her acronym as the NOSEY Officer.

The NOSEY Officer shall, on a regular basis but not less than once a year inspect each yard in town for the purpose of determining its encroachment potential. The NOSEY Officer may not enter a domicile but may inspect outbuildings for ENCROACHEMENT DEVICES which are any devices which when applied to open space could disturb the flora or fauna of the open space. Such devices could include but are not limited to scythes, shovels, rakes, wheelbarrows, skates, sleds, toboggans and worst of all mowers. Any property owner found in possession of these ENCROACHMENT DEVICES shall within 30 days obtain a license to possess these devices from the Town Clerk and shall register each ENCROACHMENT DEVICE with the NOSEY Officer.

The NOSEY Officer shall regularly visit each open space parcel to determine if any encroachment has taken place. An encroachment shall be any disturbance of the flora or fauna or surface or sub surface of the parcel. Examples of said encroachment shall include, dumping of leaves and brush, the planting of trees, building and maintaining trails, mowing or clearing, the building of play forts, clearing ice for skating, sledding and tobogganing, or the use by livestock or pets for pasture, grazing or waste disposal.

The NOSEY Officer shall upon discovering a person guilty of encroachment shall on the first offense require all of the residents of the property encroaching to wear a 4 inch red letter “E” so that all the decent people of the town may shun them as reprobates. Repeat offenders shall be consigned to special stocks erected by the Transfer Station which signs hung around their necks describing their crime. These might include “Leaf Dumper”, “Hockey Player”, or worst of all “Mower”. In order not to cross the Cruel and Unusual threshold, the public is encouraged only to pelt them with soft or rotten vegetables. The urge to stone these hardened criminals should be resisted,…..For Now.

33 Open Space Scandal September 20, 2014 at 2:54 PM

This sarcasm is inappropriate and doesn’t help in dealing with the serious issues we are facing. Our voters are being fooled by illogical jargon to reverse their will. Many residents feel discriminated upon that they will not get similar licenses to legalize their encroachments or to extend their yards in the future. There is rewards for lack of respect of the law. The BOS and Town Administrator are by no means transparent. Their actions to issue license for prohibited activities of the open space are disturbing in different legal, moral, and ethical levels.

34 Mark Ford September 20, 2014 at 4:34 PM

I think it’s fine, and readers will know it was a tongue-in-cheek response. In an earlier post, Al mentioned a petition initiative that someone could spearhead to offer a clarifying warrant article that would delimit what could be done with that, or any other, open space parcel. I’d add that a fairly small number of signatures on a petition could force a town meeting to be held in short order to address this, or any other, issue.

If you’re really concerned with the “open space scandal,” I hope to see you gathering signatures at the Transfer Station.

Could someone remind me what would have happened had we not accepted that parcel?

35 Al Hamilton September 21, 2014 at 10:47 AM


My understanding is that the Parcel would have remained with the developer (who would have to pay taxes on it). The BOS and TA would have had the opportunity to continue to explore solutions to this mess that they could have presented to Town Meeting. That is why I voted not to accept.

36 Al Hamilton September 21, 2014 at 10:45 AM

Clearly we do not agree on how serious this issue is. I think it is a tempest in a teapot and you feel it is an existential threat to our way of life.

My proposal is only half tongue-in-cheek. Clearly if we are to have a strict and uniform non encroachment policy we will need some form of police authority to enforce the policy. Otherwise it is just meaningless words.

While we are at it, we do have precedence for private parties being given some form of permission to encroach and cause disturbances on open space. The “Southborough Belties” have in the past regularly grazed, trampled and eliminated on town own conservation land. These animals, which are owned by private parties, cause far more disturbances than the mowing you are complaining about. I am perfectly happy to let this practice continue I think it is a good thing. But, I am struggling to see how this situation is different from the one you are objecting to. If you want to punish the Barn Hollow encroaches then I think you had better call the butcher for the Belties.

Let me set the record straight.

1. The Open Meeting Laws do NOT apply to the actions of the TA except in some very narrow circumstances. He is free to meet with and discuss a variety of issues in private, with anyone he sees fit in pretty much any forum he sees fit. (The exception is a discussion between 3 or more selectmen or a quorum of other elected or appointed officials).

2. No license has been granted in this case as of yet.

3. If you believe that the law has been violated, please tell us the specific law that is being violated with a link to the wording so we can all see. Please tell us who has violated this law.

Instead of this sad spiral into a lose-lose situation perhaps our Government could work with neighborhoods and develop a plan for the use of open space parcels. Our By Laws (which are being ignored) envisions that some part of our open space could be mowed. Why not work with our neighbors to develop plans to manage these parcels instead of treating them like criminals and vermin. Win-Win beats Lose-Lose every time if we all just take a step back and give just a little.

37 Art Fay September 22, 2014 at 6:41 AM

(not sarcasm) Doesnt the town already have something like this in the Fence Viewer(s)? Admittedly I may be wrong.

38 All I'm saying is September 21, 2014 at 11:28 AM

Mr Hamilton’s suggestion will not solve this issue. The only way we will stamp out this CRIME is to have the town seize the remainder of the OFFENDER’s yard as open space. Since over 2/3rd of the town is now parks, water or open space, we will not stop until we take it ALL!!!

Then we need to force the OFFENDERs to attend mandatory re-education camps held every Saturday morning at the Red Barn. (At least they’ll get great coffee!)

We also need to arrest everyone whose dog poops while walking them on Open Space land, even if they clean up.

Where does this whole mess stop? Is the Open Space Committee going to ask the Police to borrow their new Taser weapons? As a senior citizen, could I get a property tax reduction if I volunteer to join the SOSC (Southborough Open Space Corps) ? Can I get a blue light on my pickup truck?

Look at the homes on Macneill Dr that back onto White Bagley Rd. DCR made them put fences up at the end of the DCR property on the west side of the road. (Otherwise, DCR was going to put up a chain link fence, barbed wire not included.) Does that kind of mentality make any sense? That land was not being used by any of the homeowners. Why not let them mow it if they want.

Could some of the angst that is behind Open Space Scandal’s overwrought postings on this topic be jealousy of the wealthy homeowners who live on Barn Hollow? Would this topic get any traction at all if the homes were owned by long term residents or lower income people.

Just asking.

39 Student September 21, 2014 at 12:07 PM

The bylaws, the recorded deeds, plans and covenant are clearly prohibiting encroachments and, consequently, any license or easement continuing any violations of Open Space lands. Gathering signatures at the Transfer Station to petition for a warrant article at TM in order to vote to respect the Law is a bizarre concept. Southborough residents haven’t dumped the bylaws and recorded documents or recycled the Law at the Transfer Station. I hope elected members of BOS and other town officials haven’t done that yet.

40 Al Hamilton September 21, 2014 at 3:57 PM


Then clearly, you are in favor of preventing the “Southborough Belties” encroachments as well. If the standard you are proposing is no encroachments ever then that is the logical conclusion.

41 Student September 21, 2014 at 7:28 PM

I am in favor to prevent any legalization of any encroachment. However, BOS didn’t grant the non for profit org. of “Southborough Belties” an exclusive use of the portion of open space by non revocable license. The portion of open space that the cows are using is not restricted by a covenant. The cows encroach by wandering, but the human beings encroach by landscaping the land to have bigger yards and higher value of their properties.  My parents are not wealthy, but they seem OK with the reality of our society that wealthy people are getting favorable treatment by the government and lawmakers. I still have little hope for equality. I don’t know when I will lose such hope.

42 Al Hamilton September 22, 2014 at 7:18 AM

Given that the license does not exist, I do not know where you get the idea that it grants exclusive use rights (which I would oppose). I believe the neighbors should be given permission to mow, but no other special rights.

As for the cows, I believe the Breakneck Hill property has a conservation easement, which a common form of restrictive covenant. So, if you want strict non encroachment then the Belties have to go.

I grew up doing farm work and have spent a fair amount of time shoveling manure. Cattle do far more than wander. The graze which cuts the vegetation, they tear up ground, particularly when it is soft, they wallow in streams that feed public water supplies. Each animals fecal and urine output could easily rival a family of 5 or 6 which will run off into streams and waterways untreated (this is in fact a very real problem) and ruminants are a major source of greenhouse gasses (I am not kidding). We should not romanticize the impact these animals have on the environment.

I am not picking on the Belties, I like them and think this is a very reasonable use of the property. I think it is important for our children to understand where their Big Mac’s come from.

It would a low point in our history if Town Meeting resorted to bullying this one set of families by passing a non encroachment by law that only applied to a single property. No, if you want strict non encroachment then it must be applied to all and the Belties have to go.

43 Mark Ford September 22, 2014 at 1:47 PM

It might also be a low point in our history if we gave certain residents rights to mow and use land they don’t own when most of the town land abutters don’t enjoy that right. Do we allow encroachment in general? As to the Belties, I’m not sure how that agreement was structured. I thought they were allowed to graze on certain parts of the land.

TONGUE-IN-CHEEK WARNING: Hey, let’s allow the encroachment, so long as belties can graze on the land! It’ll save on mowing.

44 Al Hamilton September 23, 2014 at 12:44 PM


I think goats would be better at grass trimming.

I am not in favor of granting any special or exclusive use rights, only the right to mow.

If you read our zoning by laws, only about 10% of our open space must be reserved as “natural” the balance can be managed. The By Laws clearly intend that the space can be used as “Common Space” or for recreation. This could include playgrounds, ball fields, dog parks, tennis/basketball courts, skate parks or just lawn. It is all there in black and white and approved by Town Meeting. However, I must confess, I have not made an offering to the soothsayers that know what was really meant.

The other reality is, Belties aside, there are lots of encroachments on “open space” all around town. Maybe instead of demonizing our neighbors who just want to use the open space in their neighborhoods we should work with them and develop a management plan (Our zoning by laws are explicit on the expectation that some portion of open space will be managed) that might include the neighbors mowing a portion of the space that can be used by the public.

I know that is not as much fun as calling our neighbors names and accusing public officials of misdeeds but it is far more useful.

45 Mark Ford September 23, 2014 at 3:20 PM

I’ll endorse any reasonable idea. Al, you seem quite convinced that there are lots of encroachments on “open space.” Our town policy should be clear, and enforced. If we’re to relax the definition of encroachment, so be it–let’s just put forth a reasonable policy and enforce it. But let’s be sure the policy doesn’t discriminate against the conservative among the townspeople who have been playing by the rules–if a “mow and play in your yard” rule is in effect, it should be allowed throughout the town. Then of course we’ll have residents taking the next step and moving swing sets, sheds, etc. onto that mowed yard. Then what?

I’m going to go out on a limb and presume that the drafters (and voters) of the zoning bylaws did not expect “common space” to mean additional space for the owners of the abutting property, nor do I imagine “recreation” meant family croquet games held by those same owners. I’m not calling neighbors names or accusing public officials of misdeeds, but if individual yard lots are to be increased, the town should be compensated for that.

We might have to agree to disagree here, Al.

46 Resident September 24, 2014 at 2:07 PM

Mark, thank you for saving me the time of drafting a reply. I agree 100%.

47 southsider September 24, 2014 at 3:15 PM

It’s interesting that the conversation has shifted as it has. The more I think about this issue, the more peeved I get that our Selectmen allowed the TA to grant this license.
Those Selectmen were at TM and there really was no mistake about the intent of the majority.
To allow the TA to wordsmith and loophole his way to granting what the TM clearly rejected strikes me as either a complete lack of oversight or a simple disregard of the TM vote.

48 beth September 24, 2014 at 5:39 PM

Did you see the updated story posted today? Apparently this was the selectmen decision based on town Council advice, before Town Meeting. It wasn’t from the town administrator, it was from the building inspector. Not in the story, but mentioned at the meeting, that falls within the purview of the building inspector’s responsibilities.

49 southsider September 25, 2014 at 12:23 PM

“.. before Town Meeting.” !!!
They knew they were going to allow this “..before town meeting.”

Seems like that might have been worthwhile information to share with us all. Or am I mis-understanding something here.

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