Annual Town Meeting: Voters object to Town starting St Mark’s Street project without easement approval (Updated)

by beth on May 10, 2022

Post image for Annual Town Meeting: Voters object to Town starting St Mark’s Street project without easement approval (Updated)

Above: Most voters who participated in Thursday’s Town Meeting opposed easements for the St. Mark’s Street and park project. (photo by Beth Melo)

Last Thursday, Town Meeting voters used two Articles to send a clear signal. The message was that Town officials shouldn’t bypass Town Meeting’s approval of easements.

The upset is over a controversial project to reroute the end of St Marks Street near the Southborough Library. It includes building a park on land in between and creating a bigger parking lot for St. Mark’s School on the other side.

The Board had treated Town Meeting voters’ approval of easements for the project as an administrative task that could be ticked off retroactively. Instead it was voters who were ticked off.

St marks easement swapThe Select Board had planned to ask voters to swap easements with St. Mark’s School which owns most of the land involved. (See image right.)

On Thursday, the Board attempted to postpone the Article to the fall without a presentation or debate. Voters overwhelmingly overrode that motion.

Then after much criticism and questioning, they voted against easements.

Voters were aware that their votes were symbolic. Based on advice of Town Counsel, the Select Board believes it has the right to continue work on the project without the easements. That was part of the issue confusing and upsetting some voters.

Last year, the Select Board chose to act preemptively, to take advantage of a state grant window. Commenter sentiment at Town Meeting appeared to be that authority over easements allows voters to ensure big projects are vetted and deserve their approval.

Questions were raised as to whether the project was ill conceived or a poor use of Town money. But the clear sentiment of the hall was that the Town’s use of “interim license agreements” usurped voter authority.

Later, voters’ message was reasserted through a non-binding Article. A Citizen Petition Article instructed the Select Board not to use license agreements “to improve private property” without getting easement approvals from Town Meeting up front.

The hall, almost unanimously, voted in favor.

Below is more detail on the discussions around those votes.

Article 25 – Easements for Reorientation of St. Mark’s Street

The Select Board placed Article 25 on the Warrant to ask voters to approve swapping easements with St. Mark’s School. On Thursday night, member Marty Healey told the hall the Board was moving to indefinitely postpone the Article.

Healey explained a “new and improved recommendation” would be brought to a Special Town Meeting in the fall. He pitched the extra time was for the St. Mark’s Park Working Group time to do more of its great work.

Patricia Burns Fiore asked how the postponement would impact the project. She noted that Select Board members had publicly indicated that by using license agreements, they could proceed without easements.

Moderator Paul Cimino initially indicated questions should be directed to the Board at their next meeting:

If the proponent of the Article is asking to withdraw it, I’m not sure we need to talk much more about it.

But with more questions from other voters, Healey said he was willing to give some answers. And opponents of the easements urged the hall to oppose the postponement in order to allow more discussion of issues.

Healey told the hall that the license with St. Mark’s to do work would remain in place even if easements were rejected. What will be done would be up to the Select Board, which he will no longer be part of.* (None of the continuing members spoke on the Article.)

Michael Weishan, a vocal opponent of the project, urged residents to vote down the motion to allow an opposition video to be played. 

Lynn McKay asked Healey to clarify whether more work would be done before fall Town Meeting. She summed up his response:

So, no matter what we vote her at Town Meeting, it doesn’t matter? The Select Board’s going to do whatever they want to do on that land?

He responded, “That’s not the way I would phrase it.”

Karen Shimkus claimed to have legal opinions stating that the Town’s interim license agreements weren’t legal. She also stressed that work began before the agreements were signed. Shimkus encouraged voters to ask to see the video. 

Pointing to language in the agreements referring to Spring 2022 Town Meeting approval of easements, Betsy Rosenbloom asked for an explanation for how postponement wouldn’t impact that.

Only a handful of voters supported postponing the Article. The hall was then shown a video (which you can watch here.)

Claims in the video included that “many grave sites of natives, indigents, and possibly even slaves, were known to have been buried outside” the Old Burial Ground walls. It followed that the project did “huge damage to the potential native burial site”. The video also blamed St. Mark’s School’s installation of a stone wall across from its entrance for creating road flooding problems the Town needed to fix.

It followed that the Town offered St. Mark’s a deal to build the school a park and parking lot “ALL at Town expense!”. It also positioned that the park and road land is owned “and always would be” by the school. It then used a History Walk to attract a state grant, then scrapped that portion of the project. (Although the Board didn’t respond to those claims last week, you can read more details and some of the Town’s counterpoints in my past coverage here.)

Following a clip of Town Counsel speaking to the Planning Board, video text interpreted that the rerouted street will remain a private way. Therefore state Chapter 90 funds can’t be used:

Now every new dollar spent to improve St Mark’s property will have to come out of OUR pocket, to the detriment of all other roads in Southborough.

It pointed out that despite repeated requests to Town officials, the question of how much will be spent on the project has never been answered. But it claimed that plant materials in the winning bid had “markups of 300-400% for plant material” including $6,693 for milkweed plants in the pollinator garden.

It ended with a claim that the project is being investigated by the State Inspector General’s office and and Mass Dept of Transportation IG.

Healey referred to the video as nonsense. He followed that sometimes there is innocent incorrect information, and “sometimes it’s straight out lies”. He said he wouldn’t make a presentation that night. Instead, in the fall the Board will bring a proposal that “will address it in a comprehensive and accurate way”.

Understanding the hall intended to vote against the Article, Cimino sought to wrap up discussion. (Worth noting here, the Warrant was long and the Town didn’t have a set plan if the meeting didn’t wrap up that night.)

But multiple voters pushed for the right to use the Article to continue speaking about the issues. Fiore said the Board was obfuscating voter rights. Debbie DeMuria asked the Advisory Committee to explain its positions.

Chair Kathy Cook explained why 4 members opposed easements. She said they felt the project wasn’t properly vetted in terms of the use of Town road money. Cook detailed that the Town has a road money budget of about $800K per year and that the project was going to cost the Town about $771K.

She referred to the Main Street Reconstruction project and linked area roads as having “cannabilized” Town money for road projects for years. She believed the Town didn’t look at the pent up needs of other road projects and determine which projects should be prioritized. They were also concerned by the lack of the “History Walk” given the grant pitch.

Cook did note that Advisory believed that the water problems at St. Marks pre-dated the school’s building of a stone wall, although it may have exacerbated them.

Andrew Pfaff explained that the two in favor of the project focused on “where we were today”. The easement swap would give the Town more land than they were giving up.

Planning Board member Marnie Hoolahan told the hall that the Planning Board had a right to vet the project and was never consulted. She admonished the Select Board for skirting voters’ questions:

The way that you are behaving is causing us to believe something is not accurate, trustworthy or credible.

Article 32 – Prevent Use of Public Funds to Improve Private Property without TM Approval

There were fewer voters in the hall by the time the non-binding petition was presented by Weishan. He asked Town Meeting members to reiterate their opposition to Select Board using the “mechanism” of license agreements to bypass voters. He said that the Board could have brought the easements to voters at the Special Town Meeting last fall before trees were cut down, but didn’t.

Healey spoke about the Board’s unanimous opposition to the Article. He said that the Board was frustrated and the details about the vetting they did would come out in the fall, “as opposed to the histrionics” and a “series of statements that just don’t comport with reality”.

Shimkus angrily stated that based on Mass case law Healey’s comments defending the legality of license agreements were misleading. She objected to his inappropriate laughing. She ended, “Don’t let the door hit your bum on the way out.” Cimino admonished the comment as “out of order”.

Al Hamilton noted that he rarely agrees with Weishan but did on this motion. He advised the Select Board that they support it:

When you find yourself at the bottom of a pit, stop digging.

Fiore followed by telling Healey and the Board that if they want respect they should give it.

There was some confusion over the Select Board and Advisory’s positions printed in the Warrant. They were votes in favor of waiting until “at Town Meeting” to decide.

Cook informed voters that Advisory was unanimously supporting the Article. A smattering of voters joined the Select Board in opposing the Article. The vote in favor was the overwhelming majority.

*Healey’s term on the Board ends with today’s election. He didn’t seek re-election for personal reasons.

Updated (5/11/22 9:30 am): I messed up the initial link to the video. Michael Weishan provided a better link (here) for directly seeing the version shown to the hall. You can also click here for the Southborough Access Media video of the Town Meeting discussion on Article 25 here.

{ 6 comments… read them below or add one }

1 Al Hamilton May 10, 2022 at 10:48 AM

The second night was indeed a bad night for the Board of Selectman (the whole board) particularly with respect to the St. Marks Triangle Project. The boards response to the Articles 25 and 32 was arrogant, dismissive, disrespectful, and condescending. Worse, they were unprepared, outmaneuvered, and came across as trying to sneak this project past Town Meeting. The board badly hurt their creditability and integrity on Thursday night.

There is a natural tension between a legislature (Town Meeting) and any executive such as the BOS. The boards actions crossed the line of natural tension into the zone of unnecessary antagonism. Here is my advice (for what little it is worth) for actions the BOS can take to remedy the situation:

1. Put a halt to the St Marks Triangle Project. Cancel any contracts and just stop. This is clearly a project that Town Meeting does not want. Ramming this project down the throats of Town Meeting will only further damage the standing of the BOS. Return the money to the state if necessary.

2. The use of “license agreements” might be legal but it is clearly seen as a slap in the face of Town Meeting. Many of the attendees at Town Meeting have long memories and believe that matters involved in real property require a 2/3 vote in the affirmative by Town Meeting BEFORE proceeding. Using a “license agreement” as an end around is an affront to the hall. Just because it might be legal does not mean it is right.

3. Recognize that it is very unlikely that any matter related to real property and this project is unlikely to secure the blessing of Town Meeting.

4. Stop spending our money within 1000 yards of the 85/30 intersection. There is a lot more to the town than this area. I am guessing that any number of neighborhoods would love to have a pocket park or playground.

We need a BOS that has the respect of the community even if we don’t agree with all the actions they take. The BOS has some work to be done to repair the damage it brought on itself.

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2 Michael Weishan May 10, 2022 at 4:24 PM

Amen, amen, amen. If Ms Braccio and Ms Malinowski continue down this route, they will both find themselves out of office a year from today, wondering “what hit their bum on the way out” to quote a TM sage.

Ever since Marty Healey was elected three years ago, the BOS went into a rapid descent towards secrecy, conspiracy, and consolidation of power. How do I know this? Because Marty Healey told me himself: in my first and only conversation with the man when I was Chair of the Historical Commission (the famous one where he screamed at me to “stay in my own lane,”) he told me point blanc that there would be no more Park Centrals or “rogue” boards under his watch, and that the BOS would be “highly interventionist and hands-on-everything.” Braccio/Malinowski continued and expanded this benighted policy. This of course is in direct opposition to the rules laid out in the Handbook for Massachusetts Selectmen:

“All too often, boards of selectmen confuse this broad policy role with meddling in the details of town government. They overstep their bounds by getting involved in the daily operations of a department; they fail to set sound written policies or do any long-range planning; or they are too quick to try to solve problems that should be handled by the administrator, by another board, or by a town employee.”

But the BOS foolishly followed the lead of the man who “knew more about X than anyone else in the state”: (supply your own X, that claim happened at least once a month) and as a result they discovered to their horror that the problem with having their fingers in every pot is that they often get burned, and sorely burned they now are from arrogance, disrespect, and ignoring the clear will of the voters.

I might also note the following. The investigation by the state is not “alleged.” It is very, very real. I know this because I filed the initial complaint myself while still SHC Chair, and I have been working with the IGO’s office as a whistleblower, supplying them with documents from PRR’s and helping them to piece together the story of what I believe amounts to serious fraud. I also know that the MA DOT is involved because the IGO’s office asked my permission to forward their investigation to the DOT. Who knows what will come of this, but ask yourself: if you or I took 290K under false pretenses from a state entity and then spent it on something else, where would we end up?)

To Mr. Hamilton’s excellent points above I add three of my own:

1) Start by firing Karen Galligan and putting Mark Purple on unpaid leave until a thorough investigation into how and who decided it was a good idea to give away a million dollars to St. Marks. This is not Galligan’s first offense. Rather it follows a pattern of incompetence that has included the needless felling of countless healthy trees, millions of dollars wasted in the DPW budget, and years and years of single-stream recycling landfilled because she failed to follow the proper guidelines. (Yes, readers, you read that right. All our recycling for years was never recycled thanks to Ms. Galligan.)

2) Restore and strengthen the DPW Oversight Committee so this kind of travesty is less likely in the future. If the current chair refuses to activate his group and assume real review after not having met for 16 months, we citizens will come to the next town meeting with a plan to remove him and reorganize the board.

3) Turn over preservation and conservation of the Old Burial Ground to the Historical Commission, immediately. The BOS has proven themselves to be dangerously incapable stewards and we won’t tolerate this kind of negligence with our most valuable historical asset.

Oh, and I might add apologize for your rudeness, arrogance and incompetence in handling our money, but we all know THAT is never going to happen.

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3 Betsy Rosenbloom May 10, 2022 at 5:11 PM

Dear Mr. Hamilton: Thank you for stating clearly what I (and others) were trying to say at Town Meeting and for your advice to the Select Board for moving forward. It is not easy for me to stand up and criticize the Select Board at Town Meeting, where we are among friends, acquaintances and neighbors. But I watched many meetings going back many months where the St. Mark’s project was discussed and I have never understood how the Select Board got us to where we are today and how the Board, through its point man Mr. Healey, can continue to ignore the public response. (Mr. Healey’s attitude toward those who question his statements and actions is particularly maddening.) There are so many troubling aspects of this project, including but not limited to: insufficient planning, a grant application for the now infamous and ephemeral “History Walk,” the destruction of priceless old growth trees (who gave that order?), the possible and unexplored destruction of an ancient native burial ground, the legally questionable and certainly unwise License Agreement, and the effort to sweep the legal requirement of an easement under the rug for another 6 months. As for the Committee to Figure Out What To Do Now, while I have nothing but respect and admiration for my fellow citizens who have volunteered their time and effort to improve the situation, the appointment of this committee reminds me of a cartoon on my refrigerator: a man is speaking to his co-workers and the caption reads “Let’s bring in more people so we can further spread the blame.” A citizen committee convened after the fact does not address the root causes and conditions that led to this situation. Select Board: please listen to Mr. Hamilton. He has given you excellent advice.

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4 John Kendall May 10, 2022 at 7:41 PM

I’d just like to have my street paved

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5 YY May 12, 2022 at 1:26 PM

I agree with what Mr Hamilton said but he put much better than I could have.

What Ms McKay said/asked was definitely my understanding of the meaning of Mr Healey’s message sitting there at Town Meeting. As much as I want to give the Select Board a benefit of a doubt/believe time will show they are doing right by the town, the tone, behavior, and the message of our votes not mattering made me vote down the postponement and vote down the article to hopefully send a clear message the Select Board need to reset on this.

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6 Kelly Roney May 14, 2022 at 3:55 PM

I think the St. Mark’s Triangle Project was illegally approved by the Select Board. Maybe someone can provide a rebutting legal theory.

Ch. 40, section 14 of the Mass. General Laws (https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter40/Section14) says, in part:

“The aldermen of any city, except Boston, or the selectmen of a town may purchase, or take by eminent domain under chapter seventy-nine, any land, easement or right therein within the city or town not already appropriated to public use, for any municipal purpose for which the purchase or taking of land, easement or right therein is not otherwise authorized or directed by statute; but no land, easement or right therein shall be taken or purchased under this section unless the taking or purchase thereof has previously been authorized by the city council or by vote of the town, nor until an appropriation of money, to be raised by loan or otherwise, has been made for the purpose by a two thirds vote of the city council or by a two thirds vote of the town, and no lot of land shall be purchased for any municipal purpose by any city subject to this section for a price more than twenty-five per cent in excess of its average assessed valuation during the previous three years.”

A license agreement is clearly a property right, though I don’t have case law examples of any previous board in Massachusetts trying this arrant evasion. A purchase is an exchange of value and need not be made in cash. Town Meeting never approved it.

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