St Mark’s Park Update: Land Swap MOU and Design Planning (Updated)

Board may vote Tuesday on legal agreement that has raised concerns; Group working towards agreeing on design without spending more on concept plans

Above: At their next meeting, a Working Group will continue discussing design ideas for the park including concepts recently submitted by members and residents. (images cropped from meeting materials)

The Select Board is scheduled to approve a legal agreement for a land swap with St. Mark’s School. But some have raised concerns about the timing and wording that leaves an underlying “license” for the road, park, and parking lot project in place if Town Meeting rejects the swap.

To help put the messy project behind them, the Board is pinning its hopes on the St. Mark’s Street Park Working Group’s ability to present a design concept the public will get behind. As of their last meeting, the group seemed to be getting closer to reaching a consensus.

Below is my update on the latest status, including the newest controversies over funding decisions and Working Group membership.

Background

As covered ad nauseum on this blog, in 2021 the Select Board sought to expedite a public works project in order to take advantage of a state grant. The Board approved moving a roadway and building a public “pocket park” on land owned by St. Mark’s School without first going to Town Meeting or even Planning Board hearings. Ever since, they’ve been dealing with the fallout.

In October, the Select Board agreed to put the paused project on hold until the next Annual Town Meeting in March. The plan was to ask voters to support a land swap for construction to continue in the spring. At that time, the Board was under fire again for having approved $7,695 to pay VHB to come up with concept designs based on guidance from the Working Group.

The indication was that the Board would put the brakes on spending while waiting to hear from the Working Group. The Group was asked to provide at least an interim report by mid-December.

Memo of Purchase & Sale

On January 17th, the Select Board discussed the draft of a “Memorandum of Purchase and Sale of Real Estate” (which they referred to as an MOU – Memo of Understanding).

As Chair Kathy Cook previewed in late December, the land swap agreement would replace the existing license agreement that incensed voters. It would require 2/3 of voters to pass the change in property ownership. But if the vote fails, an underlying license would remain. Under it, they would still be legally entitled to move forward with the project. She noted to fellow members that they would then have to decide whether or not they want to do that.

On the 17th, Planning Board Chair Meme Luttrell also pointed to a clause related to her Board’s site plan review. It states that if the Planning Board doesn’t approve the project, or if it imposes conditions unacceptable to the school, the land swap will be null and void but the license agreement will remain.

Luttrell reacted, “So, this freight train is going to keep going regardless of Town Meeting.” Cook responded that Board wouldn’t necessarily proceed with the project. The Board would have to figure out what to do.

At the Working Group meeting the following night, Cook clarified that she still doesn’t have a “plan B” for resolving the big pile of dirt if Town Meeting rejects the swap.

At the Select Board’s meeting, Cook said she would be asking Town Counsel questions and encouraged fellow members to do the same in preparation for this Tuesday’s potential vote. The public will have a chance to comment first, and Cook indicated they may choose to push the vote and signing the document to February 7th.

Vice Chair Chelsea Malinowski was wary of signing another agreement before Town Meeting votes. She had assumed they were pursuing an agreement to show voters and ask for approval. Cook responded that she wanted an agreement signed by the School prior to the meeting, so they couldn’t change terms afterwards. She and others also worried that critical voters would have that same concern.

Cook reminded that St. Mark’s changed the terms of the negotiated agreement for the golf course after Town Meeting. (She said that based on due diligence they decided not to take the “stump dump” parcel, and the deal ended up costing the Town an additional $1M.)

The land swap would be the first of two linked Articles on the Warrant for the March 23rd Town Meeting. The second would be a request for voters to allocate $250,000 from “free cash” for the project.

Design (and Spending) Update

Although the Select Board recently allocated $20,000 for the Working Group to use to prepare for Town Meeting, the Group doesn’t plan to use it.

At their January 3rd meeting, Cook proposed allocating ARPA funds for the Working Group to continue working with consultant VHB on final design plans, and bid documents for the park. The conceit was that to secure voter approval, they need to show them what the park would look like. The Board unanimously approved.

Following that, Cook apparently received negative comments, including those of Working Group member Freddie Gillespie. At their meeting on the 18th, Gillespie said that she had heard from people who had been begrudgingly willing to vote to move forward on the project. But the decision to spend more money without voter approval changed their mind. She believed the decision was costing the project support.

Cook acknowledged the reverse probably isn’t true. (There aren’t voters who will move from no to yes if the Town produces engineered plans.) Meanwhile, VHB confirmed that they do have money left in their contract to allow them to produce a final concept “bubble” design.

Gillespie asked if that meant the Town would get money back if VHB didn’t do more work. The response was no. VHB met its obligation under the contract and was entitled to the funds. But bookkeeping showed they could commit some additional hours to the work under the amount paid.  

Initially at the meeting, the Chair planned for the Group to center their discussion around a light touch design with a History Walk that had been jointly proposed by residents Fiore and Sally Waters.

Gillespie objected, noting that the Group still hadn’t discussed their opinions and ideas based on the public forum. She believed that should happen first and pushed to discuss her proposal. She noted that she had traced her plan over the Fiore/Waters plan to incorporate their History Walk. But she explained significant differences to the layout especially related to location of native plants, addition of a rain garden and an extra path.

During the discussion, Gillespie referred to pedestrians who would be coming from new sidewalks to be installed further north on Route 85. Later, VHB, engineer Greg Russell clarified that those sidewalks had been scrapped from the Various Streets project due to the cost when the bid came back.

Gillespie also noted that she had previously asked for data she believed important for plotting a design — maps of prevailing winds, the sun pattern at different times of year, and contours.

There was some debate over how to proceed in discussing the potential designs with VHB. Member Kevin Miller, Chair of the Historical Commission, noted that he and some others had yet to present their thoughts. Chair Marguerite Landry asked for everyone to send her their plans to present and discuss at the next meeting. 

Landry posted materials for a January 25th meeting with an agenda for members and residents to present their updated concepts. The meeting was cancelled due to weather. You can find that and the materials here. Landry expects to post a similar agenda for a meeting on February 8th at 7:00 pm.  (You can look for the future agenda here.)

Resident Concerns

At both the Select Board meeting and the Working Group meeting, outspoken critics of the project Karen Shimkus and Patricia Burns Fiore continued to question officials’ past and ongoing actions.

Both spoke against spending any more taxpayer dollars on the project before Town Meeting decides.

Shimkus urged the Board to vet Town Counsel’s advice on the legality of the license agreements with an attorney who specializes in easements. She also argued that moving the intersection closer to traffic lights and building a park next to it and on a busy road for use by children would create a safety hazard. She also claimed that under state conflict of interest law two Working Group members weren’t allowed to work on the project — Landry (representative from the Library Board of Trustees) and Select Board representative Andrew Dennington. She referred to their other position as making them abutters to the project. She pushed them to check with the Ethics Commission.

[Note:  Scroll to the bottom for my update explaining Landry’s follow up to state that  Ethics Commission’s attorney of the day told her  that she doesn’t have a conflict since she has no personal financial interest in the Library.]*

Fiore stated that members of the Working Group were required to get approval from their own committees before proposing or voting on designs. Town Clerk Jim Hegarty disputed that as her opinion, not a fact, since it is not specified in the charge or bylaws.

Although the charge calls for members who are representatives of other committees, it doesn’t specify that their role is to represent the approved views of those committees.

Updated (1/29/23 9:01 am): In emails with Landry she described her follow up on Shimkus’ claim that she and Dennington for violating conflict laws:

on Jan. 25 I called the State Ethics Commission office and spoke to the Attorney of the Day, and described Shimkus’s accusations and the situation. He said, “There is no problem with your situation.” He said, “There is no financial interest for you in any of this.” He said, There is no conflict of interest. So, consequently, to the best of my knowledge, and per the legal advice of the Mass. State Ethics Commission, there is no conflict of interest occurring here.

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JACK BARRON
1 month ago

If I were the planning board, I would seek a second opinion from an attorney other than town counsel. The park Central trauma is a good lesson to get more than one legal opinion. There very well may be state laws in place that force an approved vote by town meeting for the sale of town land that has not been publicly open to bids . I had this problem with one of our former town counsels before he lost his legal license for several years. he tried to sell town land next to my home without a public bid and at the same time only to specific people. This sounds to me like a repeat of that illegal no bid deal.

Al Hamilton
1 month ago

I hope the BOS will drop the so called “License Agreement” part of this deal like a hot potato. It is time for cooler heads to prevail and put an end to this mess. The “License Agreement” may be viewed as a clever piece of lawyering but the reality is that it is a giant middle finger aimed at Town Meeting. Town Meeting would be fully justified in rejecting this agreement and the subsequent funding if this clause remains.
Further, Town Meeting should give careful consideration with respect to the funding of legal services if the result is that the funds are going to be used to undermine the legitimate authority of Town Meeting. Why should Town Meeting provide funds that will be used to try and strip away Town Meetings authority. It should not!
I would like to support a reasonable deal that resolves this mess. I believe that the BOS did hear Town Meeting last year and are trying to resolve this mess in the least expensive way possible. Dropping the “License Agreement” would go a long way towards demonstrating respect for Town Meeting. It is an act of trust and leadership that the BOS should adopt.

David Parry
1 month ago
Reply to  Al Hamilton

  As usual, Al Hamilton spots the weak point and hits it on the head. He is referring to consultant attorney Jay Tallerman, who provides legal services to the Town, and has urged the use of “licenses”, instead of the customary “easements.” Mr Hamilton, and many others, are irritated that our paid consultant keeps on badgering the Selectboard to use licenses, even after two Town Meetings have made it abundantly clear that this was not an acceptable way to circumvent Town Meeting. So, how does one get a message heard? Hamilton has an interesting suggestion (quote):
  “Town Meeting should give careful consideration with respect to the funding of legal services, if the result is that the funds are going to be used to undermine the legitimate authority of Town Meeting. Why should Town Meeting provide funds that will be used to try and strip away Town Meetings authority. It should not! “
  Judging from the last two Town Meetings, most voters would likely agree. So why don’t we actually put an Article into the Town Meeting Warrant, to trim down the line item budget for legal services to the Selectboard? 
    But Tallerman is not alone in thinking that licenses are the way to go. Chair Katherine Cook apparently agrees, because she has many times suggested her fellow members should act as a unified board, using their license powers to complete the St Marks Road Project, . REGARDLESS IF TOWN MEETING REJECTS THE LAND SWAP.
    Ask yourself this question — Would you, a typical struggling taxpayer, support a project that requires you to pay over one million dollars, for a large road and parking lot which is used exclusively by a wealthy private school ? Surely, you might think, if the School wants it so badly, then why don’t they pay for it?  
I asked this question of question of Cook, but she never answered. Instead, she said this: 
  “Mr Pary, you don’t understand something.” 
  “What don’t I understand ?”
  “You don’t seem to be aware that we, (all of us on the Selectboard), have already voted to complete this project.”
  “When did you vote ?”
  “We voted last May”
  “But that’s 9 months ago. Don’t you think that all the corruption and lies raise serious questions about the desirability of this project ?”
  “No. I haven’t heard anything significant enough to change my mind.”
  “So, Ms Cook, let’s be clear on this. You are saying that you want to keep going, despite all the corruption, scandals and lies ?”
  “What scandals? You haven’t told me anything I didn’t know already. “
  “Well, let’s see — how about the three town officials with Conflicts of Interest, who brazenly participated in the project until the State Ethics Commission stopped them;
OR the deliberate mis-spending of the $290,000 State Grant by Galligan and Purple on items which were not eligible;
OR the banishment of the Town from receiving any more State grants, until EITHER the Town pays the money back to the State, OR the town finishes the items using our own money (if we can find any left over from Galligan and Purple’s mis-management);
OR the inflated lies from Galligan about the seriousness of the flooding at the existing intersection;
OR the fact that St Marks School now admits that it caused the road flooding when the School built a stone wall in the right-of-way but without town permits, and the wall blocked the natural drainage flow, but which can be easily corrected by simply removing part of the School wall;
OR the continuing myth (recently mentioned in MySouthborough) that the road project will save the Library (600 feet south) from future flooding, even though the flooding was completely solved 8 years ago by spending $3 million on parking lot drains which pass under Main St;
OR the myth of the underground stream” which Galligan claimed to exist but which VHB engineers and our Facilities Manager say is yet another lie spewed by Galligan, and yet it is still being repeated (as if gospel) by some Library officials, who (like our naive Selectboard) are so gullible that they actually believed everything Galligan said — in her attempts to find a justification for her pet project;
OR the failure of the Town Administrator to hand over official documents which involve him personally;
OR the plan for a “park” which nobody asked for, is located in the worst possibly location next to a busy highway where nobody lives, yet the only reason it might exist in future is because the town got that huge State Grant which has all been spent because Purple mis-appropriated all the money on ineligible items like the road and the parking lot;
OR …  
  “Enough, Mr Parry, I have heard it all before. There is nothing new to me here. The entire Selectboard are firmly determined to complete the project and your time is up. Who is next in line ?” 
——————————————————————————————-
For those who still do not understand what has happened, this is what happened:
Galligan devised a scheme to remove a perfectly OK intersection at St Marks Rd and 85, and build a new intersection 300 ft south, so that in the middle of the left-over triangle there is enough space for a large parking lot for St Marks, which St Marks asked for.
Amongst the consequences was the shift of the southern new road connection even further south, to provide more space for a bigger parking lot in the middle, so that the path of the new road cut through all those mature trees, and exposed all the old gravestones to damaging northerly winds.
But, worst of all, the oldest historic road in Southborough, St Marks Rd, is now scheduled for destruction, to be replaced by an ugly parking lot. That old pathway road works just fine the way it is, and it is a genuine indian pathway, from 3 centuries ago.
And all for what? An ugly new parking lot for St Marks, which worked fine on hard grass, and which we taxpayers are expected to pay for ? Are you kidding? NO.
Shame on our Selectboard.

  

Al Hamilton
1 month ago
Reply to  David Parry

While I am not advocating this at the moment, there is no need to have a separate article related to Town Counsel. All that is necessary is to hold and amend the appropriate legal budget. In effect, Town Meeting could “Fire” Town Counsel by zeroing out that budget line item or reprimand the same by reducing the amount. Certainly the budget is a place that Town Meeting can discuss Town Counsel’s performance.
I still believe that the BOS is trying to find a solution that recognizes Town Meeting’s inherent part of the process. I do not believe they want a repeat of last years debacle. What is important in any agreement that is drafted is that it is fully contingent on receiving the 2/3 approval required for real property transactions. No approval, no project.
For those who are not happy about the performance of the BOS I would encourage you to find candidates that are willing to run for the office and make this matter a part of the campaign.

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