Select Board reconsidering terms of St. Mark’s land swap agreement (Updated)

The Board is hoping for an agreement that meets the Town's and School's needs without alienating Town Meeting voters

This week, the Select Board postponed a vote on a new legal agreement with St. Mark’s School related to the park, street, and parking lot project.

The Board worried that terms leaving a “license agreement” in place if voters reject a land swap could be the “poison pill” that sinks Town Meeting Articles to allow the project to be completed.

They will readdress the issue at their February 7th meeting.

In this week’s meeting, Chair Kathy Cook reiterated that it would cost the Town more money to try to clean up the project to return the land to its prior state than to complete the park. Part of that math is the requirement that the Town would have to return a $290K state grant.

It’s also worth noting that trees the public was upset were removed wouldn’t be restored, nor the new ones proposed as part of the park be planted.

The Library would still benefit from drainage that has been installed underground on the abutting parcel to avoid future floods. But, if there is no swap, license agreement, or easement, the Town would have to work out something with the school to access the system if maintenance was needed.

On Tuesday, residents Al Hamilton and Patricia Burns Fiore, two of the most outspoken critics to the Town’s Articles last year, said they want to support Articles this year but the license is an obstacle. Board members acknowledged that they had already been hearing similar comments prior to the meeting.

The Board discussed with Town Counsel the legal, practical, and political issues involved in either approving the “MOU” as written or revising it. One concern raised was the possibility that a version acceptable to voters might not be accepted by the school’s Board of Trustees.

Counsel Jay Talerman explained that if Town Meeting approves the swap, the license would allow the Town to start some of the work prior to the sale closing date. He also highlighted that if the project doesn’t go forward the Town would be obligated to do some cleanup work at the site. The License agreement would allow that.

But based on past statements and actions, Fiore worried that residents will assume the license agreement is an end run around Town Meeting. She reminded that voters were upset by a statement about the license by the Board’s spokesperson for the project last spring. Then-member Marty Healey told Town Meeting that even if the easements were rejected, the Town could continue work on the project under the license.

Although the Board has said they have no Plan B for how to proceed if voters reject their Articles, they haven’t committed to not completing the project if that happens. And the agreement didn’t include language that prohibits completing the project in that scenario.

St marks easement swapAs I’ve previously covered, the Select Board wants to convince Town Meeting voters that refused to swap easements with the private school to now swap ownership of the parcels. (See image right.)

A second Article would ask voters to appropriate $250K for the park project. (Cook explained that using a change order, $240K was removed from the construction project contract when the park was pulled out of it.) The amount would cover everything to finish the park, including engineering schematics.

The Board’s strategy was in response to voters complaints at the 2022 Annual Town Meeting. They argued that there was no transparency on what the project would cost the Town and objected to constructing a public project on privately owned land and a private project on publicly owned land. Outspoken voters rejected the Board’s argument that easements would provide the appropriate “interest in real estate”.

But one of voters’ other major gripes was the use of a license agreement to start work before getting approval from voters. Some argued that it usurped Town Meeting’s authority over easements. (Some voters weren’t even convinced the project was legally permissible under a license.)

Fiore said that despite her issues with the “mess”, the Town “can’t turn back the clock”. As a compromise, she has been advocating for a “light touch” design with History Walk elements. She didn’t want to see the terms of the agreement derail that.

Select Board members discussed possibilities for removing the license agreement or some of the related clauses. The school had already signed the MOU. A revised version would have to be sent to their Counsel and voted on again by their trustees.

Talerman counseled that the school was unlikely to replace the old license agreement with one that doesn’t include legal allowances and requirements for the Town to clean up the project if it fails. Board member Andrew Dennington countered that they might have interest in an agreement that is more likely to pass with voters.

Another concern was a potential Catch-22 if the board removed the license without making other changes.

Member Chelsea Malinowski pointed out that the Town wouldn’t be able to work on the new section of the roadway until the sale closes. But an ownership swap can’t take place until the existing section is discontinued as a public way. Both of those actions require Town Meeting votes.

Upon questioning, Talerman said a discontinued road way vote is effective immediately and can’t be conditioned with a delay. Acceptance of a new right of way is within 120 days with some steps that occur between the vote it becoming official. 

Town Counsel suggested that the timeline in the agreement could be altered. The current public way could be discontinued before a new one is opened, temporarily dead-ending St. Mark’s Road while the project is in progress.

In the discussion, Fiore asked for confirmation that the agreement would require St. Mark’s to pay for digging up the paved section of the current roadway and completing and mainting their new parking lot. The Board confirmed that was their understanding. Town Administrator Mark Purple noted they should reach out to make sure that is the school’s understanding.

The Board hoped to have potential changes to consider voting on at their upcoming meeting this Tuesday night. Talerman said he planned to reach out to St Mark’s counsel to lay the groundwork. He suggested that Purple do the same with his contact at the school.

Throughout Tuesday’s meeting, resident David Parry made comments and argued with the Select Board, Counsel, and Purple. Parry was irate that the Town didn’t list or include with minutes from the December 20th meeting the documents he submitted to the Board accusing officials of corruption.

Parry added new claims this week of lies told by Purple and former DPW Superintendent Karen Galligan. His evidence was his own recap of what he was told by the Town’s engineer consultant and “Lorian from DEP”. (The latter appeared to refer to  MassDOT District Highway Director Barry Lorian who previously confirmed in emails details of a meeting with Purple and Galligan on the project). That included his claim that the state didn’t want the park to be located where it is, “is mad as hell”, and wanted to retract his statements from Purple’s “memo”.

Purple refuted the claim, saying the only lies were coming from Parry. He indicated that in conversations with Lorian in the past several weeks, he disagreed with Parry and still concurred with statements Purple has made in the Select Board meetings.

Parry has a history of disputes with Town Officials over undocumented conversations. There have been several incidents where he has publicly made claims about what he was told that were refuted as untrue.

I emailed Lorian to see if he could confirm or deny any of the statements made by Parry or Purple. I also asked about recent, related claims by resident Karen Shimkus about the project.

2021 Concept Plan for Sotuhborough History WalkShimkus pointed to a post I wrote two years ago with the initial concept plan (right) for the project. In recent meeting, She read the map as showing that Galligan “sold” the public, and likely misled the state, that the Town would be swapping ownership of the land next to the library and a section of the school’s field at the corner of Routes 30 & 85.

That is based on the key which mislabels land next to the Library as belonging to the Town, and shows it and the corner parcel as subject to a license agreement with the school.

Shimkus’ reading isn’t consistent with what I was told or reported in February 2021. But I can’t say what state employees were told map represented. [Note, I can’t “fully say”, but I do have more information on that.]*

I haven’t heard back from Lorian, but will share his response if I do.

*Updated (2/10/23 4:22 pm): An email that was brought to my attention does raise more major questions about what MassDOT was led to believe. I will be posting about that on Monday.

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Kelly Roney
1 year ago

As one of the people who thought that what the Select Board did with the original St. Mark’s license agreement was illegal, I’ve learned (I think) that I was wrong. I was, however, right that it was an evasion of the legal authority of Town Meeting.

As a reminder, Mass. Genl. Law. Ch. 40 section 14 says:

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.

The words ”municipal purpose”, as used in this section, shall include any such land, easement or right therein within the city or town, so purchased or taken by eminent domain for the purpose of conveying or granting the same to the commonwealth for the use of a regional community college.

(Emphasis added.)

In the Select Board meeting of Jan. 31, 2023, Town Counsel Mr. Talerman stated the following (at

Municipal law is not particularly well-attuned to the purchase or sale or conveyance of real estate and how a municipality can do work, because Town Meeting is involved. … The way Town Meeting clouds the conveyance of real estate, you have to wait to gain those formal rights.

Laws are written to constrain people from doing what they want when they want! That’s one of the main purposes of law! If the town has a problem with municipal law as written, it should appeal to the legislature to fix the problem.

Further, Mr. Talerman stated:

You can do a revocable license – and it has to be revocable by law – to get work done. …

Here, licenses were done in anticipation … to get us down the road a little bit, to move the project forward and then clean it up with a Town Meeting vote.

These licenses, which look like easements, the only difference, the only distinction is that they’re not permanent. They have to be revocable by law.

So, the Select Board could use a license agreement quite reasonably to expedite work that spends appropriated money without needing any land transfers.

But the use of a revocable license agreement in this mess to present fait accompli to Town Meeting and demand a 2/3 rubber-stamp vote to bless the permanent transfer of real estate after the project is completed is an evasion of the plain text of state law.

I’m happy that the Select Board has moved away from this approach in its memorandum of understanding (see the Feb. 7 meeting at But I’d like guarantees that this sort of evasion will never happen again.

David Parry
1 year ago
Reply to  Kelly Roney

Kelly, you are correct on all points

At least the Select Board have learned one important lesson . Which is that temporary licenses will not be tolerated as a device to make an end run around Town Meeting … avoiding the need for TM approval of permanent asements.

But there is a much more important issue at stake here … which is this: There is NO NEED FOR ANY LICENSES OR EASEMENTS ON THIS PROJECT. NONE AT ALL. This is because the ENTIRE SCHEME (of building a private parking lot over an existing public road) … is NOT NEEDED OR DESIRABLE.

THE EXISTING ROAD SHOULD BE KEPT IN USE. The existing road and intersection work fine, the way they are now. The minor flooding (from infrequent storms) has been fully resolved — by installation of new, underground drainage pipes, nstalled under Rt 85.

Question: What caused this flooding?

Answer: The flooding was actually caused by St Marks School, which built a stone wall WITHIN the road right-of- way WITHOUT permits — thereby blocking the natural, pre-existing flow of rainwater away from the road. Logically the DPW should have followed the rule … if you broke it, then you should fix it. In other words, St Marks SHOULD have paid for the fix, in one of two ways :

EITHER – Removing the offending wall. which Sf Marks installed.

OR – Installing drainage pipes under Rt 85.

But St Marks did nothing at all to fix the flooding. Instead they waited untl the Town installed the new drainage system at tax-paters expense …


BUT TO return to the key point … this entire project is NOT needed or desirable.

St Marks can easily build their own parking lot on their own land … within their grass triangle, where they have previously parked their cars for decades.

St Marks has already benefitted
enormously. from the work which the Town has already done, at taxpayer’s expense. Indeed. St Marks can now take advantage of all the expensive work the Town has completed … like

(1) The tons of gravel needed for a parking lot, trucked to the site already.

(2) The underground drainage system -which can work for their future parking lot, at the same time as it works for the existing roadway.

The Town should simply STOP WORK. SPEND NO MORE FUNDS.

Let St Marks clean up their land and build their own parking lot.

FINALLY . What further costs?

For the Town ?…. . ZERO .

For St Marks.? They will finally have to pay for their own needs … . which they should have been paying from the start.

We want our road to continue in use. In other words … Please VOTE ” NO ” TO DIS-CONTINUE St Marks Rd Tbis is the oldest. historic road in Southborough, actually built over an authentic Indian trail.

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