On Tuesday, June 30, as recommended by Mel Kleckner, the town administrator, the Board of Selectmen voted to ask the Advisory Committee for $15,000 from the reserve fund on July 7, “for expertise in the study of eminent domain,” to be expended by the Office of Town Counsel. The request was prompted by approval at the annual town meeting of a resolution under Article 18, calling for the following main activity:
“…Town Meeting asks the Board of Selectmen to study and consider in good faith the taking under the powers of eminent domain [of] the two buffer zones presently zoned S-7 within the Hancock Village property, abutting Russett and Beverly Roads, for a permanently publicly-accessible active recreational space….”
Entanglements: A key problem with this request has been that members of the Board of Selectmen are plaintiffs in two lawsuits involving the Hancock Village property. They are suing a state agency that authorized the owner to propose a project under Chapter 40B of the General Laws, overriding Brookline zoning and other permits. They are also suing the Brookline Zoning Board of Appeals, for approving the project and granting a comprehensive permit.
If that were not enough, Nancy Heller, a newly elected member of the board, submitted Article 17 to the 2015 annual town meeting and argued it. It’s entitled, “Resolution in support of changes to the affordable housing law, Massachusetts General Laws Chapter 40B.” She and other petitioners explained, “…[We] have worded the resolution in a broad manner. The purpose is to give our legislators as much latitude as they need to work with other legislators to amend 40B….”
Thus members of the Board of Selectmen are entangled in attacks against both a controversial 40B project at Hancock Village and the key Massachusetts law enabling the project. This leaves high risks for any involvement they might have in proposals arising from Article 18, under which Brookline would consider taking currently vacant parts of Hancock Village by eminent domain, to be used as recreation land.
One of the common challenges against eminent domain is acting in “bad faith”–that is, for covert purposes other than those claimed. With the Hancock Village situation, the property owner could be expected to claim that members of the Board of Selectmen considered eminent domain in “bad faith”—mainly to restrict an unwelcome Chapter 40B development rather than mainly to acquire recreation land.
Anticipation and defenses: After the recent town meeting, many participants and observers anticipated the Board of Selectmen would appoint a study committee for Article 18, as they often do for other issues, and would then keep their distance from it.
It would need to become an independent “blue ribbon panel,” with no further involvement by members of the Board of Selectmen. Putting the issues in the hands of an independent panel could provide defenses against acting in “bad faith,” should a recreation land effort proceed and should eminent domain be used to acquire Hancock Village land.
For quite a few years, several iterations of the Board of Selectmen have swung the other way. Coached by ambitious town administrators, they have politicized almost every new board, commission, committee and council by installing one of their members on it, often naming that member as chair. Article 18 presented a situation where such a domineering brand of machine politics cannot work. It could obviously encourage claims of “bad faith” and could well destroy a project to acquire recreation land.
Precedents: After idling on Article 18 for a month and making a false start, Mr. Kleckner, who seems to know very little about Brookline history, tried to claim a committee was unlikely because the town no longer has a redevelopment authority to call on. The former Brookline Redevelopment Authority was indeed active in takings during the Farm Project and Marsh Project, but the Town of Brookline did similar work, too. Disputes focused on policies and costs; mechanics were not thought to be much of a stretch.
Under Article 25, the 1974 annual town meeting authorized taking land off Amory St. by eminent domain for conservation. The relatively new Conservation Commission had proposed the Hall’s Pond project and presented all the key evaluations and arguments to boards, committees and town meeting. Not long afterward, the commission did similar work for the conservation area now known as Amory Woods.
Like the Hancock Village buffers, the Hall’s Pond parcel was seen as threatened by development, yet it was intact and had never been built on. North of Route 9, Brookline had no conservation land then, and very little suitable land remained. At 3-1/2 acres, the site to the east of Amory Playground was about half the size of the Hancock Village buffers combined.
The Conservation Commission obtained advice from local lawyers, contracted for a land survey, commissioned independent appraisals, and prepared and submitted the 1974 town meeting article. Commissioners persuaded only two members of the Board of Selectmen, but they got help from the Planning Board and a unanimous endorsement from the Advisory Committee. Town meeting gave strong support, and a counted vote was not needed.
Poisoning the well: On June 30, Mr. Kleckner led members of the Board of Selectmen in an odd direction–at high risk of poisoning the well, though coupling them into “bad faith” maneuvers. They did not hold matters at arms length by appointing an independent committee. Instead, they voted to submit a reserve fund request for funds to be spent by the town counsel, who reports to them.
They expect to entertain discussions of the issues among the board–potentially some closed to the public, at which they may also be considering “litigation,” as their agendas often call out. According to Mr. Kleckner, they expect to couple investigations pertinent to recreation areas with those pertinent to potential school sites and possibly other town projects.
By failing to maintain a bright line of separation between recreation land proposed at Hancock Village and other town business, including lawsuits against Hancock Village development, recent actions by Mr. Kleckner and members of the Board of Selectmen stand at grave risk of poisoning the well. Ignoring the request of the town meeting to act “in good faith,” they are proceeding headlong toward wrecking the potential for a significant project. At least some will say that is what they meant to do.
– Craig Bolon, Brookline, MA, July 2, 2015
Warrant report with supplements, May 26, 2015, town meeting, Town of Brookline, MA
Article 18, Brookline, MA, 2015 Annual Town Meeting, heard and acted on May 28, 2015