Advisory Committee: reach for the reset button

Meeting on Tuesday, July 7, at Town Hall, starting at 6:15 pm, the Advisory Committee and its subcommittee on planning and regulation rejected a reserve fund transfer request from the Board of Selectmen and from Mel Kleckner, the town administrator, voting by 2 to 1 margins and more. Such outright rejections have been rare. This one seemed to surprise Joslin Murphy, the town counsel, and Melissa Goff, the deputy town administrator, who were on hand to make the case for the reserve fund transfer.

The request was for legal support related to potential taking of Hancock Village buffers in south Brookline as recreation land, proposed for study by a resolution from the annual town meeting this May under Article 18. The Board of Selectmen had been widely expected to set up an independent “blue ribbon panel” to consider the issue, since they are entangled in two lawsuits involving a Chapter 40B project at Hancock Village, overriding Brookline zoning, which they strongly oppose.

To nearly everyone’s surprise, Mr. Kleckner and members of the Brookline Board of Selectmen recently seemed to ignore conflicts in those matters, angling toward involvement in the recreation land issues, including their recent request for a transfer from the reserve fund. In effect as well as in words from some of its members, the Advisory Committee called on the Board of Selectmen to reach for the reset button and recast a potentially troubled approach.

Conflicts and bad faith: A land taking under powers of eminent domain can be held valid in Massachusetts when the land is part of a proposed Chapter 40B housing development. However, Brookline would need to be able to show that such a taking was in “good faith”–that is, mainly for a claimed and legitimate public purpose and not mainly to restrict a Chapter 40B development.

Such a case began about 44 years ago in Chelmsford. Its town meeting voted to take a parcel of land for conservation that was also the site of a Chapter 40B project for partly subsidized housing. The Supreme Judicial Court reviewed the case in Chelmsford v. DiBiase [370 Mass. 90, 1976]. It found, in part:

“A taking of land by eminent domain by a town in good faith and for a public purpose was valid notwithstanding a pending application to the board of appeals for a comprehensive permit to build low and moderate income housing on the land pursuant to General Laws Chapter 40B, Sections 20-23….”

According to the opinion in Chelmsford v. DiBiase, there were no material disputes over whether the town had acted in good faith–that is, mainly to take land for conservation purposes and not mainly to restrict a Chapter 40B development. In a later case, Pheasant Ridge v. Burlington [399 Mass. 771, 1987], disputes over “good faith” arose and led to a different outcome.

The Burlington Board of Selectmen apparently concocted a hasty justification for taking land by eminent domain at the site of a proposed Chapter 40B development. Massachusetts courts were not convinced by claims that the public purpose was legitimate but also considered circumstances under which the justification for a taking had been asserted, The Supreme Judicial Court opinion held, in part:

“…a municipal land taking, proper on its face, may be invalid because undertaken in bad faith…the record in this case…required the inference that the town, acting through its town meeting, was concerned only with blocking the plaintiffs’ development….”

Recreation land: The Brookline proposal for recreation land stands in the balance. Two situations are almost never identical. A Chelmsford case showed that a taking for recreation could succeed, while a Burlington case showed that conflicts of purposes might undermine it. Just after the recent town meeting, the town administrator and members of the Board of Selectmen set out in a sensible direction, along lines of past precedents in Brookline, keeping some distance from a study of recreation land.

More recently, ignoring the request of town meeting to act “in good faith,” they swerved toward wrecking the potential for a significant project. Some observers are already tending toward an interpretation of the changes as sabotage. Maybe, they say, the town administrator and members of the Board of Selectmen mean to block the recreation land proposal by linking it with their lawsuits and making it impossible to defend.

Regina Frawley, a Precinct 16 town meeting member and the principal petitioner for Article 18, told the full Advisory Committee, “The goal hasn’t changed…active recreation space in perpetuity.” The petitioners, she said, had been “very mindful to separate the fact the town had two law cases involving the property…the issue of bad faith versus good faith.” At town meeting, she recalled, “selectmen abstained from Article 18 so they would not contaminate the case…They had the power to create a ‘blue ribbon panel.’ After town meeting, they chose not to do that.”

According to Lee Selwyn, a member of the Advisory subcommittee, “The issues now are mainly factual…a citizen panel to develop a factual record is what the proponents of Article 18 had in mind.” At the recent town meeting, he said, “a clear majority” supported the article about recreation land. “It wasn’t close…a factual record supporting its legitimate use…would help to overcome a ‘bad faith’ claim.”

Len Weiss, an Advisory Committee member, contended, “We should vote against the reserve fund transfer. There’s money to be spent in the budget right now [and] no need to transfer money from the reserve fund.” Committee member Fred Levitan said that “in my tenth year [on the committee], I don’t recall reserve fund transfers in advance,” only seven days into a fiscal year.

In the end, the Advisory Committee denied the request for a reserve fund transfer by a vote of 16 to 7, with Alisa Jonas of Precinct 16 abstaining. Ms. Jonas has been described as a participant in a lawsuit brought by a group of south Brookline residents and linked with one of the lawsuits brought by the Board of Selectmen, opposing the Chapter 40B project at Hancock Village.

– Craig Bolon, Brookline, MA, July 8, 2015


Chelmsford v. DiBiase, 370 Mass. 90, 1976

Pheasant Ridge v. Burlington, 399 Mass. 771, 1987

Warrant report with supplements, May 26, 2015, town meeting, Town of Brookline, MA

Article 18, Brookline, MA, 2015 Annual Town Meeting, acted on May 28, 2015

Craig Bolon, Board of Selectmen: poisoning the well, Brookline Beacon, July 2, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

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