Category Archives: Development

real estate development

Wind energy: broken promises

“Falmouth selectmen decided…not to appeal a judge’s determination that [two wind turbines] must be shut down.” As noted by the Boston Globe in 2017, they were “simply built too close to homes.” Not mentioned in the Globe: potential harms to residents’ health had been clear years before when the turbines were proposed, yet the project had been promoted by a prominent state official during the Patrick administration.

Small-scale collapse: The Falmouth wind-power crisis was entirely foreseeable, It sprang from ignorance of the Patrick administration’s first energy secretary. He was a Falmouth native who had no strong qualifications for that job–even reported as having trouble with high-school chemistry. Rather than invest in scientific knowledge, he spent much of a career as a “policy analyst.”

Former Gov. Patrick’s first-term energy agenda was also bollixed by a wholly avoidable fracas over burning wood for energy–a gross source of ordinary, fine-particle air pollution. At the start of a second term, Patrick insisted that all “cabinet officers” resign. He then reappointed each one except for the former energy secretary, and he soon restructured policy, moving away from wind energy and toward solar energy.

Large-scale collapse: The Nantucket Sound wind-power collapse was not entirely forseeable. That is a rare region of Massachusetts with fairly strong and reliable winds. Aside from local politics, an obstacle dating from the 1990s had been vague costs to mount wind turbines offshore. European equipment suppliers were able to hide information by getting governments to sponsor infrastructure work. As late as 2007, a review by Lawrence Berkeley National Laboratory warned about “high and uncertain costs.”

Political struggles over Cape Wind were often waged by proxy. During 2003, for instance, Michael Egan of Osterville and other opponents funded a review by a nominally nonprofit organization, claiming the project would cost the region more than $60 million a year in lost revenue because of fewer tourists and lower real estate values. During those years, Cape Wind’s chief developer Jim Gordon was constantly on the defensive and would not say much about financial issues.

In November, 2010, the Patrick administration set a price, approving a power-purchase agreement between Cape Wind and National Grid–the largest utility in southeastern Massachusetts–starting at $0.187 per kWh. For the year 2010, ISO New England reported an average wholesale price for electricity distributed in New England of $0.0593 per kWh. Cape Wind came to market at more than three times New England’s average price.

The high price shifted opinions away from Cape Wind. Many felt Cape Wind had lied to the public about the feasibility of its plans. Under 2010 contracts with utilities, Cape Wind got until the end of 2014 to start construction. Opponents tried to hinder Cape Wind with lawsuits. They prevailed; Cape Wind never installed a wind turbine. At the end of 2014, utilities terminated contracts with Cape Wind for lack of performance. That marked the end of a regional era in wind energy, coming at the end of the Patrick administration.

Progress and prospects: So far there has been no dramatic surge of wind power in New England. Instead, some states have been turning away. Although New Hampshire and Vermont have promising wind potentials, after about 2010 their politics swang against wind turbines. Preservationists there call them “industrial wind.”

The development of wind energy in New England is strongly skewed toward the northern states. Maine, New Hampshire and Vermont have about 90 percent of the rated generating capacity, with 68 percent just in Maine. Sources of data report amounts that differ, mostly because of dates when wind farms are considered active.

Rated MW, end of year 2016

    5 Connecticut
901 Maine
115 Massachusetts
185 New Hampshire
    9 Rhode Island
119 Vermont

Source: American Wind Energy Association

Since taking office in 2011, Maine’s aggressive and racist Gov. LePage has missed few chances to oppose wind and solar energy development. His chief advisor has been an appliance installer with no scientific training. However, wind-energy business in Maine is also aggressive. After being stymied in 2013 and 2014, developers came back strongly the next two years, opening six wind farms and doubling Maine’s capacity. Because of term limits, LePage leaves office in January, 2019.

Since 2012, the remainder of New England has seen little wind-energy activity, adding less than 20 MW of rated capacity on land. While it was clear that former Gov. Patrick in Massachusetts and former Gov. Shumlin in Vermont stepped aside in the face of political forces, the situation in New Hampshire remains murky. Geographies of Connecticut and Rhode Island offer little land-based wind potential, although there is substantial potential over Long Island Sound and nearby ocean.

Wind turbines seen from Barlows Point, Block Island, simulated view

BlockIslandSimulatedViewBarlowsPoint

Source: U.S. Army Corps of Engineers, 2013

In the spring of 2017, the Deepwater Wind company reached full power with a 5-turbine offshore wind farm, rated at 30 MW, located just south of Block Island–part of Rhode Island southwest of Narragansett Bay. The starting wholesale price of energy is very high: $0.244 per kWh. However, Block Island was never connected to the New England grid before and was paying even higher prices to a company operating a small plant using diesel engines.

There are no similar offshore opportunities of comparable size elsewhere in New England. However, Martha’s Vineyard and–ironically–Nantucket both suffer from frequent problems. They receive electricity from the New England grid, but demands often exceed supply. When that happens, voltages sag and can drift out of phase with currents.

– Craig Bolon, Brookline, MA, January 2, 2018


Katharine Q. Seelye, After 16 years, hopes for offshore wind farm in Massachusetts blow away, New York Times, December 19, 2017

Wilson Ring, Associated Press, Vermont wind-turbine noise rules displease everyone, Portland (ME) Press Herald, November 13, 2017

Doug Harlow, Anti-wind group opposes plans for 200 turbines in Somerset County, Kennebec (ME) Journal, August 15, 2017

Fred Sever, Should northern New England host transmission lines?, Maine Public Radio, August 7, 2017

Jon Chesto, Two Cape windmills have stopped spinning, but someone still has to pay, Boston Globe, July 12, 2017

Cassius Shuman, Island operating on wind farm power, Block Island (RI) Times, May 1, 2017

Tux Turkel, Refrigeration technician is LePage’s energy policy adviser, Portland (ME) Press Herald, February 19, 2017

Unattributed, Maine Governor Paul LePage criticized for racist remarks, BBC (UK), August 27, 2016

Bruce Mohl, Utilities terminate Cape Wind power contracts, Commonwealth, January 6, 2015

Wholesale load cost report for December, 2010, ISO New England, January 18, 2011

Steve LeBlanc, Associated Press, Gov. Patrick taps DCR chief as energy secretary, Boston Globe, December 1, 2010

Rodrique Ngowi and Jay Lindsay, Massachusetts regulators approve offshore wind power deal, Boston Globe, November 22, 2010

Steve LeBlanc, Associated Press, Wood power worse polluter than coal, Boston Globe, June 10, 2010

Ryan Wiser and Mark Bolinger, Annual Report on U.S. Wind Power Installation, Cost and Performance Trends, Lawrence Berkely National Laboratory, 2008

Scott Allen, Study funded by foe says wind turbines to hurt Cape tourism, Boston Globe, October 28, 2003

Craig Bolon, Renewables: inherit the wind, Brookline Beacon, June 3, 2017

Craig Bolon, Surfing a vortex: energy and climate, Brookline Beacon, February 12, 2017

Craig Bolon, Renewable energy: New England experience, Brookline Beacon, August 15, 2015

Craig Bolon, Rhode Island: offshore wind-power, winning and losing, Brookline Beacon, July 26, 2015

London high-rise fire: tragedy of the commoners

A catastrophic fire June 14, 2017, at Grenfell Tower, a London high-rise public housing building–killing at least 80 occupants–has developed into a tragedy of the commoners. It is not being visited on British elites. In its aftermath, officials of the current, Tory government spared no effort–to offload blame. Suspicions pointed at building materials that quickly spread flames up the outside of the building.

Philip Hammond, the famously arrogant Chancellor of the Exchequer, tried to claim that materials used in a recent renovation of Grenfell Tower had been banned under the British building code. He was promptly refuted by reporter David D. Kirkpatrick, writing in the New York Times.

The officials patched together a national emergency action, ordering managers of public housing that had used similar building materials to submit samples for so-called “fire safety” testing–but not managers of private housing. Without waiting for results or advice, the Camden council, in north London, ordered evacuations of five high-rise public housing buildings that had been renovated using such materials.

A testing mystery: Building contractors and materials manufacturers had stated that their practices met standards of the British building code, which include standards for fire resistance. A few days after the catastrophe, however, Tory officials said some samples of materials they received had failed “fire safety” testing–tending to offload blame. At ten days after the catastrophe, the officials disclosed that all 60 samples from public housing tested to date had failed. How could that be?

Nothing from mainstream British news sites explored the obvious conflict. One story in the Guardian said recent tests “lack transparency,” but it stopped there. Absent gross fraud, the “fire safety” tests hastily arranged by officials of the Tory government somehow had to differ from tests claimed to have been performed by manufacturers and builders under the British building code.

The current building code allows two approaches. Individual materials can be tested for “fire spread,” using British Standard BS 476 procedures and regulations. Otherwise, a large sample of an assembled “cladding system” can be tested using British Standard BS 8414 procedures and classified under British Research Establishment BRE 135 regulations.

Manufacturers usually test for “fire spread” using BS 476, or a European equivalent, and builders usually seek materials so tested. The alternative via BS 8414 and BRE 135, or European equivalents, is much more costly to test. Moreover, that approach would limit application to a specific “cladding system” design and to its choices for multiple materials and fastenings.

Potentially flammable materials used on the exterior of Grenfell Tower were Celotex RS5000 insulation, 6 inches thick, and Reynobond PE rainshield, 1/8 inch thick–both manufactured in Europe. Both those materials burned in the catastrophe, but most news reports ignored the rigid polyisocyanurate foam insulation and focused only on the rainshield. It consists of a solid polyethylene core and two thin aluminum outer layers.

If Reynobond PE rainshield gets hot–only around 300 F–highly flammable polyethylene in the core will melt. Liquid might leak from an edge and ignite, or an entire metal layer might release, exposing polyethylene to fire. However, BS 476 test procedures do not create such conditions. They subject a patch in the middle of a rainshield panel to a small flame for a minute. The outer metal layer does not burn, and the brief heating does not melt the whole core and release the metal, so such a panel of rainshield material passes that test.

Mystery resolved: At some time on Monday, July 3, according to automatic logging by other sites, British Research Establishment (BRE) staff, who had been performing emergency “fire safety” testing for Tory government officials, added notes to one of their Web pages describing what they were doing. BRE staff admitted they had used rogue “screening tests” to measure “gross heat of combustion” of materials, not a standard test–such as International Standards Organization ISO 1716–and not a test for “fire spread” or for “combustibility.”

According to the BRE statement, “procedures set out in the [ISO] standard [for heat of combustion] have not been followed.” BRE staff did not test for “combustibility” either, as Tory officials have repeatedly claimed–that is, whether a material will catch fire, under some specified condition. Instead, BRE staff have been scraping out core fragments from samples of rainshield material and then measuring how much heat will be produced when the fragments are forced to burn in an artificial environment of pure oxygen.

Now it is clear why tests according to the British building code might pass but tests recently reported by Tory officials might fail. They are different tests. Rogue tests being carried out by the BRE staff do not measure whether materials will catch fire under controlled conditions. Instead they measure how much heat is produced when core fragments scraped from the materials are forced to burn.

The rogue tests, of course, have not been systematically validated against actual risks of building fires. Such a process would involve extended experiments, analysis, documentation and review. If compared, for example, against longstanding, carefully developed BS 8414 procedures and BRE 135 regulations, rogue tests might either overestimate or underestimate fire hazards from practical situations.

Other options: Little noticed by the public, some building materials apparently similar to those used at Grenfell Tower have passed the rogue test ordered by Tory government officials and conducted by BRE staff. The headline for an article on the BBC News site did not help, saying, “Three hospitals fail fire safety.” The text, however, claimed that “cladding at 11 sites passed the checks, while the other 19 sites which flagged up potential fire safety issues have been told they do not need to take further action.”

The Tory government still has not ordered testing of private housing or commercial buildings, but Health Secretary Jeremy Hunt started a national emergency action to test hospital buildings. When reported by BBC News, 30 had passed the rogue test or been exempted, and only three had failed. Apparently British hospital renovations were more cautious in some ways than those performed by public housing authorities.

Three main grades of metal-clad rainshield materials have been marketed in Europe for about 25 years. They are often designated “PE” (polyethylene core), “FR” (fire-retardant core) and “A2″ (limited combustibility core)–the last one a classification from the European Normative EN 13501 fire-resistance standard.

The Alucobond company of Switzerland introduced an “A2″ product in the early 1990s. Like most other such products, its core is nonflammable mineral wool plus a few percent by weight of polymer binder. At very high temperatures the polymer will char, but flames will not spread far. This type of product is more expensive and more difficult to install than other composite rainshield products. The distribution of results obtained by BRE staff suggest that “A2″ products may pass their rogue test, while “PE” and “FR” products may fail.

Lessons learned and unlearned: Some building renovation managers apparently took more cautious approaches than others. However, the Tory government’s attempt to shift blame for the Grenfell Tower catastrophe onto project designers and managers and onto materials manufacturers amounts to a scam.

The core of the problem has been grossly inadequate building code regulations–allowing an irresponsible alternative to carefully developed fire resistance standards. That is compounded by lack of fire suppression measures, particularly requiring fire sprinklers in high-rise buildings.

The British government had ample, local warning about the potential for a catastrophe. In 2009, the Lakanal House fire in Camberwell, similar in many respects, killed three women and three children. Nothing of much significance was ever done to prevent another such disaster.

The current, Tory government nominated Sir Ken Knight, who compiled a report on the Lakanal fire, to head a panel that is to examine “safety actions” in the aftermath of the Grenfell Tower catastrophe. Sir Ken Knight had advised against regulations requiring fire sprinklers in high-rise buildings.

Former Tory housing minister Gavin Barwell told the House of Commons in October, 2016, that the British Building Regulations for fire safety would be reviewed in response to the Lakanal House disaster, but he did nothing. His punishment, after being defeated for re-election, has been to serve as chief of staff to the prime minister, Theresa May.

– Craig Bolon, Brookline, MA, July 6, 2017


Three hospitals fail fire safety checks, BBC News (UK), July 4, 2017

Grenfell Tower fire: ACM cladding testing, British Research Establishment (BRE), July 3, 2017

Richard Hartley-Parkinson, Man overseeing Grenfell disaster previously advised against fitting sprinklers, London Metro, June 28, 2017

Robert Booth, Tower cladding tests after Grenfell fire lack transparency, say experts, Manchester Guardian (UK), June 26, 2017

Sylvia Hui, Associated Press, All samples from high-rise towers in UK fail fire safety tests, Chicago Tribune, June 25, 2017

Caroline Mortimer, Grenfell response: number of tower blocks failing fire tests rises to 60, London Independent, June 25, 2017

Shehab Khan, ‘Hundreds’ died in Grenfell Tower fire, says shadow Home Secretary Diane Abbott, London Independent, June 24, 2017

David D. Kirkpatrick, Danny Hakim and James Glanz, Why Grenfell Tower burned: regulators put cost before safety, New York Times, June 24, 2017

Danica Kirka, Associated Press, London council evacuates residents amid fire safety concerns, WTOP (Washington, DC), June 23, 2017

Lucy Pasha-Robinson, Tens of thousands of people could be living in lethal tower blocks, tests reveal, London Independent, June 22, 2017

Jack Simpson, Fire experts slam ‘outdated’ Building Regulations following Grenfell, Construction News (UK), June 21, 2017

David D. Kirkpatrick, UK officials said cladding on tower burned in London was banned, but it wasn’t, New York Times, June 19, 2017

Tom Peck, Grenfell Tower cladding is banned in UK, Philip Hammond says, London Independent, June 17, 2017

Dan Bilefsky, London fire death toll rises to 17, New York Times, June 15, 2017

Robert Booth, Ian Sample, David Pegg and Holly Watt, Experts warned government against cladding material used on Grenfell, Manchester Guardian (UK), June 15, 2017

Gregory Katz and Danica Kirka, Associated Press, Death toll rises to 12 in London apartment building inferno, WTOP (Washington, DC), June 14, 2017

ISO 1716:2010, Determination of the gross heat of combustion, International Standards Organization (Geneva, Switzerland), 2017

Resistance to fire: EN 13501, the European standard, Odenwald Faserplattenwerk (Amorbach, Germany), 2017

EN 13501-1: Fire test to building material, Ecosafene Safety and Testing World (Xiamen, China), 2017

BS 476-7: Fire test to building material, Ecosafene Safety and Testing World (Xiamen, China), 2017

Prashant Thakkar, 1992 market introduction of Alucobond A2, Glazing Shopee (Vadodara, India), 2017

Sara Colwell, Illustrated guide to British fire safety testing and standards, British Research Establishment (BRE), 2014

Fire safety: Approved Document B, The Building Regulations 2010, [British] National Archives (effective April, 2007, as amended through 2013)

Craig Bolon, High-rise fire in London: needless catastrophe, Brookline Beacon, June 21, 2017

High-rise fire in London: needless catastrophe

Around 1 am local time Wednesday morning, June 14, a kitchen fire began in a London high-rise public housing building. It was reported promptly to 999, London emergency services. The Grenfell Tower structure in west London–built mainly with precast concrete, steel and glass–should easily have resisted a kitchen fire long enough for the London Fire Brigade to arrive and extinguish it, but instead the fire spread.

Fire escaped through a window on a lower floor of the building, ignited newly installed, flammable materials on the exterior and quickly spread upwards. By the time the London Fire Brigade arrived, only a few minutes after the emergency call, the fire had already climbed well up the building of 24 floors, and it was also spreading sideways.

London high-rise fire, June 14, 2017, about 2 am

GrenfellTowerFireLondon20170614
Source: London emergency services

Desperate efforts: The London Fire Brigade was able to extinguish the kitchen fire, but its efforts against the massive fire on the outside of the high-rise building proved futile. By the time water flowed from aerial pumpers, the fire had spread onto two or more sides of Grenfell Tower and had reached the upper floors. As shown in photos, water streams rose only about halfway up one side of the building and a third of the way up a second. Apparently the London Fire Brigade could not access other sides when it mattered most.

The intense fire warped or melted new, thin aluminum window frames, and window panes fell out, allowing the fire inside. The building never had sprinklers. Contents of nearly all dwellings above the eighth floor and some below eventually ignited, further spreading fire from window to window. Interior fires became mostly air-limited and very smoky. Photos show interior fires burning at least 12 hours, until there were no more dwelling contents left to burn.

Inside Grenfell Tower, survivors say chaos reigned. In some areas, fire alarms did not sound or could not be heard. Emergency lighting was dim. Residents had been warned to stay inside dwellings in case of fire, but many ran through smoky corridors and down the single, narrow stairway, colliding with firefighters rushing upward. Most Grenfell Tower residents survived, but many who followed instructions became trapped.

While the lowest floors of Grenfell Tower suffered water damage, photos show at least three-quarters of the building incinerated. Five days after the fire began, London police stated that at least 79 people had perished. News reports speculated that final numbers could be much higher. Parts of the structure had been found unstable, so that dogs had been sent in to search for remains.

Causes of the catastrophe: The Grenfell Tower fire of 2017 did not compare to property damage from the Great London Fire of 1666, but the death toll may have been higher. The British prime minister has ordered a public inquiry directed by a judge. While that is likely to take at least months, contributing factors are already known.

It was clear from the outset that materials installed in a recent renovation of Grenfell Tower spread fire outside the building. High-rise structures were traditionally built with fireproof materials: typically concrete, steel, brick and glass. The renovation clad the building in a thick layer of insulation and a thin layer of rainshield. Both the added layers contained flammable materials, and both apparently burned.

Early news reports mentioned several different materials used in renovating Grenfell Tower, including highly flammable polystyrene and polyurethane. Discovery of specifications narrowed the list to Celotex RS5000 insulation, 6 inches thick, and Reynobond PE rainshield, 1/8 inch thick–both manufactured in Europe. The Celotex product is rigid polyisocyanurate foam, fire resistant but not fireproof. The Reynobond PE product has a solid polyethylene core, easily melted and readily flammable.

For a short time, Philip Hammond, the famously arrogant Chancellor of the Exchequer since July, 2016, muddied waters with a claim that Grenfell Tower renovation materials were banned under British building codes. If so, that might shift liability away from the UK government and toward renovation contractors. Writing in the New York Times, reporter David D. Kirkpatrick soon showed Hammond misinformed or lying.

In recent years, flammable materials have been allowed on the exteriors of high-rise buildings in several places, including France, Britain, Dubai, Singapore, South Korea and Victoria, Australia. That has resulted in a series of so-called “cladding fires” on the outsides of high-rise buildings. Until the Grenfell Tower catastrophe, the most widely publicized of those fires occurred in Dubai.

The worst of at least five recent high-rise cladding fires in Dubai heavily damaged the Address hotel on New Year’s Eve, 2015, the Sulafa tower on July 20, 2016, and the ironically named Torch Tower on April 2, 2017. The disasters resulted in several injuries but no deaths. In response, Dubai reportedly tightened building requirements, with some previously installed building materials needing to be replaced.

Avoiding another catastrophe: A cladding fire in Melbourne, Australia on November 25, 2014, showed how multiple fire-safety measures can avoid catastrophes. Lacrosse Docklands is a 23-story apartment building similar to Grenfell Tower. The exterior had been clad with similar flammable materials. A cigarette left in a plastic dish on a balcony ignited the dish and the wood table under it, starting a fire.

The burning wood table ignited an adjacent area of rainshield material, starting the cladding fire. The rainshield on this building was known by the trade name Alucobest. Like the Reynobond PE product, the standard Alucobest product has a readily flammable solid polyethylene core. As with the Grenfell Tower fire, the Lacrosse Docklands fire warped and melted aluminum window frames, and window panes fell out, allowing the fire to enter dwellings.

That is where similarities end and differences begin. Unlike Grenfell Tower, the insulation behind the rainshield at Lacrosse Docklands in Melbourne was non-combustible, not merely fire resistant: glass wool instead of polyisocyanurate foam. That probably slowed the speed of fire spreading, and it fed less fuel to the fire. The design of Lacrosse Docklands features bays of dwellings separated by protruding fins. The fire in Melbourne rose rapidly up one bay but did not jump to adjacent bays.

Unlike Grenfell Tower in London, Lacrosse Docklands in Melbourne had sprinklers–likely the most important difference. They worked as intended and kept fire from spreading inside dwellings, even though fire had been able to enter through damaged and open windows. The intensity of the fire did not increase through igniting dwelling contents, and fire did not spread inside the Melbourne building.

Unlike the London Fire Brigade performance, water flows from aerial pumpers in Melbourne reached to the top of the Lacrosse Docklands building and extinguished the cladding fire. There was substantial property damage in Melbourne, but there were no deaths or major injuries. Multiple safety measures combined to prevent a disaster from becoming a catastrophe.

– Craig Bolon, Brookline, MA, June 21, 2017


A visual guide to what happened at Grenfell Tower, BBC News, June 20, 2017

Danica Kirka and Frank Griffiths, Associated Press, 79 now believed to have died in London high-rise fire, ABC News, June 19, 2017

David D. Kirkpatrick, UK officials said cladding on tower burned in London was banned, but it wasn’t, New York Times, June 19, 2017

Justin Pritchrd, Associated Press, Insulating skin on high-rises has fueled fires before London, ABC News, June 18, 2017

Tom Peck, Grenfell Tower cladding is banned in UK, Philip Hammond says, London Independent, June 17, 2017

Danica Kirka, Associated Press, Anger erupts over possible flaws at burned London tower, WTOP (Washington, DC), June 16, 2017

Aaron Morby, Twenty London high-rises with Grenfell cladding system, Construction Enquirer (UK), June 16, 2017

Tom Bergin, Maker of panels at London tower cautioned on high-rise fire risk, Reuters (UK), June 16, 2017

Hayley Dixon, Sarah Knapton, Steven Swinford, Leon Watson and Danny Boyle, Grief gives way to anger as Grenfell Tower residents demand answers over string of failures, London Telegraph, June 15, 2017

Dan Bilefsky, London fire death toll rises to 17, New York Times, June 15, 2017

Hannah Lucinda Smith, The Grenfell Tower blaze was a disaster waiting to happen, The Spectator (UK), June 15, 2017

Benedict Brook and Rose Brennan, Melbourne skyscraper fire, caused by cladding, may have been a warning for London, News Corp Australia, June 15, 2017

Calla Wahlquist, Cladding in London high-rise fire also blamed for 2014 Melbourne blaze, Manchester Guardian (UK), June 15, 2017

Henry Bodkin, Fire safety expert had warned government advisors ‘entirely avoidable’ deaths would occur at structures like Grenfell Tower, London Telegraph, June 14, 2017

Jon Gambrell, Fire hits Dubai high-rise complex near world’s tallest tower, Associated Press, April 2, 2017

Unattributed, AFP, Dubai toughens fire rules after tower blazes, Business Times, January 22, 2017

Unattributed, Dubai fire: blaze engulfs more than 30 floors of Sulafa Tower, BBC News, July 20, 2016

Lacrosse Docklands fire: post-incident analysis report, Metropolitan Fire and Emergency Services Board, Victoria, Australia, April 27, 2015 (5 MB)

Andrew Moseman, Huge fire engulfs Dubai skyscraper full of apartments, Popular Mechanics, February 20, 2015

Hancock Village 40B: parties try further appeal

Private parties to the original lawsuit over the proposed Chapter 40B housing project at Hancock Village have filed for an appeal at the Massachusetts Supreme Judicial Court (SJC). That lawsuit challenged the “project eligibility letter” that the Massachusetts Development Finance Agency issued, allowing the project to be considered by Brookline’s Zoning Board of Appeals.

Further appeal: At superior court for Norfolk County and recently at the Massachusetts Court of Appeals, the Town of Brookline and the allied homeowner group lost. The appeals court issued an abbreviated “rule 1:28″ decision, indicating it saw “no substantial question of law.” That could make the task of obtaining SJC review problematic.

The SJC has discretion over “further appellate review” and does not routinely accept an application unless there is disagreement at the Court of Appeals or what the SJC sees as significant unresolved issues. The Brookline parties might see the appeals court’s summary approach to its case as cause to claim that issues they have are significant and unresolved.

Unresolved issues: When explaining its ruling, the appeals court took a formalist view of a prior case, citing procedures but not substance of events that the Brookline parties had relied on. A key element of their case was an agreement on conditions for how Hancock Village would be developed. It was presented to the 1946 annual town meeting as part of the text of Article 23. After reviewing it, the town meeting voted to change land now called Hancock Village from single-family zoning to apartment zoning.

As a key argument, the Brookline parties had cited a recent appeals court ruling saying that conditions on a subdivision in the town of Orleans were permanent. According to the appeals court, because the Orleans conditions were part of a “discretionary grant of regulatory approval” they did not expire after 30 years, like restrictions in a deed. [Samuelson v. Planning Board of Orleans, 2014]

Surely Brookline’s 1946 rezoning to allow apartments in Hancock Village also was a “discretionary grant of regulatory approval,” and its conditions for development also would not expire in 30 years. According to the Court of Appeals in 2015, that was not enough. The exact procedures had not been followed in Brookline. To make conditions permanent, it was necessary that “land use restrictions” be “imposed” as in Orleans.

That’s actually what Brookline does today, with its specialized and overlay zoning districts of the past 20 years–like ones for Cleveland Circle, Commonwealth Avenue and Brookline Place. These are heavily customized types of zoning, designed around specific development projects. In 1946, however, such concepts were decades away. With its innovative 1946 plan for Hancock Village, the town did what looked reasonable at the time.

Instead of conditions “imposed” by a zoning district or a Zoning Board of Appeals decision, the 1946 town meeting reviewed conditions agreed to by the developer, who stated that the conditions would apply to “itself, its successors and assigns.” The agreement did not specify any particular process through which the conditions would be carried forward, leaving that to the developer.

Prospects: Under the U.S. Constitution, Congress–and by extension other legislatures–are not able to make “ex post facto laws,” applying after events happen. Courts are not so restricted, and that is what the Court of Appeals seems to be trying to do. No doubt, had the Town of Brookline known in 1946 that in 2015 the Court of Appeals would insist that it “impose” conditions, it would have found a way to do that–consistent with understandings that Hancock Village conditions were meant to be permanent.

Now the Brookline parties need to persuade the SJC that the Court of Appeals made a mistake, insisting on procedures that the appeals court prescribed decades after the facts of 1946, rather than considering the substance of what happened in Brookline then.

– Craig Bolon, Brookline, MA, November 13, 2015


Docket, Town of Brookline and others v. Massachusetts Development Finance Agency and another, case number FAR-23838, Massachusetts Supreme Judicial Court, filed October 16, 2015

Memorandum and order, Town of Brookline and others v. Massachusetts Development Finance Agency and others, case number 2014-P-1817, Massachusetts Court of Appeals, September 25, 2015

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, Massachusetts Court of Appeals, July 2, 2014

Hancock Village 1946 Agreement, Article 23, Annual Town Meeting, March 19, 1946, from Brookline, MA, 1946 Annual Town Report, pp. 32-34

Rule 1:28, summary disposition, Massachusetts Court of Appeals, 2009

Stephanie J. Mandell, The history of rule 1:28, Massachusetts Bar Association, 2008

Hancock Village lawsuit: Brookline’s appeal dismissed, Brookline Beacon, September 29, 2015

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

Advisory subcommittee: new crews needed to right ships

Gathering in the large, first-floor south meeting room at Town Hall starting at 7:30 pm Wednesday, October 14, the Advisory subcommittee on planning and regulation heard two articles for the fall town meeting, scheduled for November 17.

Subcommittee members found that Article 12, offered by member Lee Selwyn to revise the meaning of “habitable space” under zoning, needed substantial review. They proposed referring the article to a committee to be appointed by Edward “Sandy” Gadsby, the moderator of town meeting, and Mr. Selwyn agreed.

Park land for Putterham neighborhoods: The subcommittee took a similar approach to Article 15, from petitioners led by Regina Frawley, a Precinct 16 town meeting member. However, circumstances are different. Convening a special review committee is actually what Article 15 asks for. It represents a long detour, starting from an article approved at the May 26, 2015, annual town meeting.

In Putterham neighborhoods–the southernmost parts of Brookline–as Ms. Frawley argued last spring, there is little public open space. During years of the Great Depression, when much development in those neighborhoods was underway, Brookline did not acquire park and playground land, as it had done earlier in other parts of town. The only sizable areas remaining as potential recreation space are the so-called “buffers” on the north side of Hancock Village.

Following development concepts worked out with the Brookline Planning Board during 1945 and 1946, when the John Hancock Mutual Life Insurance Co. developed Hancock Village, it left unbuilt land adjacent to single-family houses along Beverly and Russett Rds. Since then, that land has often served informally as recreation space for residents of Hancock Village, as well as those of nearby streets.

The Hancock Village buffers soon came under attack. First the Hancock Co., in the 1950s, and then the next owner–the Niles Co.–in the 1960s, applied to turn the buffers into parking lots. The apartment zoning approved at the 1946 annual town meeting had left the buffers part of the large single-family zone to the north, which does not allow parking lots. The Zoning Board of Appeals turned down the applications.

Recent perils: More recently, the current owner–a subsidiary of Chestnut Hill Realty–has proposed to build both parking lots and more apartments on the buffers. The proposal, approved by the Zoning Board of Appeals last February, draws on provisions of Chapter 40B of the General Laws to override zoning in return for partly subsidized housing.

The current Board of Selectmen and its predecessor opposed the Hancock Village 40B project, although neither has been successful so far. The predecessor board–including Kenneth Goldstein and Betsy DeWitt–sued the Massachusetts Development Financing Agency for issuing a “project eligibility letter,” allowing the project application to proceed. That lawsuit has been dismissed at both superior court and the Court of Appeals.

While considering further appeal of the first case, the Board of Selectmen–now including Nancy Heller and Bernard Greene–is suing members of the Brookline zoning board in Land Court for approving the Hancock Village 40B project. A hostile motion to dismiss is pending in that case, building on the loss by the Board of Selectmen at the Court of Appeals.

The Board of Selectmen now looks mired in conflicts around a proposal to use land at Hancock Village for recreation. Besides the two lawsuits, at this year’s annual town meeting, recently elected board member Nancy Heller filed Article 17, promoting changes to the 40B law that would authorize “local elected officials” to make “binding recommendations” on 40B projects.

Reviewing recreation land: When this year’s annual town meeting approved Article 18, asking the Board of Selectmen to “study and consider in good faith” taking the Hancock Village buffers as permanent recreation land, almost everyone assumed the board would appoint an independent, expert review committee. However, nothing like that has happened so far.

Instead, about a month later, the board sent the Advisory Committee a $15 thousand reserve fund request to hire a consultant, who would work with town staff reporting to the board. The Advisory Committee took note of Massachusetts cases involving conflicts between 40B projects and land takings for other purposes, when refusing to fund a consultant interacting with the Board of Selectmen.

While land taking for community uses is possible, even though a 40B project has claims, it must occur in “good faith” and not mainly to block a project. Involvement by the Board of Selectmen in a proposal for Hancock Village land, given their conflicts, looks to risk poisoning the well and defeating an attempt to acquire land for recreation.

Seeing a Board of Selectmen seemingly frozen on recreation land issues, doing nothing constructive, Ms. Frawley and co-petitioners filed Article 15 for the November town meeting. It calls for a special review committee, to be appointed by the Advisory Committee and the moderator of town meeting. That could separate the recreation land issues from the Board of Selectmen and allow them to be reviewed in “good faith.”

Recommendation: For the subcommittee, Ms. Frawley briefly reviewed activities related to recreation land at Hancock Village since May. According to her, Melvin Kleckner, the town administrator, opposed an independent committee to review the issues–at first claiming to be “too busy” to meet with her and then, two weeks later, saying he intended to hire a consultant.

Mr. Kleckner is a town employee who lives elsewhere, not an elected official of Brookline. Since he was apparently involved in withholding information about a $200 thousand cost overrun during the May town meeting, his relations with the Advisory Committee have become rocky at best. One long-term committee member, reportedly fed up with disrespectful treatment, has resigned from the committee.

According to Ms. Frawley, Mr. Kleckner said the issues of recreation land are “too challenging” for mere citizens. Somehow though, over the years, Brookline citizens managed acquisitions of Hall’s Pond, Amory Woods and the Blakely Hoar Sanctuary, plus more than 100 park and playground parcels, without need for Mr. Kleckner’s consultants.

Subcommittee member Lee Selwyn recalled the $15 thousand reserve fund request for a consultant that had been rejected, suggesting that a committee may need “paid expertise.” Ms. Frawley said the committee could assess its needs. Stanley Spiegel, the subcommittee chair, said nine messages in support of Article 15 and one opposing it were on record so far. The subcommittee favored Article 15 and recommended approval, in a unanimous vote.

– Beacon staff, Brookline, MA, October 16, 2015


Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Comprehensive permit for The Residences of South Brookline, LLC, on the site of Hancock Village, Zoning Board of Appeals, Town of Brookline, MA, February 20, 2015 (4 MB)

Board of Selectmen to Land Court: you win, Brookline Beacon, October 5, 2015

Hancock Village lawsuit: Brookline’s appeal dismissed, Brookline Beacon, September 29, 2015

Advisory Committee: probing a disconnect, Brookline Beacon, July 29, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

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

Advisory Committee: new park land for Putterham neighborhoods, Brookline Beacon, April 10, 2015

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

Board of Selectmen to Land Court: you win

On Tuesday, September 29, three members of the Zoning Board of Appeals who are being sued for awarding a permit allowing a Chapter 40B development at Hancock Village met in a rare closed session. The judge hearing the Land Court lawsuit against them had threatened to remove Joslin Murphy, Brookline’s town counsel, from representing the Board of Selectmen if no legal representation were provided for the appeals board members. Appearances to represent the three were filed the following day, just before the deadline.

Eye on the money: There have been no agenda items for the Board of Selectmen to allocate money for such a purpose from the contingency fund or make a request from the reserve fund. That leaves the outside services budget for the Office of Town Counsel as a likely source of funds. The costs could put substantial pressure on a budget account that already seems overstressed.

The new appearances at the Land Court for zoning appeals members were from Kathryn Murphy and Jill Meixel of Krokidas & Bluestein in Boston. Ms. Murphy of the Krokidas firm was one of two lawyers from that firm hired to advise the zoning appeals board during hearings on the Hancock Village Chapter 40B application. Spending on outside services during that episode averaged around $25,000 a month.

The Office of Town Counsel is also bearing costs of representing the Board of Selectmen in the Land Court case. During the Hancock Village episode, outside legal bills totaled $295,121, far more than the outside services budgets for the Office of Town Counsel. The Advisory Committee was approached multiple times to tap the reserve fund. A double burden of costs had been observed last April by committee member Lee Selwyn, who said the town was “turning the heat and the air conditioning on at the same time.”

Next events: While the Board of Selectmen apparently did not participate in funding recent legal services, it is nearly inconceivable they would not have been informed. The board can probably dodge bullets for a while, but as costs mount either they will have to abandon their Land Court lawsuit or else they will need to go back to a skeptical Advisory Committee for more money.

At Land Court, Judge Gordon Piper has scheduled a status hearing as part of a court session starting at 10 am on Friday, October 16. He also took official notice of the Court of Appeals rulings issued September 25, undercutting at least one key element of the Land Court case.

– Beacon staff, Brookline, MA, October 5, 2015


Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others, Massachusetts Land Court case 2015-MISC-000072, filed March 11, 2015 (click button to search public records, select Land Court Department and Case Number tab, enter case number “15 MISC 000072″ and click Search button, click any Case Number item for “15 MISC 000072″)

Memorandum and order, case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, September 25, 2015

Hancock Village lawsuit: Brookline’s appeal dismissed, Brookline Beacon, September 29, 2015

Land Court to Board of Selectmen: put up or shut up, Brookline Beacon, September 20, 2015

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

Advisory Committee: missing records, more skeptical outlooks, Brookline Beacon, April 2, 2015

Hancock Village lawsuit: Brookline’s appeal dismissed

Brookline’s first lawsuit over a Chapter 40B housing development Hancock Village has lost, in what looks tantamount to a final outcome. Following a hearing on September 14, 2015, the Massachusetts Court of Appeals issued a speedy decision with a written memorandum, dated September 25. Earlier, adverse superior court rulings were upheld on both their major points: the effects of a 1946 agreement with the John Hancock Life Insurance Company and the effects of 2008 changes to state regulations for Chapter 40B developments.

Arguments and rulings: The Appeals Court wrote that the 1946 agreement had expired in 30 years, under state law. In finding that the agreement was not currently recognizable under Massachusetts law, its memorandum cited procedures that had been followed. Quoting from a recent case, the court said that a recognizable agreement would have to be “land use restrictions imposed as a condition to the discretionary grant of regulatory approval.” [Samuelson v. Planning Board of Orleans, Court of Appeals, 2014]

Instead of restrictions imposed during regulatory approval, the 1946 procedures had involved a voluntary agreement by the original developer, the John Hancock Company, offered as an inducement to allow apartment zoning. The Court of Appeals found those procedures similar to ones of a will or trust, saying that the agreement had therefore expired in 30 years.

The main issue in the original superior court case brought by Brookline had been a challenge to a “project eligibility letter” for the Chapter 40B development, issued by the Massachusetts Development Finance Agency. The town contended that the agency had not followed state regulations, saying that a lawsuit was its only recourse, since 2008 changes in state regulations had eliminated administrative remedies.

The Appeals Court disagreed–writing, without explanation, that it was “unpersuaded by the plaintiffs’ argument.” According to the memorandum, “The issuance of a project eligibility letter is a necessary precondition to consideration of a comprehensive permit application, but it is not final action on the permit.” The Appeals Court cited the case relied on by the superior court. [Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

Prospects: Like its ruling on the 1946 agreement, the Appeals Court’s ruling on the 2008 regulations turns on a balance of factors and could conceivably have gone the other way. However, both are plainly stated interpretations of state law, citing recent cases at the Appeals Court. A further appeal to the Supreme Judicial Court is surely possible but would look to be a steep, uphill struggle.

The recent ruling appears to collapse a case that the Board of Selectmen filed later in the Land Court, challenging the comprehensive permit granted by Brookline’s Zoning Board of Appeals. A key argument in that case invoked the 1946 agreement, which the Appeals Court ruled has lapsed.

Other arguments, concerning suitability of the development plan for the Hancock Village site, have typically been difficult to sustain in legal challenges against Chapter 40B projects. The Board of Appeals heard over a year of testimony, received major concessions from the Hancock Village developers and imposed over 60 conditions–reducing the scale of the project.

An alternative: Pursuing an alternate vision for Hancock Village, Regina Frawley, a Precinct 16 town meeting member, filed Article 18 for annual town meeting of May, 2015. It sought a study of acquiring the Hancock Village “buffers” for permanent recreation and open space. Those are unbuilt strips of land near Russett and Beverly Roads that had been set aside, separating Hancock Village from the nearby single-family houses, following 1940s agreements with the Town of Brookline.

So far, no such study has been published. To surprise of many in the community, the Board of Selectmen has failed to appoint an independent, objective study committee–as generally expected when the May, 2015, town meeting approved Article 18. Seeing the lack of progress, Ms. Frawley filed Article 15 for the upcoming November, 2015, town meeting. It seeks an independent, objective study committee to be appointed by the moderator of town meeting and by the Advisory Committee.

Ms. Frawley found the recent Appeals Court decision on the Web and distributed it to people who have been concerned about the proposed Hancock Village development. However, she has not become involved with the Hancock Village lawsuits. She continues to pursue her original vision: to provide Brookline’s southernmost neighborhoods with permanent recreation and open space that, so far, they have never enjoyed.

– Beacon staff, Brookline, MA, September 29, 2015


Memorandum and order, case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, September 25, 2015

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, July 2, 2014

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Appeals Court: Brookline v. MassDevelopment, Brookline Beacon, September 15, 2015

Craig Bolon, Court of Appeals: Brookline’s first lawsuit over Hancock Village, Brookline Beacon, September 12, 2015

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

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

Land Court to Board of Selectmen: put up or shut up

In a case of dueling boards–Selectmen versus Zoning Appeals–the Massachusetts Land Court filed a written ruling on the motion of another defendant, Chestnut Hill Realty. It seeks to disqualify Town Counsel Joslin Murphy and her staff from participating in the main challenge to a proposed Chapter 40B housing development at Hancock Village.

In an odd sort of process, that ruling has been posted to the online Docket Information page for the Land Court case, making it available to anyone without a trip to see the clerk of the court. As apparent before and at the Land Court hearing, the Board of Selectman and the town counsel look to be in a pickle.

In effect, the court wrote to that board: Put up (a lawyer for the Zoning Board of Appeals) or (we shall) shut up (the town counsel as your representative). Judge Piper’s docket entry reads a bit like George Ade on steroids, for those who remember the notable Chicago Record journalist (1866-1944). Text follows.

“09/03/2015, Event: Motion scheduled for 09/03/2015 10:00 AM

“Result: Hearing Held on Private Defendant’s Motion to Disqualify Brookline Town Counsel. Attorney Murphy Appeared for Municipal Plaintiffs. Attorney Talerman Appeared for Individual Plaintiffs. Attorney O’Flaherty Appeared for Private Defendant. No Counsel Appeared for Defendant Members of the Board of Appeals. Following Argument, Court Made its Ruling[s] from the Bench, Which Are Summarized Generally Below.

“Subscribing to the View That Courts Should Be Reluctant to Disqualify Counsel, That Clients Are Entitled to the Counsel of Their Choice, and Relying Greatly on the Ethical Awareness of Lawyers, Court Is Nonetheless Troubled by the Posture of this Litigation. Here, the Board and its Defendant Members Remain Unrepresented, the Court Is Unable to Know Their Level of Satisfaction (Or Not) with That Situation, and it Is Evident that those Who Control Municipal Plaintiff’s Prosecution of this Action Have Taken No Effective Steps to Provide These Defendant Board Members with Counsel. They Thus Are Left Unable to Defend, to Participate in, and to Be Heard in this Litigation.

“This Is Not the Common Situation Where a Municipal Board Stands down During Litigation to Allow the Private Defendant (The Permit Recipient) to the Mount a Defense of the Challenged Permit. Here, the Permit Has Been Challenged by the Town Itself, Acting Through its Board or Selectmen, Claiming an Injury to the Town’s Interest as an Abutting Landowner. All Parties Agree, as They Must, That If a Law Firm Represented the Applicant During the Permitting Process, and Then, Once a Permit Had Issued, Attempted to Represent an Abutting Landowner in Challenging the Same Permit, the Court Would Be Obligated to Disqualify that Law Firm Under Mass. R. Prof. C. 1.7 [because there is a concurrent conflict of interest under 1.7(a), coupled with a claim by one client against another under 1.7(b)(3)].

“Here, Counsel for Plaintiffs Attempts to Distinguish the Instant Case by Arguing, First, That Town Counsel Commonly Represents Multiple Municipal Interests Simultaneously, Which Interests Do Not Always Perfectly Align, and Second, That Notwithstanding this Broader View of the Role and Obligations of Government Lawyers, That Here the Defendant Board of Appeals Was Afforded Special Counsel During the Permitting Process So There Is No Conflict in Fact.

“Even Recognizing the Broader Latitude Given Government Lawyers When Analyzing Their Possible Conflicts, the Court Concludes That this Is One of Those Troubling Cases Where it Might Be Obligated to Disqualify Municipal Counsel. While There Has Been No Hard Showing That Town Counsel Possesses Some Confidential Information Gained Giving Earlier Advice to the Board, the Existence of Any Such Confidences Is Very Hard to Learn Because the Party That Would Normally Object (The Former Client) Is the Board of Appeals, Which Has No Ability or Opportunity to Make Such a Concern Known to the Court; the Private Defendant, Who Brings the Motion to Disqualify, Has No Way of Knowing Whether Confidences Have Been Exchanged or Not.

“The Record Does Make Clear That the Office of Town Counsel Previously Rendered Advice, Shared with the Zoning Board, about Two Important Legal Issues in Connection with the Comprehensive Permit: the Effect of the 1946 Agreements Between the Town and the Prior Owners of the Site, and the Validity of Site Eligibility Determinations for the Project. Those Issues Are Central to the Attack the Town, Now Represented as Plaintiff by Town Counsel, Makes Against the Comprehensive Permit in Both this Litigation and in the Superior Court Case Now Before the Appeals Court.

‘Without Diminishing the Court’s Concern That this Is a Case Where a Conflict May Exist, the Court Nonetheless Defers Ruling on the Motion to Disqualify at this Time, in the Hope That Some Attention Will Be Paid to Obtaining Separate Counsel for the Board of Appeals. If Separate Counsel Appears and Assures the Court That the Board of Appeals Does Not Object to the Ongoing Representation of the Plaintiff by Town Counsel, That Would Go a Long Way to Satisfy the Court That the Motion to Disqualify Ought to Be Denied.

“If, on the Other Hand, There Is a Continuing Inability to Hear from the Board, Court Would Be Inclined to Allow the Motion to Disqualify. Parties Are to File No Later than September 30, 2015 a Report on the Status of Representation of the Board of Appeals; If by That Date No Appearance on Behalf of the Board of Appeals Has Been Filed, the Court Will Proceed Either to Rule on the Motion to Disqualify Without Further Hearing, to Schedule Further Hearing, or to Make Other Appropriate Orders.”

So far, no funding to support legal counsel for the Zoning Board of Appeals has shown up on agendas for the Board of Selectmen. September 30 is a Wednesday. Before then, the Board of Selectmen scheduled two more meetings: on Thursday, September 24, and on Tuesday, September 29. Funding for a town board would clearly be public business. Trying to hide it in closed session, perhaps under a rubric of “litigation,” would not appear consistent with the state’s open meeting law.

– Beacon staff, Brookline, MA, September 20, 2015


Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others, Massachusetts Land Court case 2015-MISC-000072, filed March 11, 2015 (click button to search public records, select Land Court Department and Case Number tab, enter case number “15 MISC 000072″ and click Search button, click any Case Number item for “15 MISC 000072″)

Massachusetts Rules of Professional Conduct, Massachusetts Supreme Judicial Court, 2015 (2 MB)

Massachusetts Rules of Civil Procedure, Massachusetts Trial Court Law Libraries, 2015 (2 MB)

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

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

Craig Bolon, Open meetings in government: groping toward transparency, Brookline Beacon, August 10, 2014

Appeals Court: Brookline v. MassDevelopment

This Monday, September 14, at the Massachusetts Court of Appeals, Brookline presented arguments contesting a state-issued “project eligibility letter” for a proposed Chapter 40B housing development at Hancock Village. The case had begun at superior court in November, 2013. It was on appeal from an adverse ruling issued in September, 2014, allowing motions for summary judgment.

Twenty judges now serve on the Appeals Court. The panel for case number 2014-P-1817 consisted of Elspeth B. Cypher, appointed in 2000, Mark V. Green, appointed in 2001, and Sydney Hanlon, appointed in 2009. The case and court hearing attracted considerable interest, with five amicus briefs filed. Half a dozen Brookline town meeting members came to the hearing, held at the 1893 John Adams Courthouse in Boston on a sunny, mild day.

Town Counsel Joslin Murphy argued for the Town of Brookline. Benjamin Tymann argued for the Massachusetts Development Finance Agency (MDFA) and its chief, Martha “Marty” Jones of Winchester. Jason Talerman argued for other plaintiffs, several homeowners whose properties abut Hancock Village. Kevin O’Flaherty argued for the subsidiary of Chestnut Hill Realty (CHR), owner of Hancock Village, that applied for the 40B development.

Issues and arguments: Issues that were argued Monday emerged in briefs submitted early this year. With the procedure the Appeals Court follows, each lawyer got seven or eight minutes of presentation plus questions and answers–a brisk pace. The underlying contested issues were well known:
(1) Whether MDFA followed regulations when issuing a “project eligibility letter,” and
(2) Whether a 1946 agreement with the Town of Brookline still regulates Hancock Village.

Ms. Murphy and Mr. Tymann argued about the “project eligibility letter.” Mr. Talerman and Mr. O’Flaherty argued about the 1946 agreement. The basic issue about whether MDFA followed regulations for a “project eligibility letter” had been confounded by MDFA and CHR lawyers at superior court, contending that Brookline had not exhausted administrative remedies, citing a 2007 case. That side-issue dominated the Appeals discussions. [Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

Initial questions from judges showed some unfamiliarity with Chapter 40B law and regulations, particularly those from Judge Green, who seemed to confuse the role of a local zoning appeals board with that of the state Housing Appeals Committee. Both plaintiff and defendant lawyers tried to fill gaps. Judges seemed to grasp circumstances somewhat better as the hearing went on.

Project eligibility: In arguing about the “project eligibility letter,” Ms. Murphy stressed a point made in the Town of Brookline brief: that MDFA failed to follow state regulations. Judge Green tried to steer toward MDFA and CHR viewpoints, but Ms. Murphy would not go there. After Judge Hanlon asked for clarification, she taught a short course: Chapter 40B in half a minute.

State regulations in 760 CMR 56.04(4)(b) require an agency reviewing a 40B project to consider whether a site is “generally appropriate for residential development” and whether a “conceptual project design is generally appropriate for the site.” For both elements, they require a “finding, with supporting reasoning, to be set forth in reasonable detail.” According to regulations as revised in 2008, if a state agency fails to follow the rules, there is no administrative remedy. Only developers now have any administrative appeal rights.

As in the MDFA defense brief, Mr. Tymann tried to string a tripwire, arguing that a “project eligibility letter” reflected only a “preliminary review.” Judge Green, perhaps having absorbed some instruction, queried, “The town can’t appeal to HAC?”–meaning the state’s Housing Appeals Committee.

“The town,” responded Mr. Tymann, “has opportunities…at ZBA hearings”–meaning at its local zoning board. “The project eligibility letter is a ticket to the dance contest. It does not mean you win.” Judge Hanlon sounded unconvinced. She asked, “Then anything else is off the table? Appropriateness of the site?” Mr. Tymann tried to skirt the issue. “The Land Court,” he said, “is reviewing all those issues.”

The Brookline case in Land Court, challenging a “comprehensive permit” issued by the Brookline Zoning Board of Appeals, did not begin for more than a year after its case against MDFA in superior court, challenging the “project eligibility letter.” If Brookline had been able to obtain prompt and thorough consideration in superior court, the Appeals Court and Land Court cases might not have happened.

Contract zoning: Mr. Talerman sketched background of the 1946 agreement between the Town of Brookline and the John Hancock Life Insurance Company, which convinced town meeting to rezone the property now called Hancock Village for apartments. As in the Town of Brookline brief, he cited two prior Appeals Court cases finding that public agreements over use of land were permanent.

Judge Green asked how the 1946 agreement differed from deed restrictions that expire after 30 years. Mr. Talerman responded that the distinction was made on the basis of public participation, involving a discretionary grant of regulatory authority. It has been a developing area of law, he said.

Mr. O’Flaherty called the 1946 agreement a “private agreement,” claiming it had lapsed after 30 years. Judge Hanlon asked how the circumstances differed from prior cases Mr. Talerman cited, in which towns allowed some zoning privileges in return for some restrictions. Mr. O’Flaherty said the 1946 agreement had “preceded a change in zoning.” Indeed it had, but only by a few days before Brookline’s town meeting voted on zoning.

Moreover, said Mr. O’Flaherty, by its terms the 1946 agreement lapsed if Brookline did not maintain the zoning enacted at the 1946 town meeting. Later, he said, Brookline had changed the Hancock Village zoning, claiming that “abrogated the agreement.” What happened was that in 1962 Brookline changed to a new zoning system. Within the new system, it created a special type of zone designed to be equivalent to the older type of apartment zoning assigned to Hancock Village in 1946.

After the hearing, Mr. Talerman explained that the Town of Brookline brief for the case had covered that issue. It was expected to be addressed during trial in superior court. So far, the trial has not occurred, because the superior court judge allowed a motion for summary judgment without considering such arguments.

Awaiting justice: Decisions in Court of Appeals cases are often accompanied by published opinions when they involve new directions in law, as this one seems to. However, those decisions are not particularly speedy. A survey of recent civil cases suggests Brookline might expect an Appeals Court decision in early 2016, probably well before the annual town meeting.

– Beacon staff, Brookline, MA, September 15, 2015


Docket for case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, filed November 14, 2014

Plaintiff’s initial brief, Case 2014-P-1817, Massachusetts Court of Appeals, January 12, 2015

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Craig Bolon, Court of Appeals: Brookline’s first lawsuit over Hancock Village, Brookline Beacon, September 12, 2015

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Court of Appeals: Brookline’s first lawsuit over Hancock Village

Proposed development at Hancock Village in south Brookline has led to two lawsuits filed in state courts on behalf of the Town of Brookline. News reports so far don’t explain much about the differences between them. The first case, begun in 2013, challenges actions of a state agency. The second case, begun in 2015, challenges actions of the Brookline Zoning Board of Appeals. The first case is at the Massachusetts Court of Appeals in Boston on Monday, September 14 for a hearing on the merits.

Development plans: Between 2008 and 2011, executives at Chestnut Hill Realty (CHR) promoted plans for major development at Hancock Village, proposing up to 466 new housing units. Responses from nearby neighborhoods and Brookline government varied from concern to alarm. In November, 2011, Brookline enacted a neighborhood conservation law, making Hancock Village the first regulated district.

In 2012, CHR abandoned plans for conventional development under zoning, turning instead to Chapter 40B of the General Laws, Sections 20-23 and aiming to force through development in return for partly subsidized housing. To start such an approach, CHR needed sponsorship from a state agency. Rather than look to agencies mainly oriented to housing, CHR approached the Massachusetts Development Finance Agency (MDFA). Proposals were made through a CHR subsidiary called Residences of South Brookline, LLC.

In late 2012 and early 2013, MDFA reviewed a CHR proposal to add 271 housing units in 12 new buildings. This plan was similar to other CHR plans in its overall approach. There would be a high-rise structure over a rock outcrop, previously considered unbuildable: five stories of apartments above two stories of parking. There would also be 11 low-rise structures on unbuilt land near Russett and Beverly Roads that had been reserved as “buffers” following 1940s agreements with the Town of Brookline.

MDFA sought comments from Brookline and visited the site in December, 2012. In February, 2013, MDFA drafted a response, rejecting the CHR proposal because it was “not generally appropriate for the site.” The agency cited “complete elimination of the greenbelt buffer” and “massing of the…five-story building.” Possibly tipped off to impending rejection, CHR withdrew its proposal just before the response was to be sent.

The following June, CHR proposed to MDFA a revised project with 192 new housing units in 13 new buildings. Now, over the rock outcrop, there would be four stories of apartments above two stories of parking. Although the project still eliminated the greenbelt buffer and it still included a high-rise looming over the neighborhood, built over a rock outcrop, this time MDFA approved, sending a “project eligibility letter” in October, 2013.

Reversing its previously pending rejection, MDFA offered a sentence of justification. That said the project “is generally appropriate for the site taking into account factors such as proposed use, conceptual site plan and building massing, topography, environmental resources and integration into existing development patterns.”

Court of Appeals case: Within a few weeks, the Town of Brookline filed a case against MDFA in superior court, challenging validity of the project eligibility letter. As part of this first lawsuit over Hancock Village, the Town of Brookline also asserted rights under a 1946 agreement with the John Hancock Life Insurance Company, providing enduring restrictions on Hancock Village in return for the 1946 rezoning to allow construction of apartments.

In superior court, lawyers for CHR filed motions for summary judgment, arguing that claims by the Town of Brookline were inconsistent with prior cases and with state law. The circumstances are complex, but after a brief hearing on the motions, without considering circumstances in detail, Judge Patrick F. Brady of Norfolk Superior Court allowed the motions. Brookline appealed. On Monday, September 14, the circumstances will be reviewed in detail for the first time by a full panel at the Court of Appeals.

There are two main issues in the appeal:
(1) Did Judge Brady at Norfolk Superior Court make an error in dismissing claims by the Town of Brookline that the project eligibility letter was issued without adequate justification?
(2) Did Judge Brady make an error in dismissing Brookline claims about rights under a 1946 agreement with the John Hancock Life Insurance Company that led to rezoning Hancock Village for apartments?

Issue (2) might be of more interest to the second Brookline lawsuit–against the Zoning Board of Appeals, seeking to overturn the “comprehensive permit” the zoning appeals board granted this year. However, it was also cited in the first lawsuit–against MDFA. There it was opposed by CHR lawyers, through one of the summary judgment motions Judge Brady allowed–boosting the 1946 agreement into an early appellate orbit.

Project eligibility letter: Issue (1) arguments pressed by the Town of Brookline against MDFA claim the agency failed to follow state regulations. Under 760 CMR 56.04(4)(b), those require an agency reviewing a 40B project to consider whether a site is “generally appropriate for residential development” and whether a “conceptual project design is generally appropriate for the site.”

In both instances, state regulations require a “finding, with supporting reasoning, to be set forth in reasonable detail.” The Town of Brookline asserted that the agency merely recited, like cookbook exercises, the types of 760 CMR 56 findings it would need to make but did not explain them with “supporting reasoning” of any kind, much less with “reasonable detail.” [Plaintiff's initial brief, pp. 25-27]

The Town of Brookline asserted it has no useful remedy other than a lawsuit, because a change to state regulations in 2008–apparently made for the convenience of the state Housing Appeals Committee–relabeled agency findings for project eligibility letters “conclusive” and eliminated administrative reviews. [Plaintiff's initial brief, pp. 27-29]

For issue (1) MDFA owns the heavy lifting. Its response was bulked up with dozens of pages of regulations, case memoranda and official announcements. However, the gist of the defense came down to a bald assertion that a project eligibility letter is “merely an interim step” in project approval, quoting a Massachusetts case made obsolete by 2008 changes to state regulations. [Defendant's brief from MDFA, p. 1, quoting Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

The brief filed for MDFA danced around Brookline’s arguments about lack of justification for a project eligibility letter. It tried to treat a summary judgment allowed in superior court, after a brief hearing during a motion session, as though it were a settled matter of law. Instead, the purpose of an appeals case is to examine reasoning applied by a lower court. [Defendant's brief from MDFA, p. 7] [Standard of review, in Plaintiff's initial brief, p. 13]

For this case, there is little reasoning from a lower court to be examined. At Norfolk Superior Court, Judge Brady merely stated that he “remain[ed] of the view that [the Marion case] applies,” without explaining why it should–over arguments from the Town of Brookline that changes in state regulations made it obsolete. [Plaintiff's initial brief, pp. 23, 27-29 and 31-33]

The brief filed for MDFA also claimed that the state provides for a “post-permit review”–apparently meaning administrative procedures after a “comprehensive permit” has been granted. However, post-permit procedures do not include comments, and they focus on “cost examination.” There is no process for an appellant to challenge whether a site is “appropriate for residential development” or whether a “conceptual project design” is “appropriate for the site.” [Massachusetts regulations 760 CMR 56.04(7), final approval]

As the Town of Brookline observed, without a court review “of project eligibility, abutters [including the Town of Brookline] are left without any meaningful recourse.” They might have a further opportunity for administrative review only if the developer were dissatisfied with Brookline zoning appeals board actions and sought relief from the state Housing Appeals Committee. However, CHR representatives stated at a public hearing that they were satisfied with outcomes from the zoning appeals board. [Plaintiff's reply brief, p. 6]

The brief filed for CHR also opposed court review of a project eligibility letter, ignoring 2008 revisions to state regulations that closed off administrative appeals and claiming project eligibility is not a “final agency action.” CHR accused the Town of Brookline of trying to subvert purposes of Chapter 40B, Sections 20-23 with “lengthy and expensive delays occasioned by court battles.” [Defendant's brief from CHR, p. 19]

In response, the Town of Brookline quoted the court opinion in the same case CHR referenced, “…interest in…affordable housing must be balanced against…protection of health and safety…and preservation of open space.” [Plaintiff's reply brief, p. 8, quoting Standerwick v. Zoning Board of Appeals of Andover, Supreme Judicial Court, 2006]

Like MDFA, CHR did not respond to the Town of Brookline’s argument that “post-permit review” leaves no process for an appellant to challenge whether a site is “appropriate for residential development” and whether a “conceptual project design” is “appropriate for the site.” [Defendant's brief from CHR, pp. 23-25] [Massachusetts regulations 760 CMR 56.04(7), final approval]

Contract zoning restrictions: Issue (2) arguments pressed by the Town of Brookline against MDFA and CHR claim the proposed project would violate terms of a 1946 agreement with the Town of Brookline by the John Hancock Life Insurance Company. For this issue CHR owns the heavy lifting, since its financial interests are at stake.

At Norfolk Superior Court, MDFA and CHR claimed that any requirements from the 1946 agreement had been extinguished after 30 years by Chapter 184, Section 23 of the General Laws. However, that law governs recorded deed restrictions. Previous Massachusetts cases held that it does not limit public agreements, including ones sometimes called “contract zoning.” [Plaintiff's initial brief, pp. 3-4 and 14-19, quoting Killorin v. Zoning Board of Appeals of Andover, Court of Appeals, 2011]

The Appeals Court may regard the Killorin case as particularly relevant, since two of the three judges who heard that case have been assigned to the current Brookline case: Elspeth B. Cypher and Sydney Hanlon. The Town of Brookline asserts that it has a continuing interest in the 1946 agreement, that the proposed project would violate the agreement and that at Norfolk Superior Court Judge Brady conducted a “myopic review,” finding the Killorin decision applied only to a special zoning permit. [Plaintiff's initial brief, p. 21]

The brief filed for CHR did not respond forthrightly to arguments from the Town of Brookline. Instead, CHR asserted, “It is settled…restrictions which burden land such as those contained in the 1946 agreement can only be enforced for a period of 30 years.” However, whether or not that may be true is a main dispute in the current Appeals Court case. Wishing won’t make it so. [Defendant's brief from CHR, p. 28]

The CHR brief repeated arguments offered at Norfolk Superior Court, saying that the Killorin case “involved conditions imposed on a property by a special zoning permit.” However, the court’s summary of its decision shows it regarded special permits as examples, writing that the law at issue “did not apply to conditions or restrictions set by a government agency such as a local zoning board of appeals as part of the process of granting a special permit. [Defendant's brief from CHR, p. 28] [Killorin v. Zoning Board of Appeals of Andover, Court of Appeals, 2011, emphasis added]

CHR based its brief on selected quotations from court opinions, trying to argue that exceptions to the law limiting deed restrictions to 30 years applied only to special zoning permits or subdivision control, topics under which cases arose. A recent Appeals Court decision expressed a broader view, as the Town of Brookline argued in its response. [Plaintiff's reply brief, pp. 10-11]

The recent decision said, “The holding of Killorin does not turn on the identify of the local board or on the particular nature of the regulatory decision at issue.” It explained that “the key distinction was…the discretionary grant…under the police power”–that is, the general regulatory powers of a municipality. [Samuelson v. Planning Board of Orleans, Court of Appeals, 2014]

Analysis: In its fairly aggressive reaction to the project eligibility letter issued by MDFA, the Town of Brookline appears to be pursuing a strong remedy, seeking early intervention by a superior court rather than waiting for a “comprehensive permit” and then asking for intervention from the Land Court, as Brookline now has also done.

The main argument for early intervention by a superior court has been a claim that 2008 revisions of state regulations closed off avenues for administrative appeals. MDFA and CHR objected that no right to early intervention is provided by state law, but they did not address an equity argument that administrative remedies formerly available have been withdrawn.

In bidding to sustain a 1946 contract zoning agreement, the Town of Brookline is also treading on unusual territory. So far, no one has cited another such agreement by a Massachusetts town that was brought to a town meeting rather than negotiated through a planning board or zoning appeals board. The extensions from circumstances of prior cases may seem obvious, but they are hardly foregone conclusions.

– Craig Bolon, Brookline, MA, September 12, 2015


Docket for case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, filed November 14, 2014

Plaintiff’s initial brief, Case 2014-P-1817, Massachusetts Court of Appeals, January 12, 2015 (missing the preamble and table indexes)

Defendant’s brief from MDFA, Case 2014-P-1817, Massachusetts Court of Appeals, February 11, 2015 (11 MB, too large for the Brookline Beacon site, obtainable at Brookline Office of Town Counsel)

Defendant’s brief from CHR, Case 2014-P-1817, Massachusetts Court of Appeals, February 11, 2015 (10 MB, too large for the Brookline Beacon site, obtainable at Brookline Office of Town Counsel)

Plaintiff’s reply brief, Case 2014-P-1817, Massachusetts Court of Appeals, March 13, 2015 (4 MB)

Project eligibility letter, issued to Residences of South Brookline c/o Chestnut Hill Realty, Massachusetts Development Finance Agency, October 8, 2013

Draft denial of project eligibility, addressed to Residences of South Brookline c/o Chestnut Hill Realty, Massachusetts Development Finance Agency, February 13, 2013 (obtained by Town of Brookline via discovery)

Comprehensive permits [under Chapter 40B], Massachusetts regulations 760 CMR 56, Executive Office of Housing and Economic Development, 2015 (current version)

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, July 2, 2014

Eric H. Killorin and others v. Zoning Board of Appeals of Andover and another, 80 Mass.App.Ct. 665, October 14, 2011

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Eileen Standerwick and others v. Zoning Board of Appeals of Andover and another, 447 Mass. 20, June 16, 2006

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

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

Zoning Board of Appeals: Hancock Village 40B conditions, Brookline Beacon, January 6, 2015