Category Archives: Housing

Board of Selectmen: hearing airs racial tensions

A regular meeting of the Board of Selectmen on Tuesday, January 5, started at 7:05 pm in the sixth-floor meeting room at Town Hall. While North Korea was testing its first thermonuclear bomb, the board conducted a public hearing about what it called “diversity issues involving the town”–also an explosive catastrophe, at least on a local scale.

A standing-room-only audience of around 200 gathered in a hearing room with only about 100 seats. For many Brookline residents it was an evening of despair–airing incident after incident of racial discrimination, targeting and harassment–lasting more than two hours.

Commission statement: At its meeting the previous evening, the Diversity, Inclusion and Community Relations Commission had reviewed testimony and reports it received about racial issues affecting the Brookline work force. Alex Coleman, chair of the commission, read a statement to the Board of Selectmen that the commission had authorized.

Dr. Coleman said the commission, which began in January, 2015, “spent the last year trying to move forward.” Hopes for progress had been dashed at a December 16 meeting, when two Brookline police officers testified in open session that their department was afflicted with racial tensions, from which they personally suffered. Town government, according to the commission statement, has “a culture of institutional racism” that “the Board of Selectmen…allowed.”

The statement read by Dr. Coleman called on the Board of Selectmen, “as the elected leaders of the town, to exercise your responsibilities and duties, as commissioners of the Police and Fire Departments…to stamp out this culture. This is a matter of extreme urgency, which the Board of Selectmen needs to address with actions, not words, now.” Members of the board listened but did not comment.

Police testimony: Prentice Pilot, one of the two African-American police officers who spoke out on December 16, told the Board of Selectmen he had worked on the force for 17 years. He recalled another minority police officer who “went to the chief about racial incidents” a year ago, apparently joining Officers Pilot and Zerai-Misgun then, but got no action. In response to his recent complaint about a racial insult, he said, “the chief had a preliminary investigation” but called it “inconclusive.”

After his recent testimony to the Diversity, Inclusion and Community Relations Commission, Officer Pilot said, the commission “asked Selectman Greene to get more of the story…I haven’t heard anything from him.” Mr. Greene, the first African-American ever elected to the Board of Selectmen, became the board’s delegate to the commission and was present when Mr. Pilot testified on December 16.

Officer Pilot said a recent report on the racial climate in the Police and Fire Departments, sent to commission members, offers “insights from the Police Department leadership: no major incidents” in the department. “The chief,” he said, “had a free diversity report when the three of us went to him in December of 2014.” Applause from the audience lasted most of a minute.

Estifanos Zerai-Misgun, the other African-American police officer who spoke out on December 16, described “the chief’s assurance” of respect in the department. “He gave me his assurance a year ago,” said Officer Zerai-Misgun. “Nothing has changed…All you say is that you’re waiting…Nobody has contacted me.” He told the Board of Selectmen, “It is not a safe environment there. The chief failed me last year…Now you’re failing me today.”

Lee Smith, an African-American former police officer in Brookline, told the board about experiences starting in April, 1998. He also left a much longer version of his remarks in writing. As a beginning Brookline officer, he said, after he wrote a parking ticket a superior officer “chewed me up,” telling Mr. Smith, “That ticket belongs to a friend of mine.” Mr. Smith explained that there was a covert system of marking tickets to indicate they were supposed to be discarded and ignored, which he had not followed.

At a “diversity meeting” held more than 15 years ago, Mr. Smith said, fellow officers ridiculed the training, “complaining, ‘why do we have to be here for this?’” Written materials were distributed at the training, according to Mr. Smith. “I saw guys ripping it up, tossing it in the trash.”

Harassment complaints: Leslie Epps, who operates Finesse Florist on Washington St., told about experiences as an African-American living in Brookline and running a retail business. “I’ve experienced such racism,” said Ms. Epps. “I have filed complaints. These complaints have disappeared. There has been intimidation: ticketing my vehicle falsely, targeting my shop.”

Ms. Epps described herself as “keynote speaker” at the most recent Martin Luther King Day event in Brookline. Now, she said, “I have stress disorder…at the hands of Brookline police.” Not one to give up. Ms. Epps told the Board of Selectmen, “This is my country. I will not be moved…I am looking for restorative justice.”

Cruz Sanabria of Rice Street, a Marine veteran and a public school teacher in Boston, who was a member of the former Human Relations Commission, described harassment from neighbors and antagonism from Brookline police officers. In one incident, he said, he was falsely cited for a crime.

According to Mr. Sanabria, he was charged with “assault with a dangerous weapon…It was dismissed.” Mr. Sanabria told the Board of Selectmen, “The horror I went through is worse than anything else I have had in my life…You put me in a position that I shouldn’t have been in. Why? Because I’m Puerto Rican.”

Reactions: Brookline residents who are not members of a minority had strong reactions. Bob Miller of Copley St., a Precinct 8 town meeting member and a teacher at Heath School, told the Board of Selectmen, “I’ve heard talk about racism in Brookline,” calling it “an issue that can destroy the town that I love.” He urged “the strongest possible actions to let it be known that this will not be tolerated.”

Pat Bartels of Wolcott Rd. said her family “moved to Brookline because we believed it was going to be a caring and liberal community.” Her two children, she said, are graduates of Brookline High School. “Their friends were from Bulgaria, Cape Verde, Korea…from all over the world…Those are the values they shared.”

Shifra-Lilith Freewoman of Longwood Ave. was less forgiving. In Leslie Epps’s shop, she said, “She treated me like gold…It breaks my heart. Everybody black that I know has encounters with police in this town.” The problem, according to Ms. Freewoman, has been that “words don’t translate into clear action.” She told the Board of Selectmen, “If this board can’t do it, then let’s elect another board.”

Years ago: Andrew Leong of Marion Terrace described his experiences inside the Brookline Police Department many years ago. He is a professor of law at the University of Massachusetts in Boston. “We are sick and tired of more studies, more training,” said Prof. Leong. “I did that training 27 years ago.”

At the time, he said, “a black officer told me, ‘I’m so glad you came and spoke…All those racist things [are] happening to me on this police force.’” Referring to Officers Pilot and Zerai-Misgun, Prof. Leong said, “They are risking their jobs. What do we want? We want them to be on paid administrative leave.” Applause from the audience again lasted for most of a minute.

– Beacon staff, Brookline, MA, January 6, 2016


James Pearson and Tony Munroe, North Korea says successfully conducts first H-bomb test, Reuters (UK), January 6, 2016

Statement to the Board of Selectmen on institutional racism in the Brookline work force, Commission for Diversity, Inclusion and Community Relations, Town of Brookline, MA, January 4, 2016

Lee Smith, Statement at Brookline Board of Selectmen hearing, January 5, 2016

Diversity Commission: police and fire department report, Brookline Beacon, December 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

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

Cable services: renewing Comcast in Brookline

On Wednesday, September 16, starting at 7 pm in Town Hall, members of the Board of Selectmen and its cable television committee conducted a public hearing on renewal of the Comcast license to operate in Brookline. What they heard was dominated by insiders, trying to extract more money for local programming efforts, now called Brookline Interactive, and for subsidies to low-income residents. Attendance was about 15 people.

Technology dreams: Boosters for Brookline Interactive seemed divided into two camps. One was looking mainly for better distribution of content, the other looking mainly for better technology to deliver it. Karen Katz of Pleasant St., president of Brookline Interactive, complained about “no delivery” of her organization’s content by Comcast, recently rebranded as Xfinity. Comcast does not display a schedule of Brookline Interactive programs. She wanted more Comcast money to support local programming efforts.

Albert Davis of James St., who described himself as a media producer, does productions at Brookline Interactive. He complained that Comcast “does not support an everyday medium”–meaning high-definition, wide-screen television–calling that “a huge mistake.” He wanted Comcast to “get involved” with Brookline Interactive, a “partnering opportunity.”

Kathy Bisbee of Gorham Ave., recently hired as Brookline Interactive director, mentioned “over the top” fees as a way to boost her organization’s take of Comcast revenue. Although she did not explain, that would be techno-speak for fee-based, Internet-distributed services such as Showtime, currently about $11 a month.

Limited incomes: At an opposite pole from Ms. Bisbee and Brookline Interactive technophiles was David Trietsch of Linden Pl., board chair of the Brookline Housing Authority. He complained that few public housing residents could afford any type of Internet service–and probably not $11 a month “over the top.” Recently, he said, RCN has offered “favorable terms” for service to the new Dummer St. project.

Frank Caro of Beacon St., a member of the cable television committee and a Precinct 10 town meeting member, spoke for retired residents. He said he found almost no “senior discounts” for telecommunication services in Brookline. He was “deeply disappointed” that Comcast offered only $2 a month off, only on “basic” service.

The sole Brookline residents to complain about the quality of Comcast services were Cathy Corman of Pleasant St. and her husband Mark Penzel. Their house had apparently been built after the neighborhood was wired and has no cable service. Comcast initially wanted over $20,000 to install a cable but then offered to do that for $2,300 if it could dig a trench beside a tree in a neighbor’s lawn.

High costs: What none of the earnest speakers mentioned but would surely be uppermost for a network operator are high costs of new technology. At an average cost per person estimated by Goldman Sachs, Comcast would need to invest around $30 million to replace its Brookline network. That looks unlikely for a business with annual revenue potential around $10 million: possibly a 10-year payback or worse.

Comcast is stuck with early 1980s cable technology: good for its day but well into old age. It was built for 1953 NTSC broadcast television, about 6 MHz per channel. HDTV in 1080p24 format–the newer “wide screen” broadcast standard since 1998–needs about three times the bandwidth, despite digital techniques. However, it can be fit into 6 MHz channels through digital compression, at loss of optical and temporal definition.

With its dated cable infrastructure, Comcast cannot achieve the level of services fiber-optic systems can provide, such as those installed by RCN and promised–some day–by FIOS technology from Verizon. However, by replacing its complex of signal-transmission electronics and requiring subscribers to install new set-top boxes and modems, Comcast could augment services.

Providing a degraded, 720i24 format of HDTV, while maintaining its repertoire of channels and continuing to use its 1980-era cables above and below the streets could be realistic. Even such a limited project might cost several million dollars to retrofit Comcast’s infrastructure in Brookline. The company would still retain a trouble-prone network of aging cables that has been irritating customers for years.

Silent voices: At the Wednesday hearing, no one spoke up for ordinary customers, surely the vast majority of those concerned about Comcast services in Brookline. The Board of Selectmen did not make any more than minimal, legally required efforts to publicize the hearing. Had they done so, the sixth-floor meeting room might have overflowed.

– Beacon staff, Brookline, MA, September 17, 2015


Mark Biegert, High-definition television bandwidth, Math Encounters (Maple Grove, MN), 2012

Karl Bode, Google fiber build estimate: $140 billion, DSL Reports (New York, NY), 2012

Heather Bellini, et al., Clash of the titans, Goldman Sachs Group, December 7, 2012

Craig Bolon, Broadband telecommunications: Brookline-based services, Brookline Beacon, August 22, 2015

Housing Authority: renovations, programs and project development, Brookline Beacon, August 11, 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

Town boards: special tokes for “special” folks

Members of town boards, commissions, committees and councils may become “special municipal employees” when they are not performing paid duties as regular municipal employees. Such a classification is not automatic in most cases but must be established by a vote of a board of selectmen in a Massachusetts town. Such a vote will apply to all who hold a specified type of position and not to particular individuals.

The “special” people: A “special” designation allows lawyers on a regulatory board to hear and decide cases that are presented by other lawyers in the firm where they work, as long as they did not participate in those particular cases. The “special” people can work and be paid in arrangements for town business as long as their duties for town boards or agencies do not involve the particular arrangements. Those remain dubious practices–more understandable in a small rural town with few lawyers, professionals and businesses than in an large urban town with many of each.

Members of a board of selectmen in a large town are not eligible for “special” designation, whether or not they are paid for serving. Others who receive pay for municipal work are generally not eligible unless they perform 800 or fewer hours of paid municipal work a year.

The Brookline Board of Selectmen is known to have awarded the “special” designation to members of the Zoning Board of Appeals and the Housing Advisory Board. Participation in various matters that could be viewed as conflicts of interest suggest that Planning Board, Transportation Board and Building Commission members might also enjoy “special” status.

A list of organizations with “special” status is supposed to be “on file” in the town clerk’s office. During former years that some have come to regard as flirting with corruption, members of many town boards, commissions, committees and councils are said to have been designated as “special.” However, no list of Brookline’s “special” designations could be found on the municipal Web site.

Training on the laws: At this year’s fall town meeting, scheduled for November 17, Article 8 seeks to require training about laws on conflicts of interest for town meeting members. Some will have already received training because they are also members of town boards, commissions, committees and councils or because they volunteered for it.

Section 3.20.1 of Brookline’s general bylaws–enacted under Article 18 at the May 23, 2006, annual town meeting–applies to members of town boards, commissions, committees and councils. It requires attending training sessions about laws on conflicts of interest and open meeting requirements, organized by the Office of Town Counsel in Brookline.

Article 8 at this fall’s town meeting would allow watching an online lecture about laws on conflicts of interest and requires no training on open meeting requirements. Practical experience has shown that training sessions organized by the Office of Town Counsel proved more effective than lectures, because of questions and answers reflecting specific, local situations.

A list of members of town boards, commissions, committees and councils who have received required training is supposed to be “on file” in the town clerk’s office. However, no such list could be found on the municipal Web site.

– Craig Bolon, Brookline, MA, September 10, 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

Special town employees, in Minutes, Brookline, MA, Board of Selectmen, June 2, 2009, see pp. 6-7

Special municipal employees, Massachusetts State Ethics Commission, 1992

General bylaws, Town of Brookline, MA, November 18, 2014 (3 MB)

Special municipal employee, defined in Massachusetts General Laws, Chapter 268A, Section 1, paragraph (n)

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

Craig Bolon, Override Study Committee: Open Meeting Law problems, Brookline Beacon, August 7, 2014

Land Court: Dueling boards, Selectmen v. Zoning Appeals

At the Massachusetts Land Court, the Brookline Board of Selectmen faced a motion to remove Town Counsel Joslin Murphy and members of her staff as their representatives in a lawsuit they had filed against members of Brookline Zoning Board of Appeals. It’s a strange case, essentially one town board suing another.

After hearing arguments starting at 10:30 am Thursday, September 3, Judge Gordon Piper indicated he would allow the motion unless the Town of Brookline provides its zoning appeals board legal representation in the case before the end of September.

Hancock Village controversy: Chestnut Hill Realty of West Roxbury, through subsidiaries, originally proposed building 466 new apartments on parts of Hancock Village in south Brookline. After false starts, they reduced the scope of the project and proposed using powers under Chapter 40B of the General Laws, Sections 20-23, to override Brookline zoning in return for building partly subsidized housing.

On February 4, 2015, after more than a year of hearings, Brookline’s zoning appeals board voted unanimously to grant a so-called “comprehensive permit” to build 161 apartments plus 292 parking spaces. There would be a high-rise structure over a rock outcrop, previously considered unbuildable, plus low-rise structures on unbuilt land that had been reserved as “buffers” following 1940s agreements with the Town of Brookline.

In a closed session at a meeting March 3, as confirmed by participants, the Brookline Board of Selectmen voted to sue the Brookline Zoning Board of Appeals. A complaint was filed in the Massachusetts Land Court on March 11, seeking to annul and revoke the permit: Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others. That became Land Court case 2015-MISC-000072.

The Town of Brookline stands directly affected by the permit partly because it owns two abutting properties: Baker School land and D. Blakeley Hoar conservation land. Other plaintiffs in the case are residents who own abutting private property. Main defendants are the zoning appeals board members who voted to grant the permit: Jesse Geller, Christopher Hussey and Jonathan Book–named in their roles as town officials. Other defendants are the Chestnut Hill Realty subsidiary awarded the permit: Residences of South Brookline, LLC.

Legal representation: The Board of Selectmen opposed the Hancock Village project throughout 2014 and, so far, 2015. However, that board assisted the zoning appeals board with services of outside counsel, who attended hearing sessions and offered advice. The Board of Selectmen approved several requests to the Advisory Committee for reserve fund transfers to pay for outside counsel. Funds went through both the Legal Services department and the Planning and Community Development department.

According to online town records, during fiscal 2014 and fiscal 2015 Brookline paid two firms who advised the zoning appeals board a total of $295,121 for services: Krokidas and Bluestein, of Boston, and Edith M. Netter and Associates, of Waltham. The lawyers who attended the appeals board sessions were Samuel Nagler and Kathryn Murphy from the Boston firm and Edith Netter from the Waltham firm. All testimony and advice was in public sessions recorded by Brookline Interactive Group.

At Land Court this week, Judge Piper appeared familiar with the background of the Brookline case. Before arguments, he expressed concern that no legal appearances had been filed for the Brookline Zoning Board of Appeals members and that no counsel attended the hearing to represent their interests.

According to communications, Judge Piper said, legal appearances were supposed to have been filed in June. Brookline Town Counsel Joslin Murphy responded that there was “no funding in place.” Judge Piper asked, “Was it requested?” Ms. Murphy said, “Selectmen were asked for support…they did not authorize any.”

Kevin O’Flaherty, representing Chestnut Hill Realty interests, maintained that Ms. Murphy and her staff had “unwaivable conflict,” responsible to represent two boards with opposing outlooks. The judge asked where there had been practical problems. Mr. O’Flaherty contended there might be problems such as obtaining documents, noting there was no counsel to contact for the zoning appeals board members.

Ms. Murphy countered that “the town has responded to discovery requests.” She noted that all sessions and records of the zoning appeals board were public and that Brookline’s Department of Planning and Community Development had provided staff support to retrieve records. She said that “the chairman of the ZBA [Zoning Board of Appeals] did correspond with the court.”

Zoning agreement: Jason Talerman, representing other plaintiffs in the case, opposed removing Ms. Murphy and her staff from the Land Court case and noted a related case now pending in the Court of Appeals. A key issue in the Appeals Court case has been a 1946 zoning agreement between the Town of Brookline and the John Hancock Life Insurance Company, specifying enduring restrictions on Hancock Village development.

Mr. Talerman had previously raised the issue in a memorandum sent on December 31, 2014, to the Brookline Zoning Board of Appeals. As in that memorandum, under the 1946 agreement, he told Judge Piper, “The project as proposed would be impossible.” In its comprehensive permit, however, the zoning appeals board took no notice of the 1946 agreement.

Threat: After more than an hour of argument, Judge Piper seemed unmoved by the particulars and returned to his initial concern over lack of legal representation for Brookline’s zoning appeals board members, saying he found it “deeply troubling.” Board members, he said, were left “entirely speechless, unable to be heard.” Since the members are being sued in their official capacities, they are apparently ineligible to present arguments pro se as plaintiff or defendant individuals might.

According to Judge Piper, “The developer,” apparently meaning the subsidiary of Chestnut Hill Realty, “is limited in its ability to gain access to the minds of the [appeals] board…I will not rule at the moment, [but]…if there is continued inability to hear from the board…I will be strongly inclined to allow the motion.” If that threat were carried out, however, it would instead leave both the main plaintiff and the main defendants in the case unrepresented.

As acknowledged to the Beacon by Ms. Murphy, Brookline has several sources of funds, including her office’s budget for outside legal services, the contingency fund and “in the worst case” a request to the Advisory Committee for a transfer from the reserve fund. Ms. Murphy did not succeed with her most recent reserve fund request.

Mysteries: Partly owing to statements in open court from Ms. Murphy, mysteries remain. There is no docket entry in the case for a communication from Jesse Geller, who chairs the zoning appeals board. If he is ineligible to represent himself in the case yet did “communicate with the court,” then how, when and what did he communicate?

Records should say whom the Board of Selectmen asked for advice about a request to provide funds for outside counsel to represent members of the zoning appeals board in the Land Court case, also what advice was offered and what members of the Board of Selectmen had to say. How and why did members of the Board of Selectmen “not authorize any” funds to represent members of another town board with whom they disagreed on a key issue?

– Beacon staff, Brookline, MA, September 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″)

Complaint, Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others, Massachusetts Land Court, March 11, 2015

Town of Brookline, MA, FY2015 accounts, Vendor payments for KROKIDAS and BLUESTEIN LLP, August, 2015

Town of Brookline, MA, FY2015 accounts, Vendor payments for EDITH M NETTER and ASSOCIATES PC, August, 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)

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

Jason Talerman to Brookline Zoning Board of Appeals, Re: Chestnut Hill Realty, Chapter 40B application, Brookline Department of Planning and Community Development, December 31, 2014

Irene Scharf and Jason Talerman, Testimony at Brookline Zoning Board of Appeals, February 24, 2014, see pp. 13 and 45-48

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

Board of Selectmen: new members and leadership, Brookline Beacon, May 13, 2015

Board of Selectmen: Hancock Village, budget reviews, Brookline Beacon, March 4, 2015

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

Board of Selectmen: Hancock Village, financial plan, Brookline Beacon, February 21, 2015

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

Zoning Board of Appeals: Hancock Village 40B, getting to Yes, Brookline Beacon, November 4, 2014

Board of Selectmen: opposing Hancock Village 40B, defending METCO, Brookline Beacon, September 17, 2014

Zoning Board of Appeals: architecture for Hancock Village Chapter 40B, Brookline Beacon, September 9, 2014

Judith Leichtner, Comments to Brookline Zoning Board of Appeals on proposed chapter 40B development at Hancock Village, September 8, 2014

Zoning Board of Appeals: Chapter 40B project at Hancock Village, Brookline Beacon, June 20, 2014

Brock Parker, Developer gets green light to pursue a 40B project in Brookline, Boston Globe, October 24, 2013

Board of Selectmen: two boards, changing colors

A regular meeting of the Board of Selectmen on Tuesday, July 14, started at 6:45 pm in the sixth-floor meeting room at Town Hall. The board has gone into semi-hibernation for the summer. However, the extra rest and vacations did not seem to help with what is striking some as crabby behavior, at least when dealing in public affairs. Like a chameleon, the board can seem to change colors when dealing with licenses, at least as seen by the general public, if not always as seen by the license applicants.

Discord: Nine Advisory Committee members gathered to witness a protest: vice chair Carla Benka, Janice S. Kahn, chair of the Public Safety subcommittee, Stanley Spiegel, chair of the Planning and Regulation subcommittee, Leonard Weiss, chair of the Administration and Finance subcommittee, Clifford M. Brown, Janet Gelbart, Fred Levitan, Neil R. Gordon and Steve Kanes.

Mr. Weiss spoke about lack of communication shortly before the annual town meeting this May. Not more than a day or two earlier, Andrew Pappastergion, the public works commissioner, had concluded negotiations starting in April for a new recycling collection and processing contract. He had settled a price about $200,000 per year above the budget the Advisory Committee published, which it was about to propose at the town meeting.

Since 1910, the Advisory Committee and its predecessor, the Warrant Committee, appointed by the moderator of town meeting, have served as Brookline’s finance committee. Under Section 16 of Chapter 39 of Massachusetts General Laws, the committee proposes budgets to annual town meetings. In between, it regulates use of the reserve fund. In Brookline, the same committee and its subcommittees also review, hold hearings on and make recommendations about all warrant articles for all town meetings.

Although Mel Kleckner, the town administrator, knew that the budget would go out of balance, he withheld information from the Advisory Committee and might have withheld it from the Board of Selectmen. As a result, the town meeting passed a budget with a major, structural deficit that likely could have been prevented. Mr. Kleckner admitted as much in a later exchange with Sean Lynn-Jones, chair of the Advisory Committee.

According to Mr. Weiss of the committee, that was a breach of trust. The committee, he said, “places great reliance on management representations…Some folks thought withholding information was a good idea…This experience has severely damaged my trust and respect in management.” Fallout included a hotly controversial reserve fund transfer, narrowly approved July 7, when another reserve fund request was denied.

Two members of the Board of Selectmen rushed to defend Mr. Kleckner, and none questioned him, even though all five current board members are Advisory graduates. Nancy Daly, the only board member not serving a first term in office, claimed, “This was not an attempt to hide information…A suggestion that we were trying to sweep something under the rug…was quite offensive.” She did not explain what that referred to.

Neil Wishinsky, chair of the board, made a long statement, concluding, “We try to act in good faith…use our best judgment…There was no bad faith.” In the message exchange, committee chair Lynn-Jones had asked Mr. Kleckner, “…did you consider letting the Advisory Committee know [in April]…budget recommendations might have to be revised?” Mr. Kleckner had responded, “Not at that time….”

Public affairs: Deborah Rivers of the Brookline GreenSpace Alliance described to the board proposed changes in the town’s “climate action plan.” However, from her descriptions alone, it was not clear what differed from the previous plan of December, 2012. An interactive form of the 2012 plan has vanished from the municipal Web site, but the conventional document for that plan remains available.

Comparing proposed actions in Appendix F from the 2012 plan with a new Appendix A of proposed changes showed a reduction in actions being considered. Gone, for example, was a 2012 proposal to “develop a program for replacement of…refrigerators, dishwashers, clothes washers” and a dozen other types of equipment. There are still no comparisons of costs with benefits, and there are no estimates for amounts of efforts involved.

Linda Hamlin and Steve Heikin from the Planning Board and Roger Blood from the Housing Advisory Board asked for authorization to file an application for a $15,000 state grant. Grant applications are routinely filed by town staff without authorization, and approval is sought only to accept grants. It was not clear why any such authorization was needed and why those members of other town boards had become involved.

Their presentation was mostly a replay from a recent meeting of the Housing Advisory Board. Without any explanation, however, the ante had gone up. Instead of less than $35,000–an amount intended to avoid public bidding requirements under state law–Ms. Hamlin, Mr. Heikin and Mr. Blood were now talking about a total of $50,000 or more–not saying why more money was needed or where a missing $35,000 or more might come from.

Although they used oblique language, the main strategy from Ms. Hamlin, Mr. Heikin and Mr. Blood was clearly to target Brookline neighborhoods for major development and to invite Chapter 40B developers whom they might prefer into Brookline to take over properties. Mr. Wishinsky, the board’s chair, seemed to catch on partly, saying such an approach would be “difficult”–involving “identifying specific sites” and “public processs.” However, he seemed to think the strategy involved zoning, when the intent of Chapter 40B is to override zoning, along with all other local permits.

Other board members were circumspect. Nancy Daly spoke about “a huge need in town for affordable senior housing.” Alison Steinfeld, the planning director, claimed Brookline could not focus on senior housing, apparently unaware such plans are authorized under federal law and had been recently announced for development at the Kehillath Israel site on Harvard St. With board member Bernard Greene not participating, the other four voted to approve filing a grant application.

Personnel, contracts and finances: Melissa Goff, the deputy town administrator, got approval to accept a $0.24 million state energy resources grant, intended to offset costs of energy-efficient lighting. Brookline is in the second year of street lighting improvements. In response to a question, Peter Ditto, the engineering director, said changes to street lighting are about 40 percent complete. The new grant, however, is to be used for other public facilities: the high school, the Tappan St. gym, the swimming pool and several parks.

Mr. Ditto got approval to accept $0.144 million in state funds for repairing winter storm damage to streets. He said all the work had been completed by June 30. At his request, the board also approved a $0.024 million contract with Superior Sealcoating of Andover for summer street maintenance.

Lisa Paradis, the recreation director, sought hiring approval for two lead teacher positions at the Soule Recreation Center. As board member Nancy Daly observed, there has been high turnover among the seven teaching jobs at the center. From participants, there have been some notes of morale issues. Responding to a question from board member Nancy Heller, Ms. Paradis said the average length of employment was 3 to 4 years. The board approved, with Mr. Wishinsky asking Ms. Paradis to “seek a diverse pool of candidates.”

Licenses and permits: After the board turned its attention to license applications, Mel Kleckner, the town administrator, left the hall. First up was Richard Nasr of Westwood, who operates the Ontrack Cafe there, seeking a food vendor license at 1633 Beacon St, to be called Square Deli. Such a license for prepared foods does not include restaurant seating or service.

Ms. Daly questioned the application for 2 am closing, calling that “pretty strange” for a sandwich and salad shop. However, as the application noted, the previous business at the site, a 7/11 market, had operated with 2 am closing hours. The board approved the new license with 2 am closing hours.

Adam Barnosky, a member of the law firm headed by Robert L. “Bobby” Allen, Jr., represented Peet’s, seeking approval for three outside tables and service for nine seats at 1154 Boylston St., formerly Starbuck’s. The board has become quite liberal about outside seating, even allowing it on some sidewalks. At this site, outdoor seating was planned on private space in a narrow strip adjacent to a sidewalk. The board approved, subject to another review of seating area dimensions by the Building Department.

A prime candidate for board attention this evening was a proposal for Waxy’s, a regional chain of restaurants with an Irish theme, to open at 1032 Beacon St. That had most recently been the site of a sometimes troubled Mission Cantina. Waxy’s submitted an ambitious proposal, asking for 122 indoor seats, 48 outdoor seats, up to 60 employees, full liquor service including a bar, 2 am closing hours all 7 days a week and recorded entertainment. It would become one of Brookline’s largest restaurants.

The chain was represented by Frank Spillane, a Foxborough lawyer. There turned out to be disconnects. The people named as managers on papers distributed for the license hearing were not actually expected to be the managers once the restaurant was open. The chain was still looking for someone. A main spokesperson at the hearing was a manager recently hired at another location who mumbled his name, although clearly it was not one of those names appearing on the license papers.

Members of the board had read a Brookline Police Department report calling attention to multiple problems at one of the chain’s current locations, in Foxborough. There had been a sale to a minor, drunken behavior by patrons and repeated license suspensions–at least one while that location was managed by one of the people named on license papers as a Brookline manager.

Lt. Hayes of the Brookline Police Department, who had investigated, recommended 1 am closing hours, security cameras and other license restrictions. Board members Nancy Daly and Ben Franco stated they would vote against the application as it stood. With Bernard Greene not participating, the application could not get a majority vote of approval. Mr. Wishinsky, the chair, called for public comment.

Steve Kanes of Carlton St., an Advisory Committee member, described widespread neighborhood concerns. They included noise, litter and smoking. A license, he said, should not allow outdoor entertainment. He mentioned late-night noise after closing, around the outdoor trash receptacle, asking for restrictions.

Joel Feingold of Beacon St., a next-door neighbor, said the former Mission Cantina had caused much more trouble for nearby residents than other business at the site: “a rude awakening” and “a difficult neighbor.” They ran until 2 am outdoors, he said, although licensed only until 11 pm. Outdoor litter and late-night noise had been chronic problems. He asked for no deliveries before 8 am if a license were granted.

James Franco of Amory St., a Precinct 1 town meeting member, asked for no outdoor service after 10 pm if a license were granted, intending that use of outdoor seating should end before 11 pm. Neil Gordon of Ivy St., also a Precinct 1 town meeting member, had similar concerns. Other neighbors recounted past problems and joined in asking for restrictions on any new license. The board was going nowhere with this application. Mr. Wishinsky announced the hearing would be continued to a future date.

Chickens: Brookline is not always so difficult for applicants. Illustrating the point, two evenings later the Zoning Board of Appeals considered an application at a location not far away, on Amory Street, asking for a permit to install a small chicken coop. There may not have been a similar application north of Route 9 during at least the past half century.

The applicants were the Gurock family, who opened the popular Magic Beans children’s store on Harvard St. in 2003, at the former site of Imaginarium. They now have five other locations in Massachusetts and Connecticut. The parents are seeking educational experiences for their children, said Sheri Gurock, describing measures the family plans to prevent odors and neighborhood disturbances (no roosters). Neighbors sent in letters of support, and there was no opposition. The board approved.

Located in the Cottage Farm historic district, the proposal also needed Preservation approval, which it had previously received. The district name was an 1850s invention of Amos Adams Lawrence (1814-1886), sponsor of the unusual development. It did not reflect any known historic farm that might also have raised chickens.

– Beacon staff, Brookline, MA, July 18, 2015


Memorandum from Melvin A. Kleckner, Town Administrator, to Sean Lynn-Jones, Chair, Advisory Committee, Town of Brookline, MA, July 13, 2015

Climate action plan, Town of Brookline, MA, December, 2012

Revisions to climate action plan, Town of Brookline, MA, July, 2015

Planning assistance toward housing (PATH), Massachusetts Department of Housing and Community Development, 2015

Kehillath Israel: renovation and Chapter 40B development, Brookline Beacon, July 9, 2015

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

Housing Advisory Board: “smart growth,” $35,000 consultant, Brookline Beacon, June 25, 2015

Public Works: question time and complaints, Brookline Beacon, May 15, 2014

Kehillath Israel: renovation and Chapter 40B development

On Wednesday evening, July 8, representatives of the Kehillath Israel congregation announced at a public meeting held at the site that they were starting real estate development, in two parts. Part 1 renovates the synagogue building, dedicated in 1925, and adds about 10,000 square feet of support space on the north side. Part 2 builds an undisclosed amount of partly subsidized new housing, replacing the community center opened in 1948 and using Chapter 40B of the General Laws to override Brookline zoning.

Rabbi William Hamilton opened the meeting, saying the congregation was planning for a next century. The membership has shrunk from a peak of around 1,200 families in the 1950s to around 400 now. He introduced Joseph Geller, a landscape architect and developer, member of the congregation, Precinct 9 town meeting member and former member of the Board of Selectmen, who led most of the discussions.

Mr. Geller introduced Robert L. “Bobby” Allen, Jr., a local real estate lawyer, Precinct 16 town meeting member and former member of the Board of Selectmen with whom Mr. Geller served. Mr. Allen is representing the congregation’s legal interests in development plans. Asked about potential disruptions from pursuing development while nearby Devotion School is being rebuilt, Mr. Allen merely said it could be “a problem.”

According to Alison Steinfeld, Brookline’s director of community planning and development, about a year ago Mr. Allen met with members of the department for an initial discussion. Ms. Steinfeld said she did not know the amounts of housing Kehillath Israel might have in mind. Such a discussion, as well as such a meeting as happened July 8, are among steps in Brookline’s design review process for any development on Harvard St.

Location, location: Stories about a potential large housing development have circulated around nearby neighborhoods for many months, with a wide range of speculation about locations, amounts, sizes and heights. The presentation on July 8 settled only location: space now occupied by the community center, which representatives of the congregation called the “Epstein building.”

The current community center’s building outline is about 120 by 65 feet, plus a depth of about 30 feet for front entry and steps. If there were to be no further incursions past those perimeters, that could provide a gross area near 10,000 square feet per floor. A modern 4-story building, similar in overall height to the community center, might house around 40 medium-size apartments.

North Brookline neighborhoods have had two previous experiences with 40B developments. A private developer near the synagogue substantially scaled back initial plans and built a double wood-frame quadruplex at 107A through 113B Centre St. in the late 1990s, replacing a large house. Occupancy of these condominium units has proven fairly transient, with turnovers every several years.

After about seven years of disputes and negotiations, the development arm of the Roman Catholic Archdiocese of Boston scaled back initial plans for the former St. Aidan’s Church by about 60 percent and put up mostly modern, fireproof new construction around 2008. However, adaptive reuse, unprecedented for the Archdiocese, placed several apartments inside the historic church structure and preserved the large courtyard at the corner of Pleasant and Freeman Sts. and its huge copper beech tree.

Senior housing: Mr. Geller said Kehillath Israel was planning “senior housing”–favorable for a community in which escalating costs of public schools have been driving up budgets, leading to tax overrides passed this year and in 2008. While age-restricted housing is clearly a form of discrimination, under some conditions it is allowed by laws and regulations.

Massachusetts has had antidiscrimination housing laws for many years. They were partly subsumed by the federal Fair Housing Act, Title 8 of the Civil Rights Act of 1968 (PL 90-284). The original version of the law prohibited discrimination based on race, color, religion, sex or national origin in the sale and rental of dwellings. Other protected categories have been added.

Section 4 of Massachusetts General Laws Chapter 151B, “Unlawful Discrimination,” prohibits discrimination because of race, color, religious creed, national origin, sex, age, ancestry, veteran status, sexual orientation, marital status, children, handicap and receipt of public assistance or housing subsidy in the selling, renting or leasing of housing accommodations, commercial space or land intended for those uses. Fines are up to $50,000 per violation. Massachusetts regulations in 804 CMR 02 implement the law.

One of the few general exceptions in housing discrimination laws has allowed, after 1988, qualified “senior housing” developments, as modified under the federal Housing for Older Persons Act of 1995 (PL 104–76). Such a qualification requires 80 percent of dwellings to be occupied by at least one person who is 55 years of age or older. The federal qualification can be lost if that operating status is not maintained.

The Kehillath Israel congregation would almost surely be able to qualify a development as “senior housing.” Asked how the congregation might guarantee that “senior housing” will continue to qualify and operate that way, Mr. Geller said he expected there would be a continuing agreement with the Town of Brookline. By contrast, the management at Hancock Village in south Brookline has been moving away from “senior housing,” actively marketing to mostly foreign families with children. They are not planning “senior housing” as a part of their current Chapter 40B housing project in Brookline.

When a religious organization sponsors housing, some assume members and affiliates of the organization will become occupants or may be favored. Occupants of new housing at the Kehillath Israel site need not be Jewish or otherwise share some background that might tend to exclude people protected against discrimination. During controversy over redevelopment of the former St. Aidan’s Church, at least some former parishioners seemed convinced they would be favored to occupy new apartments there. Since that did not agree with housing laws and regulations, it did not happen.

– Beacon staff, Brookline, MA, July 9, 2015


Fair housing regulation, Massachusetts Office of Consumer Affairs and Business Regulation, 2015

Town elections: tax override for schools passes, Brookline Beacon, May 5, 2015

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