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For further
information call:
Kimberly Koopman
978-779-0104
Committee to Elect Tom
Miller
P.O. Box 552
Bolton, MA 01740
E-mail: TomM4S@yahoo.com
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Statement
from the Miller Campaign about the Sunset Ridge Decision
A
Decision with Teeth …or a Paper Tiger?
The
Bolton Zoning Board of Appeals (ZBA) has rendered its Decision to approve
the Comprehensive Permit for the Sunset Ridge condos. It gives the appearance
of ensnaring the developers in a robust chain of controls and conditions
on the project. But will it do what it promises? Upon closer examination
at least one of those tight controls looks unenforceable. And yet others
seem to have been forgotten.
Can
developers use well protection rights on Town Land?
First,
let’s look at the water supply for this project. The development Plan on
record shows the well a scant 50 feet away from Town Conservation land.
The State normally requires a 400+ foot zone of restriction around this
well. This zone is shown on the Plan. About half of it incurs on Town owned
land. Both the ZBA and Conservation Commission were notified in writing
by a Town Counsel memo that, to allow such a restriction on Town land,
a Town Meeting would be required to grant the developers that right. Yet,
the ZBA’s Decision included no such requirement about what the developers
had to do before they could locate their well. They left the well location
issue solely in the hands of the State DEP. But, the Town counsel memo
also cautioned that the State DEP has the authority to alter the size of
this restriction. If (because the butting land is conservation, anyway)
the restriction is reduced, that could allow this well to take advantage
of next-door Town Conservation land for water supply – and without a Town
Meeting vote.
The
ZBA made the developers make many other changes to the plan. But not the
well location. Their Decision also specifically prohibited other things
on the plan which they deemed were improper like the location of the storm
water retention basins. They even stated “location of the drinking
water well and related development impacts is within the jurisdictional
authority of the Board.” But they were silent on the well location. No
condition was required in their decision. Bottom Line? The ZBA had an opportunity
to exert local control over the well location, and they punted it to the
State. Who was looking out for Bolton?
Use
of Trail Easement for Septic System Ignored?
Town
Meeting voted to require a second legal opinion to determine what rights
are held by both the Town and the developer on a trail easement that traverses
the property. This information is critical because the Town owned easement
will be overlain with the project’s septic system. The ZBA Decision
went ahead and allows use of this easement without the second opinion,
thereby ignoring the voice of Town Meeting. It is totally silent
on the impending second opinion. What happens if the second opinion disallows
any of the approved uses of the Town Easement? In addition, the Decision
provides instances where an “alternative easement”, an "interrupted easement
“ and a “new easement” would be permitted. Nowhere does it condition these
allowances on the forthcoming second opinion. Nowhere does it indicate
that, for these allowances, a Town Meeting vote would be required by State
law, and by the 1981 contract with the State (that funded half the
purchase price of the land and easements).
Who
is at Fault?
No
fault can be directed toward Town Counsel. In a Dec 11, 2001 memo they
recited that (1) the zone of protection for the proposed well would lie
upon Town Land; (2) only a vote of the State Legislature or Town
Meeting Vote could allow such a right; and (3) that a loophole in State
Policy about the size of the zone could let the developer place their well
virtually anywhere they wanted. They did their job. In addition, the easement
second opinion was discussed in Law Committee meetings and a request was
to be made to the ZBA to delay the final Decision subject to the second
opinion.
So,
what advantage could there possibly be to the Town for the ZBA moving forward
without the second opinion requested by Town Meeting? Was there a political
motive in the timing of this Decision?
A
Big Show of Capping Developer Profits
The
ZBA Decision attempts to place a limit on the developer’s profit of 12.4%
on this project. In doing so, they are in uncharted waters. This exceeds
communication from the Department of Housing and Community Development,
which proscribes a maximum limit of 20% profits. And it goes against
the advice of Town Counsel. It seems reasonable to conclude that this profit
cap is unlikely to stand up on appeal. What looks like an aggressive attempt
to be tough on the developer may well be in reality nothing more than public
relations. One other Town, Rehoboth, has attempted to take this route
and that project has been mired in expensive appeal and remand procedures
for over three years.
Interestingly,
the impetus for both these profit limits came from the same source – the
consultant hired by our Town to assist in the Sunset Ridge deliberations.
This leads some to believe that the 12% limit is a brain child of this
consultant to make a name for themselves. Or it may be their strategy to
justify their large fees. For this consultant has done little else to impact
the project. The reduction in size from 32 to 28 units came primarily from
information about State legal limits on nitrogen loading provided in a letter by a
private citizen to the ZBA very early in the process: July 12, 2001. At any rate, the consultant's fees have ballooned and are
now a bone of contention between the Town and the developer.
Have
we followed an expensive and ill-advised siren song in this case? In leading
the charge at the State level against developers’ profits, little Bolton
is playing way out of its league against powerful intrenched builder and
real estate lobbies. This strategy only plays into the hands of those who
allege we are out to exclude affordable housing any way we can. Instead
of penalizing affordable housing re-actively, we should be incenting the
kind of affordable housing we want pro-actively. See the Miller campaign’s
thoughts on how to do that.
Unanswered
questions
Why
was approval of this project pushed through on this timetable? Why
were legal opinions ignored? Why the dubious profit cap included
in the Decision and yet enforceable conditions about key water and sewer
rights left out? One can argue the reverse should have actually happened.
Profits are mere money. Natural resource rights on Town-owned land and
easements are priceless and irreplaceable. These issues raise serious questions
about what really occurred in the review of this project. They should
not be ignored.
One
final thought. Our campaign finds it interesting that the Chair of the
ZBA and one of the primary authors of the Decision now decides to run for
the Office of Selectman in its immediate wake. One must wonder whether
this Decision was formulated on the facts and merits of the Sunset Ridge
project – or was it timed for maximum impact as the opening salvo in the
Chairman’s political campaign.
Perhaps
that’s just coincidence.
The
opinions expressed herein are those of the Committee to
Elect
Tom Miller and are intended to encourage debate!
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