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

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.