Above: Barn Hollow residents can keep on mowing town land against their backyards, for the forseeable future. (Image cropped from photo posted to Flickr by heipei)
Last night, the Board of Selectmen again addressed Open Space issues at Barn Hollow. The board put to rest allegations made at their last meeting of selectmen acting “behind closed doors.”
Earlier this month, residents questioned the origins of a letter issued by the Building Inspector to Barn Hollow residents. It indicated selectmen may grant a “Non-Revocable License to utilize this portion of land”.
Town counsel, Aldo Cipriano, explained that the letter followed through on a decision discussed in open meetings prior to the Town Meeting about how to proceed if the parcel was accepted.
As for the treatment of open space as backyards in Barn Hollow, the issue was as contentious as ever. As usual, no one seemed completely satisfied with the outcome. That included selectmen.
Selectman Paul Cimino told disgruntled residents that voters made a mistake when they accepted the parcel. He said he was against it:
because [not accepting it] represented the best chance to have a comprehensive solution to this problem. And I said on the floor at Town Meeting that if we accept this land, this is far from over. And here we are.
Selectman Bonnie Phaneuf counseled residents:
At sometime we have to pull back. And I think this is the right time. This is a very poor designed subdivision. I think we could have come up with something better that would benefit all of us. There is no benefit to this.
After hearing advice from Cipriano, the board opted not to issue a license to the homeowners. Instead, they will issue a letter defining current rights to mow town owned public space.
Cipriano, told the board that he didn’t believe a court would support stopping the “de minimus” encroachments of mowing the lawn. And he said pursuing that in court would be costly.
Several residents argued that the board was “opening a can of worms” for other encroachments to open space. They also argued that the granted rights were in opposition to the will of a 2/3 Town Meeting vote to accept the open space parcel.
Resident Whitney Beal argued that the town should issue a letter telling homeowners to cease mowing.
Barn Hollow homeowner, Brendan Leonard, rebutted that at previous public meetings no one had claimed they wanted the land to be overgrown and not mowed. He said the issue was created by the developer, left off the hook, and the town by waiting 10 years to mark the boundaries for open space.
Leonard said that if the right to mow is taken away or would be taken away upon sale, the home values would “drop drastically in value”. If that happened the homeowners would have no recourse but to sue. He and a neighbor pressed for a more permanent solution.
Cipriano stated that the board can’t legally issue “irrevocable” rights to any use of town land.
During the meeting, the board and counsel answered allegations that the letter was issued “behind the backs” of voters. Cipriano explained that it came from public meetings with the BOS and Planning Board before Town Meeting. They discussed alternative options should the town vote to accept the parcel. He said at the time that a license could be granted.
Due to issues with the deed and mortgage, there had been a delay in officially accepting the parcel as town land. Once that was resolved, the letter was issued in August, notifying neighors of the town acceptance and their standing.
Selectman John Rooney also explained his role in the letter. After Town Meeting, when a homeowner complained that he lost a prospective buyer over the open space issue, Rooney inquired about the status of the letter going out.
The board agreed last night that a new letter needs to be issued. There was no vote, as the letter still needs to be drafted and reviewed by counsel.
Letters will be customized for the homeowners with their specific rights. Mowing will only be allowed on the currently mowed sections abutting the backyards. The letter and photos will serve as record to remind that no further encroachments will be allowed. And homeowners will not be allowed to use open space for yard waste or any new plantings or encroachments.
The board will allow rights to transfer to new owners. But, the town has the ability to revoke that right at any time.
Members made it clear they have no interest in revoking unless further encroachments are made. But homeowners were worried about the uncertainty especially with future turnover in board members.
I attended the meeting. There were several important take aways:
1. The Acceptance Advocates Did the Developer A Big Favor – Those that advocated on the floor of Town Meeting that the parcel be accepted let the developer off the hook and put the problem on the Town’s shoulders. It was a terrible mistake to accept this land with this issue hanging over us.
2. There No Need for a License – Once the Parcel was accepted the responsibility to manage it falls to the BOS and their representatives, the TA and Building Inspector. If they say mowing is ok it is ok until they change their mind.
3. No Precedent Is Set – The BOS is elected and is responsible for managing the parcels in the interest of the Town of Southborough. If they believe that it is in the towns interest to permit mowing or cattle grazing on parcel A and not on parcel B that is their call. No special rights are created by their management decisions.
4. Mowing Is Permitted on Open Space – Mr. Kolenda who is an attorney, did an extensive review of our by laws, the practices of other towns, and the State guidelines for open space. In each case he concluded that the active management, for the public good, of some portion of open space is permitted and encouraged. The idea that all open space must be left untouched is not supported in our by laws or encouraged by the state.
5. Everybody is Unhappy – That means that we probably have a deal we can live with.
6. Next Steps – We should take what ever steps we can to blot this sorry and embarrassing episode from our collective memories. Leave the Barn Hollow neighbors in peace and focus on the more important issues that face our community.
Al, could you explain a bit more what you mean by point 3 above? I’m a bit confused by your seeming assertion that the BOS could choose at any moment to raze all town-owned open space, and also that you seem to suggest that the BOS has the right to define uses beyond those allowed by zoning. I don’t believe either is true. But maybe I’m reading into your statement.
Agree with all your other points. Though I think many people voted to accept the open space because they didn’t believe a compromise would ever happen (having watched how many fail?), and wanted to put this issue behind us.
I also wonder about the status of the “Open Space Enforcement Process” previously discussed by the BOS/Planning Board to prevent this from happening again? Or did the Building Inspector get that mandate? I don’t recall. But it was a good idea to explore.
Thanks.
Tim
I think the BOS has a broad mandate to manage the open space in the public interest as they see it. If someone were to donate a skate park or hockey rink I think the BOS could permit those things to be built on open space since recreation is one of the uses of the space.
I do not know the extent to which the Town of Southborough is bound by our zoning by laws. I don’t know if, for example someone donated a new fire station if it could be built on open space. My suspicion is that the town is far less constrained by our Zoning rules than you or I are. Good question for town counsel.
As a practical matter, doing anything substantial with open space will probably take an appropriation of Town Meeting so Town Meeting does get to weigh in.
I agree with you that Town Meeting accepted the land out of frustration.
I believe the building inspector has always had the responsibility for enforcement but I think he has a lot more important things to do than back yard snooping..
Thank you Al.
Mr. Hamilton, With each comment the failure of your election bid becomes more and more painful. You speak without an agenda and stay with the facts.
The town meeting vote was guaranteed once the open space people made us think that if the land was not accepted the town somehow would be the loser in open space. I voted to take it, because I was told that if I voted against it, I did not support open space. The people at Barn Lane were made to look like land grabbers gobbling up open space and if we didn’t act immediately they’d take more. Having since had a chanced to meet some of these people, neighbors to all of us, I know that was not true. I now see that my vote was influence by hysteria and I have no one to blame but myself.
What was the big hurry to vote at town meeting. We had waited over a decade. Negotiations were going on with the developer and the home owners, but once the vote happened, negotiations ended.
I think it was Mrs. Phaneuf who said it best last night. She said something like “this subdivision was a mess from the start.” Who is responsible for that?
Mr. Hamilton’s advice to bury this ugly thing and move forward is long overdue.
I agree with my fellow Resident. It was a pleasure to read Mr. Hamilton’s summary and suggestions.
Why is every little thing always blown out of perspective around here? (ie: school bus parking for as long as I can remember). Oh yeah, new money coming into town wanting to change all the “rules” in their favor. I think the Revocable letter is a great idea. As long as no sheds or fences are built on town property, and the homeowner is willing to pay his hired help to mow it, what’s the downside. Oops, now I see the downside, one homeowner lost a sale of his house because of the letter, ahem, I sure hope he wasn’t trying to hoodwink the prospective buyer into thinking he was getting a bigger back yard than was legally his to sell. Another one threatens to sue. Who are you going to sue and on what possible grounds, (see what I did there)? I hope they take there time and remove any possible loopholes in this letter and, if legal, double staple a copy to every deed on file. Once again, let them mow it, their kids, dogs and cats can now romp in the extended back yard with less of a fear of ticks. Hmm, I might take a drive over there with my dog and romp also, after all, it’s really “my” property also.
I can understand the homeowners’ anger and their threats to sue. I think they should sue the builder who misled them and caused their misery and significant loss of the value of their properties. The letter to homeowners of Barn Hollow will cause more problems to them. The letter has no real estate value. The portion of the open space land was not deeded to each homeowner. Each backyard is now officially consists of the homeowner own lot and part of the Town land. Any resident can go there and camp in the mowed Town land without any problem. Any prospective buyer will not like to pay over a million dollars for a house with a backyard not totally his, and receive an updated letter to confirm his encroachment on Town properties which he can only mow it for now.
If I understand the issue correctly, the homeowners have no claim against the builder since TM accepted the open space per the post by Al Hamilton above. Their claim would have to be against the city for 1. not enforcing the encroachment issue on the builder prior to him selling the properties, and 2. not enforcing the city’s code requiring lot markers be installed. I believe the lot markers were required to be installed prior to the fire hydrants, but they were only installed sometime last year. The other issue is selective enforcement on this sub only. The city would have to go back and apply the same enforcement on every lot adjoining open space.
Jim
I don’t know if the homeowners have any claim against the developer. Before the acceptance there was an active, if frustratingly slow, negotiation between the 3 parties (homeowners, the Town, and the Developer). The acceptance of the land effectively ended this negotiation and let the developer off the hook in many respects. Acceptance of the Land was a lever that the Town had. Before acceptance the developer had to pay taxes on the land, now we all have to pick up the slack.
The Town (not the city), was negligent, in my opinion, in not enforcing the marking of lots which is required by our zoning by laws. There was a large development in my neighborhood and the same thing happened. I believe this was common practice.
I am not sure about the selective enforcement claim. Certainly the Barn Hollow neighbors were bullied and vilified for activities that also occur elsewhere. The town, quite frankly, should not be spending it’s precious tax dollars on snooping in peoples back yards. If it has enough money to do that then I see a budget that should be cut.
I believe the Town should take a more proactive approach to open space and actually implement policies consistent with the words written in our zoning and sub division by laws. Why not work with neighborhoods to develop management plans for our open space parcels. Let some some portion be identified to be regularly or irregularly mowed by the neighborhood to provide common space for play, playgrounds, dog walking, sledding, skating, butterfly habitat, coyote buffers etc. This could be done at little or no cost to the town and would have a positive effect on property values.