As many of you may know, Judge Walker in Superior Court has ruled in favor of the Chelmsford Board of Selectmen’s motion to dismiss my request for an order to enforce the Preservation Restriction on the land that is supposed to be Center Park but is now dubbed “9 North Road.”
Unfortunately, the court originally sent the parties a copy of the decision that was missing two full pages. But I received a full copy of the decision over the weekend, and the thrust of the court’s reasoning is that the Preservation Restriction statute does not contain within itself any requirement that it be enforced. The court ruled that the absence of an explicit statement in the statute itself means that enforcement is discretionary. That in turn means a PR isn’t a PR at all – it has no more legal force than a suggestion.
The consequence is that PR's all over the state mean nothing because the bodies charged with enforcing them can simply look the other way and reward politically connected developers by permitting development on protected land if they decide by fiat that they wish to do so.
The statute begs for an interpretation that requires holders of restrictions to enforce them. Otherwise, the PR statute is truly a meaningless law subject to the whims and caprice of any board charged with the duty to enforce the restriction. The court’s interpretation is dangerous because all a connected official needs to do is wait for a compliant board that will vote to look the other way, and a PR is as useless as though it was never recorded in the first place. Taking this case as an example, the BOS has looked the other way to allow the Eliopoulos LLC to build a non-conforming structure as though there were no PR in place at all.
I have a tough time believing that is the law. So we are of course preparing to appeal this perplexing decision. I want an appellate court to tell the citizens of Chelmsford that their selectmen can ignore the language of a PR and allow a development on protected land proposed by the father of a former selectman.
The Appeals Court will recognize that ruling imperils goodness knows how many PR’s on the books already. I believe that the appellate court will explicitly state that the law is there to be enforced and that holders of PR’s have a duty to enforce them. Otherwise, PR’s are meaningless.
It’s certainly difficult to understand why the Legislature would bother to enact a set of laws which allow for the protection of land if public officials entrusted with the responsibility to enforce the law have no legal duty and can enforce or not enforce the law, at their whim.
There is no arguing the fact that the Chelmsford Selectmen have abrogated their duty to enforce the preservation restriction on Center Park, in favor of private development interests. They cannot win any legal argument that the development at 9 North Road is in compliance. Instead they have once again won a decision favorable to the Eliopouloses on a technicality – that I, and all citizens of the town, lack standing to pursue redress because we are all harmed equally by the BOS refusal to enforce the law. Thus I was not allowed to even argue before the court whether it is correct to interpret enforcement of the statute as discretionary.
Town Manager Paul Cohen has publicly stated, "Hopefully, the town will not need to devote any additional legal expenditures or staff resources on this matter." It must be noted that if the BOS simply acted to enforce the law on behalf of the residents of Chelmsford, rather than favoring a crony’s private development interests, this lawsuit and previous legal actions by others would never have been necessary.
In fact, this lawsuit would go away tomorrow, be rendered totally unnecessary, if the BOS would simply assent to enforce the law. But this they refuse to do.
This ruling is a landmark ruling that could lead to chaos if it’s not appealed. It appears to mean that officials can decide not to enforce any law that doesn’t declare within itself that it has to be enforced. It’s an open invitation to graft, and is obviously contrary to the intent of all the anti-graft legislation that’s been passed at the state and federal level.
The full decision is posted here.
I will keep you apprised of further developments upon appeal.
Roland Van Liew