The purpose of this message is to inform you, as residents and voters of Chelmsford, about the legal position taken by your Board of Selectmen regarding the breach of the preservation restrictions which are in place to protect North Road from the kind of development the Selectmen have permitted on that land.
You may recall that for two years, Chelmsford’s Board of Selectmen publicly stated that the preservation restrictions which encumber the property behind Center Fire Station are simply not being violated. As recently as April, selectman Jon Kurland wrote that 9 North Road still functions as an “open space conservation area” and that the recreational park (dubbed Center Park in 1978 when the Town sold the land with those restrictions) still exists, get this, as the strip of grass between the Eastern Bank driveways and the pond. This comment would be funny if it weren’t for the fact that the “open space conservation area” specified in the restrictions has been obliterated by the size and location of Epsilon’s edifice.
It is obvious to any reasonable dispassionate person that multiple provisions of the preservation restrictions are being violated. For instance, Epsilon’s office building is neither small nor barnlike as required. Have any of you ever seen a barn which has rows upon rows of office windows, multiple porticos, or a 58-bay parking lot? Neither have I. Adding an architectural element here and there which looks like a barn door or a gable does not a barn make. Because the Selectmens’ position violated the letter and spirit of the preservation restriction, as well as the state’s preservation restriction statute itself, and because the Board is obviously unwilling to voluntarily uphold the law, I brought a suit against the BOS. It’s clear that under the Public Right Doctrine, residents have a legal right to request that the Court order the BOS to carry out its legal duty and enforce those restrictions.
The kind of claim I brought is what is called a mandamus, which basically seeks an order from a court commanding a person or group to perform its legal duty. Although the Town Manager has made public statements that such an action was raised and dismissed previously, the reverse is true. Prior to my suit, no person has EVER brought a claim seeking a writ of mandamus against the Selectmen concerning North Road. The Selectmen keep saying such a claim was brought but they know this is false. Ask the Selectmen to show you the legal paper which sets forth a claim for mandamus against them concerning North Road. You will never receive any such paper – I guarantee it. If any of you were to send a public records request to the Selectmen seeking a copy of any complaint against them seeking a writ of mandamus re: North road, you will receive zero documents. You have all been lied to repeatedly in this regard.
The selectmen could simply answer the complaint and defend their prior position that the restrictions aren’t being violated, letting a finder of fact and/or a judge decide that question. Instead, incredibly, the selectmen have filed a motion in Superior Court asserting that they do not wish to have the preservation restrictions interpreted and enforced, and they claim – without any legal precedent whatsoever from any jurisdiction in the country, let alone Massachusetts, and without any reference to any existing statute (i.e., law) – that they have the legal right to refuse to uphold the law. Despite the existence of the state’s preservation restriction statute, the BOS’ legal position is that “there is simply no legal duty that requires the Board to take action to remedy an alleged violation” of the preservation restrictions. This quote is taken verbatim from page 8 of the Board’s motion to dismiss the complaint.
Think about this for a moment. There is a state law which says preservation restrictions are valid and enforceable. The North Road property has such restrictions. Epsilon’s grossly-oversized and un-barnlike office building violates the restrictions. The open space conservation area mentioned in the restrictions presently sits underneath Epsilon’s building and parking lot. And now the BOS says they have no duty to enforce the restrictions. Any objective, reasonable person understands that their position, if accepted, would eviscerate and render worthless the preservation restriction statute itself. What good is a restriction of there is no duty to enforce it?? What’s to keep any other BOS in any other town from rewarding a politically-connected family and allowing them to build on restricted land the way the Eliopoulos clan was rewarded?
The Selectmen’s motion to dismiss fails to cite even one case in support of the position that the Selectmen’s duty to enforce the restriction is discretionary. On the other hand, there is case law affirming that the Selectmen are required to uphold the law and that the duty of every elected and appointed official in our town is to uphold the law. One is not entitled to pick and choose the laws one wishes to uphold as an elected official.
In fact, there is case law which specifically says that land illegally diverted from public use is a proper subject for a mandamus, precisely the situation with 9 North Road. I have legal precedent which supports my case – the Selectmen have no such case, not one. Their frivolous motion to dismiss delays formal investigation and costs the taxpayers additional legal fees to Kopelman & Paige.
So what else is new?
But this they will not do! They have never had any intention of enforcing the preservation restrictions. The duplicity of the selectmen to this point in time is outrageous, lying to us about their intentions and refusing to uphold the law on our behalf.
Remember how George Dixon and the other selectmen voted against protecting Center Park in order “to save the town legal fees?” Guess who advised them to do that? That’s right, notoriously self-serving town counsel Kopelman & Paige, who have raked in over $100,000 in legal fees to date by the Town Manager’s own admission. If the BOS had moved to protect Center Park as residents had vocally encouraged them to at the reluctantly held public hearing in August of 2010, legal fees from any appeal from Eliopoulos & Co. would have been far less than that.
But the biggest cost, of course, is the relocation of the Center Fire Station. Besides the substantial impact on neighboring properties, there is nearly a million dollars in extra “site preparation” costs (a massive retaining wall for the unsuitably soft undersoil), a million dollars for yet another traffic light system on Route 129, and other costs that would not be necessary if the fire station were to be rebuilt at its current site – an option made impossible by the refusal of the BOS to enforce the preservation restrictions.
Phil Eliopoulos himself, when he was a selectman, pointed out the best option for a new Center Fire Station would be to “knock it down and rebuild it at the current location.” But the Town Manager refused to negotiate to buy the adjoining land on the cheap; the selectmen subsequently refused to take even a strip of the land by eminent domain, and have refused to enforce the preservation restrictions, any of which actions would have maintained the option of keeping Center Fire Station right where it is currently – and where the town’s own studies say it belongs.
The only reason to refuse to uphold the preservation restrictions is to facilitate illicit personal gain on behalf of a crony. The only reason to have lied about it for so long is to defraud the public and betray the public trust.
The town motto is not “Let the children squander what the sires have won.” Until the BOS and Town Manager understand that, there will be conflict as those of use who refuse to be exploited push back against unprincipled graft.
Roland Van Liew