In the time it took for George Dixon to decide to place the question of 9 North Road on the BOS agenda, Center Park, our historic Village Green, has become this:
The question is, why is George Dixon falling all over himself to deny that public opinion has anything to do with his decision making process? After Paul Cohen once again betrayed not only the residents but the Selectmen by issuing a construction permit on July 27, Dixon said last Thursday's decision to hold an open meeting had nothing to do with residents' input demanding it, nor the threat of a class action lawsuit. Nope, it was that Paul Cohen, along with Town Counsel,finally gave the green light! Dixon must be listening to these advisors rather than you, the good people of Chelmsford, because their past advice has been so darn good, right?
According to Dixon, he placed the hearing on the agenda only because they had successfully used the "passive defense"tactic to derail the appeal of the Planning Board permits. But the "passive defense" of the Planning Board permits never really has had anything whatsoever to do with the BOS' responsibility and authority to enforce the deed restrictions. Cohen and Town Counsel successfully bamboozled the BOS into protecting the Planning Board’s permits at the expense of rule of law and of course, at the expense of a pleasant, highly accessible green space for both residents and wildlife. The tail continues to wag the dog.
Dixon acted as slowly as possible. The meeting could have been scheduled for Tuesday, August 10. Dixon scheduled it for August 23. Two more weeks for the heavy equipment to operate.
Dixon appears to be terrified that someone will get the impression that he would be the first Chelmsford official in recent memory who would be evidencing any consideration for the concerns of residents. Apparently such a thought is just too repugnant within the corridors of Town Hall.
At smoking-gun.pdf we have posted a recently obtained memo providing new information that shows how duplicitous the Planning Board and the Town Manager have been in facilitating the Eliopoulos development plans. Town Manager Cohen at first refused to produce the memo, but since it is referenced in the published Planning Board decision he eventually had no choice. The memo from November 23, 2009 is from Town Counsel, advising the Planning Board that it “does have jurisdiction to determine if the proposed development is consistent with the Preservation Restriction.” Read it and you’ll see that it goes on to say that the Board of Selectmen has the authority to directly enforce the deed restrictions, and the Planning Board could certainly seek their input, but that “the question of whether to issue a special permit is within the authority of the Planning Board and not the Board of Selectmen.”
In other words, the Planning Board made a conscious decision to ignore the deed restrictions even though Town Counsel issued an opinion making it crystal clear that the deed restrictions applied to their deliberations on the Epsilon LLC special permit requests. The Planning Board members can no longer deny it, or assert that they were trying to act in our best interest. It should be noted that the Board would normally consider deed restrictions when issuing any permits, so it was interesting that they requested this opinion in any case. But upon receiving the opinion, they proceeded to ignore it.
As a result, not only did the Planning Board grant the special permits waiving normal bylaw requirements regarding setbacks and buffers, in doing so they allowed the developer to make the development plans such that they appear to violate multiple deed restrictions. For example, the Planning Board didn’t calculate the square footage of building and paved area, which is restricted in the preservation restriction to no more than 55% of the protected land area. But a calculation based on the publicly available drawings shows that the Eliopoulos development is bringing the square footage of building and paved area in the deed restricted land to around 70%.
The publicly available drawings also show that there is no credible “open space conservation area” included in the development drawings. There are only tiny spaces between parking areas and the proposed office building and the edges of the lot and pond. There is nothing even closely resembling an “open space conservation area” as required in the preservation restriction. See plot-plan.pdf.
There’s a third important deed restriction. Structures are required to be “barn-like.” The proposed building is five times the size of the largest barns that are offered for construction across the country. The building doesn’t look like a barn. The building, an office facility, is about as far from the functionality of a barn as you can get.
So that’s three likely preservation restriction violations that the Planning Board refused to even look at, even though the Nov. 23 memo makes it crystal clear that it was within their jurisdiction. Previous claims from Planning Board members that their hands were tied because only the selectmen could enforce the restrictions now seem even more disingenuous than they did originally.
This is all relevant to the upcoming BOS hearing Monday, August 23 at the Senior Center. The special permits should not have been granted. The deed’s Preservation Restrictions are almost certainly being violated, and should be brought in front of Land Court to decide which ones are being violated and how to rectify. At this point, the Board of Selectmen is the only authority that can directly bring such an action in front of the court. The Planning Board could have enforced the deed restrictions but chose not to. Any claims that Town Counsel issued an opinion that the PR was not being violated are absolutely false. Town Counsel simply indicated that the Preservation Restriction did not prohibit all construction. The determination of whether the Epsilon LLC project is consistent with the PR was left up to the Planning Board – which decided not to consider the PR when issuing the permits.
There is a massive, well coordinated effort by these people with personal interests at stake, to muddy the public perception of what the facts are. Phil Eliopoulos has a letter circulating in local newspapers that lays out nine bulleted “false claims” that he says I’ve made. All nine of these impressively formatted points are fabrications, misrepresentations and outright falsehoods. Not three out of nine. Not 6 or 7. All of them. Folks, when you have to fabricate all of the arguments you present to defend your actions, I would say that there is a major problem with your “logic.” And your ethics.
I’ve posted a complete rebuttal of Phil’s nonsensical assertions at phil-phabrications.pdf. But you don’t have to take my word for it. Former selectman John Carson has rebutted Phil’s nonsense as well, in this guest editorial: http://www.wickedlocal.com/chelmsford/newsnow/x297563370/Letter-Carson-outlines-artgument-against-9-North-Road.
It is not necessary for the Board of Selectmen to determine whether the PR is being violated. But it can be shown that it is exceedingly likely that at least three provisions of the PR are indeed being violated, and that should lend impetus to the case for placing this project before the Land Court immediately. The board already knows my position. Let’s hope that the general public is allowed to make these points on Monday rather than getting shouted down by those spouting the developer’s misinformation.
There is one more point that needs to be emphasized to the BOS. Town Counsel’s conflicts of interest are cogently explained in an open letter released to the BOS from Chelmsford resident and lawyer Dick McClure, which you can access at town-counsel-conflicts.pdf. Kopelman & Paige should be removed from advising on this project and, in fact, should be removed as town counsel entirely. Why is the Board of Selectmen even listening to them at this point? Their advice has been wretched from start to finish. Their poorly written opinions and counterproductive “advice” (including Cohen’s favorite “passive defense” of development interests at every turn) have led to our current state of constant, needless conflict.
Yours with best wishes and hope for the future of our town,
Roland Van Liew