Reverse Eminent Domain?

Anyone who even remotely knows me knows that I am a strong proponent of private property rights. As a Realtor I have fought for and supported homeowners' rights for over 25 years. But at a recent Board of Selectmen (BoS) meeting I was surprised to see the board entertain a public discussion with local real estate developer Jim Farnham concerning plans to develop land that is restricted from development.

Surprised because Jim Farnham, who by the way seems like a nice guy, a good citizen and a capable professional, had already been to the proper authority - the Planning Board - with his proposal and was essentially told to consider NOT spending any more money pursuing the proposed project because it could not be permitted.

Why? Because the land in question was restricted from further development by the Planning Board in 1980. The approval of the subdivision at that time created "pork chop" lots with a common driveway. When the PB signed the approval for the subdivision in 1980 it was with the clear understanding that the lots could NEVER be further subdivided. Ever. And the restricted approval was duly recorded with the deeds and the approved plan even has a notation indicating the restriction. The notation on the plan is common practice with the PB in order to assure that no one buys the property without the clear understanding of its limitations. Mr. Farnham concedes knowledge of this.

But here he was, discussing with the BoS the reasons why his "intent" for development of the property parallels the intent of the Senior Housing Bylaw approved by the voters in Hamilton.

This marks the first time I have ever seen a developer attempt to "go around" the PB by appealing to the BoS. Or perhaps it was the other way around. Either way, although Selectman Carey stated that the BoS was in no way attempting to usurp the authority of the PB, the fact that he invited the developer to come and state his case at an open meeting of his board speaks otherwise. Mr. Carey spoke of "disconnects" between the developer and the PB and and said he wanted "to see if there is anything we (the BoS) can do to help out." And he has suggested that the developer, the BoS and the Planning Board meet jointly to "toss around" ideas concerning the project to see if there is a way to make it work. He said he felt that it would be a shame to deny the first project application of the Senior Housing Bylaw.

But here are some facts to consider:

(1) If the property in question is restricted from development, it has to be denied by the Planning Board...period...and therefore should not be considered as a failed attempt to utilize the Senior Housing Bylaw because it was not applicable in the first place. Developers wanting to use the Senior Housing Bylaw need to first find land that conforms, not land that does not.

(2) The BoS is not the authority that interprets the subdivision control and zoning bylaws. That is the responsibility of the PB and the Selectmen should not be attempting to influence their authority, in any way. To do so is tantamount to an Eminent Domain taking in reverse. Instead of the town taking property for the betterment of the community, they are suggesting a private (non-public) entity be allowed to "take" property for private profitability.

Selectman Bill Bowler said it correctly: "I'm not quite sure what the Selectmen's role here is."

No matter how sensitive the developer is willing to be to the concerns of the town, neighbors and local affordable housing, if the land has been restricted properly from further development, as this property has, then that should be the end of the story.