From last week’s Newsletter: Why DIRT is what matters

For those who don’t receive our email newsletters, here’s a blog version of our explanation of the core of the letter our Legal team submitted to the Planning Board on 11/27.

(In the meantime, we are still raising money and have commissioned a second letter from McGregor and Legere. You can read it here, and I’ll blog again soon to summarize what they found. In a nutshell, there are many examples of Massachusetts Planning Boards denying applications similar to what has been proposed by Fenton/Jeanson/Toll, and those denials were upheld in court. All of this underscores our demand to DENY the current site plan application.)

Basically, we paid for legal advice, and were told: “It’s all about the ‘dirt’.”

In this post, we have updates on the following:

I. A lay-summary of the Legal case to Deny of the project, as presented on 11/27 by the community-retained legal team of McGregor and Legere.
II. A brief explanation of why we went this route, and why the Planning Board didn’t find this information on their own.
III. How to contribute to our ongoing Community Fundraising.

Before we explain why Dirt is the deciding factor in Massachusetts, we want to put this message front and center.

We are raising money to Support the Planning Board, under the philosophy that it is better to Spend Now, rather than Pay Later.

To clarify, in bullet point form:
We support the Planning Board. We feel that, as part of their deliberation, they need all available, professional material that informs their decision, and demonstrates the community’s position on this proposal. The material we provide is entered into the public record, and is useable in their defense if their decision is challenged in court.
– We believe there is a strong legal argument to support a Denial decision. 
– We will not be put off, shouted down, negotiated out, or overpowered by insiders or outsiders who chose to put profit over safety and/or the needs of our Community.
We are here to stay, and we will support our Planning Board in their efforts to uphold the intention of our by-laws, and the 2030 vision of our hometown.

Our research indicates that by investing in experienced legal research and professional expert analyses now, we will provide the Planning Board with a defensible position to Deny the current proposal. By doing so, we protect the safety of our roads, the rural nature of our community, and the potential for the Town Center that was voted for by us, decades ago.

If you are willing to invest in our Town in the ‘now’ to avoid the future we fear is coming, please contact us at


I. What is the Legal case for Denial?

Let’s get back to the Dirt. As our attorney presented last week, there are numerous legal reasons why a Denial is not only justified, but the responsible outcome based on the current site plan.

Remember when we were wondering about why the 2012 subdivision plan (for a couple of buildings), entitled the developers to an 8 year zoning freeze?

It turns out, Massachusetts offers this level of protection so that landowners don’t face a constantly changing landscape of bylaws after they initiate a building project. (I don’t object to this, to be honest – it seems quite reasonable to me. I’ve always said that I am not anti-development, but that I object to the mis-use of the intent of our zoning by-laws.)

So, in this case, when the applicant’s subdivision plan was approved in 2013, they earned an 8 year window during which they can update or expand their proposal to use the land delineated on their approved map according to the 2012 by-laws. In other words, the dirt within their defined plot of land still thinks that it is 2012, even though the zoning by-laws changed a matter of days after they first submitted their proposal.

BUT the site plan application, as currently proposed, hinges on the use of additional parcels of land that are OUTSIDE the ‘protected dirt’.

Specifically, the applicants have a Purchase and Sale agreement to buy this extra land (‘Parcel A’), but this ‘dirt’ does not enjoy the zoning freeze, and thus must be held to the current zoning by-laws. The current site plan shows existing wells, which can be considered ‘accessory structures’ which are so close to the property line that they do not satisfy 2012 setback by-laws.

Additionally, even if the wells were positioned far enough from the property line, the ‘sphere of influence’ of those wells (ie, the land from which groundwater is drawn to feed the well) falls onto the land in Parcel A – which again, is ‘unprotected dirt’, and therefore requires a special permit.

There are other legal reasons to Deny in the letter, too – both from safety and water / environment protection angles.

But for the sake of brevity (ha!), let’s shift the discussion to the question on everyone’s mind. Indeed, it is this question that I’ve been asking myself since January – and also the reason why we, as a group, have waited this long to retain professional legal input.

II. Shouldn’t Town Counsel have found this answer, themselves? 

Why did WE have to go to Boston, collect funds from local residents, and spend a lot of money to learn what seems just so simple – right?  Does that mean we are just throwing out a red herring, or distraction? Nope.

What has finally become clear, after directing many questions to the Town Planner, the Town Administrator, the Planning Board members, and both current and former BoS elected officials, is that:

a) The Planning Board doesn’t have a mandate to ask Town Counsel anything. (Let that sink in, a bit… in terms of what that means for any development that is proposed to the Planning Board. ?!)

b) The Planning Board can request the Town Administrator to direct Town Counsel to answer specific questions, but not to perform an all-encompassing Site Plan review.

c) The Planning Board has been allowed less to spend on legal and expert analyses performed on this project in the last 11 months than we, as a group of 29 citizens, spent on only 2 weeks of legal aid.

In lay terms, I think of it this way:

The Planning Board can only direct specific, focused questions to Town Counsel. The Planning Board members are elected officials, but are essentially inexperienced citizens, volunteering a ton of time in service to our town.

They do not know which stones remain unturned, since they do not know which stones to even look under. 

They don’t know what they don’t know.

McGregor and Legere have been investigating proposals like these, in communities like ours, for years. They knew where to look, and what to look for.

So, in the end, it isn’t that surprising that they found something that is durably, legally, justifiably valid that the Planning Board missed.

III. What can I do?

It’s pretty simple – and for those of you who’ve been listening to me for virtually all of 2017, it will sound pretty familiar, too:

1. Tell your neighbors. I’m shocked how many people in town still don’t know what is going on.

2. Write to the Beacon – they will publish letters from the public, and would likely LOVE to hear from someone other than those of us who keep pestering them with Correspondence.


3. Support our legal efforts – And here, we come back full circle. We don’t want to spend extra money when we all pay taxes and expect that those funds are being used to defend our by-laws and our elected officials – not to mention the decisions we vote on as a community, such as the Town Center zoning and the Boxborough 2030 plan.


If there are political lines of red tape that somehow prevent the Planning Board from obtaining the information they need to make an informed decision, we will be poised to fill in the gaps.

We will not sit by and let commercial interests trump the needs of the community. We will collect funds, and be available to find and hire experts, and provide professional data as needed. 

We’d love to have your help – and we thank the growing number of neighbors who are adding to our ‘war chest’. We hope we can just hold it in reserve, but in the short term, we want to make sure that what has already been spent on retaining McGregor and Legere is not lost in the shuffle. Their legal expertise is inarguable – as is their case for DENIAL. 


One Reply to “From last week’s Newsletter: Why DIRT is what matters”

  1. Write to
    Boxborough letters have not been published in the Beacon recently. One of their managers is looking into why. In the meantime, after you send in a letter about the Town Center development, please call Jesse Floyd either at his office [978-371-5742] or his cell [978-618-7583].

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