Does the Design Review Board report matter?

In an earlier Facebook post, I commented about my reaction to the Applicants’ response to the Design Review Board (DRB) report, submitted in early 2018.

In short – the DRB was formed after the Town Center zoning district was defined, in order to ensure that the Planning Board (which considers building applications in all town districts) would have input from a Design perspective specifically in the context of the ‘Town Center’ zone… which was meant to be a mixed use area, you may recall.

The applicant, specifically James Fenton, expressed considerable frustration at the February Public Hearing (see here for video of the meeting) regarding this report, largely because he didn’t feel that their input was timely, because it went into considerable more detail than a meeting that was held in early 2017, and because he didn’t believe it mattered what the DRB wanted, since he’d rather let the buyers of the homes decide what their houses should look like.

There are *big* flaws in these objections, from what I can see. And I find it an incredibly ‘karmic’ reality for the Boxborough Town Center, LLC owners, since the DRB’s mandate comes directly from the same set of zoning bylaws that these applicants invoke to insist that they have the right to build this massive, high-density housing development in the first place.

To get specific, according to our bylaws:

Bylaw statement pp. 66-67: “Design Review in accordance with this section shall be required for: (1) new construction, exterior alteration, or expansion of buildings in the Town Center District ( except for pre-existing single-family dwellings as specified in Section 4302) where such new construction, alteration, or expansion is subject to site plan approval under Section 8000 or is subject to a special permit; and (2) new or modified signs in the Town Center District … The Design Review Board shall evaluate the proposed construction, alterations, or expansion based upon its published Design Guidelines, and shall submit its written findings and recommendations to the Planning Board or the Board of Appeals, as appropriate, and to the applicant.” furthermore:  Bylaw statement p. 64 “Where the Planning Board renders a decision contrary to the recommendations of the Design Review Board, the Planning Board shall state the reasons in writing.”

Thus, while the applicants did have a meeting with the DRB in 2017, the results of this meeting were never delivered in writing, in the form of a detailed report, to the Planning Board. I do not honestly know why this step took so long to happen. Over the past year I had several residents raise the question, and yet still the DRB didn’t meet. What I’ve heard is that the committee didn’t have enough members, and thus in late 2017 the BOS approved the addition of two members to the DRB. This full complement of members then met (i believe at least 4 times for a total of over 10-12 hours) to review the documents and prepare the written report that was submitted to the Planning Board.

This report covered all sorts of visual aspects of the proposal, and some excerpts from that report are pasted below, tho the final paragraph provides an excellent summary:

“The rear elevations for each of the building styles have also not been provided which makes it difficult to determine what view the abutters in the surrounding area would have of these dwellings. This rear view elevation should also be presented as a grouping of buildings to allow for an understanding of how these elevations for the entire proposed project will relate to the abutting properties. The grade changes from the front of the buildings to the rear are significant (up to 8 or 9 feet in some places) and often times create a transition from a two-story building in the front to a three-story building in the rear, which includes a walkout basement. A three-story building including a walkout basement will create a much different visual experience than a two story building.

“The buildings are entirely too close together for a rural residential setting, being all residential and no mixed use. Any harmonization with the environmental surroundings is ignored in the barrage of close housing. The lack of variation in setbacks creates a more mechanical cookie cutter placement with large structures crammed into a small area, similar to overwrought row houses without the charm.

“Boxborough’s general character is summed up in the phrase “scenic, historic, and rural character.” The grade changes, setbacks, rear elevations, and structures are overpowering and clearly not in harmony with the site and are intimidating to the abutters. Allowances were made in the Zoning Bylaw specifically to support a mixed-use Town Center at the location of the application. The current proposal eliminates any potential for a mixed-use project at this site. Further, the subject properties add no access and create a private compound separate from the town with no mixed-use development. While it is subjective as to whether there are design elements that are aesthetically pleasing, or good in the context of other sections of the town or region, the review criteria here is documented by the Design Guidelines. It appears that not only is the proposed project very inconsistent with those changes, more importantly the project significantly violates and is inconsistent with the attributes of the Design Guidelines.”

With all of that said, I am very interested to see how the Planning Board incorporates this feedback into their final decision. Again, according to the relevant Bylaws, if the PB opts to disagree / not follow the advice in this DRB guidance document, they are required to submit – in writing – an explanation for why their decision contradicts the DRB. 

I sincerely hope that the PB does not acquiesce to the Applicants’ desire to seemingly ‘have their cake, and eat it, too’.

Beyond the case for denial, what about conditions?

Since November, I (and much of our community) has been more focused on denial than the various drafts of proposed conditions that the Planning Board has presented.

And, while there is a *strong* legal argument for why the Planning Board should deny the current application – on the basis of the relevant 2012 by-laws legal precedent, and also when considering that the Applicants appear ready to sue the Planning Board no matter what they decide. (Please note, if a legal suit is filed by abutters after a conditional approval decision, the applicants can move ahead with their development plans. Whereas if the site plan is denied, the applicants can sue but are not permitted to proceed while that court case is under consideration.)

Again, despite all these arguments that support a Denial decision, it remains important to the Planning Board to have made a heroic effort to try to find conditions under which the proposed site plan would be suitable for the land, and the community / town. As such, they submitted several versions of Draft Conditions for responses from the community and the applicants.

We’ve prepared a side-by-side document of the Applicants’ responses (signed by James Fenton, of the Boxborough Town Center, LLC) to the January 1, 2018 set of draft conditions, so as to make it easier to see where the Applicants object.

I’ll let you read for yourself, but as you might imagine, most of the draft conditions that were included in response to the concerns raised by the residents of Boxborough are unacceptable to the Applicants…


Legal viewpoints on the Town Center proposal

In a collection of posts this weekend, I will provide several pieces of material (click on the highlighted links to read them) that have been shared in the Facebook group, and likely will be discussed at the FINAL Public Hearing on Monday, March 5th (8pm @ the library).

To start, a post from Lynn Stahlberg highlights that the Agenda includes a note about planning for an anticipated lawsuit, and also provides the 4th letter from McGregor & Legere (as funded by the community to look at whether the applicants are breaking any of the zoning by-laws with their proposed development). The ‘SoTC’ group also provided a final letter to the Planning Board, summarizing the position of that group, and the groundswell of support they received from community members.

All materials are in the public record, and most are available on the Town website, but we’ve included a collection of them on our page, for easier reference.

Major turning point in the Town Center saga happened some time yesterday afternoon after the applicants submitted 4 letters of response to the PB: you may have missed it if you didn’t look at the very last bullet on the PB Agenda doc. It reads:

“Executive Session: Pursuant to MGL Chapter 30A, Section 21(a)3, to discuss strategy with respect to the threat of imminent litigation concerning the 700, 750 & 800 Mass. Ave. Site Plan Approval and Stone Wall Alteration application.”

McGregor & Legere sent a fourth and final letter to the PB on Wednesday, summarizing all their legal arguments for a denial of this application and restating what they believe to be the key obstacle: emergency access via Priest Lane. (See applicants’ response)

So, the PB’s decision may come down to this: is Priest Lane access subject to a Special Permit for Alternate Access (as our attorneys argue) or only a permit for Stone Wall Alteration (as the applicants’ attorney argue). McGregor & Legere have found “multiple, independent, free-standing legal grounds, each of which is sufficient to justify an outright disapproval,” but Priest Lane looks like the winner because the PB has full discretion, if there is any ambiguity, to interpret the town’s zoning bylaws! ”


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. 


Public Hearing – LIBRARY, tonight!!

Hi – I think you all know by now, but we really want to have a great showing of support this evening.

I can promise some EXCITING news – so please join us, and come early to get seats.

We’ll be online on Facebook, too – likely in the Neighbors of Boxborough page. But we really need bodies in the room!

see you very soon!

Town Center plus a Solar Farm – 2 days and counting!

We didn’t make it into Action Unlimited this week, but they did publish our announcement for the 11/20 meeting – all the text is still relevant, so I’m highlighting it here.

I know it was frustrating in the extreme to make plans (and recruit neighbors!) to attend last week’s aborted Public Hearing – but that just makes it MORE important that we do everything possible to fill the room on Monday night!

Come hear about Conditions – and some NEW research from your community!

Sargent Memorial Library – the estimated start time is 8:20pm, but we’d love to have the room filled *before* the official start time at 7:30.

The earlier discussion will also be of interest, in fact – did you know there is a proposal to put in a large-scale Solar Farm on old Cisco property? It’s a tricky debate – clear a LOT of trees to make way for (commercial / for-profit) clean energy. Public input is welcome and encouraged on this project, too!

(EDIT – the Solar farm is NOT on the 11/27 agenda, but will be on the schedule on December 18th. There is a great commentary posted by a resident on the Environmental Council who is supporting this proposal. Please read her rationale if you’d like to learn more!)

Enjoy the weekend, but please join us Monday night.


‘Elderly Housing’ – What’s in a name?

So, by now you likely all know that the last Public Hearing was cancelled at the last minute. The Beacon covered it earlier this week, actually, though I think they missed one point, in that the Applicants *did* make a request to the Planning Board to issue a continuance… ie, it wasn’t just the Planning Board’s idea.

Nonetheless, the Beacon article sparked a discussion in the Facebook group that raised an interesting point. Namely, much of the coverage in the media has been referring to this proposed development as ‘Elderly’ housing. Which made one community member comment whether it was reasonable to call a 55+ development ‘elderly’? I mean, even the ‘Senior’ housing label feels like a stretch, given how our population is aging, and that 50% of 64 year olds are still working full time.

Let’s consider a few things, like ‘Who Can Live Here?’, and ‘Senior Occupancy vs Ownership’, and ‘Benefits of Intergenerational Programs’:

Who can live here?

A few Hearings have covered the question of what ages will be permitted to live in these homes, and also how those age restrictions will be enforced.

Thus far, the best answers I’ve heard have been that at least 1 person over 55 must live in the home, and no one under 18 can live in the home for longer than a ‘visit’.

This latter condition was included in order to minimize the cost to the Town by way of limiting increased demand for services (ie school enrollment). In stark contrast, there is a whole Fiscal Impact Assessment that was submitted by the applicants earlier this year that makes a case for why the homes will bring more tax benefit than burden to Boxborough.

It is a great read… but I confess I ‘snorted’ a few times when I reviewed it. Especially the contradictory sections

Text from the Applicant’s Fiscal Impact Analysis

where the applicants claim that the occupants will not create much traffic, since 55+ retired residents don’t drive during rush hour – BUT the residents will bring a huge amount of disposable income (since the majority of them will be younger than average retirement age). Oh, and all that extra income they have to spend? It will remain in town, when spent in local businesses such as grocery stores and restaurants. Ha! Glad their data is so relevant to our community.

Occupancy vs Ownership:

One other interesting point was raised back in March, regarding whether the Planning Board has the authority to require that the age-restriction is applied at the level of occupancy versus ownership. In other words, if it were the former, the 55+ occupant could live in the home even if someone else (an adult child, perhaps) bought and owned the $550,000+ property.

What I haven’t heard a great answer for, to date, is what happens when/if the 55+ occupant moves (perhaps to a senior care facility?), or dies. Would the under 55 owner of the property be forced to sell? The unknowns surrounding this question may be behind the recent draft Condition that requires the age-based deed restriction to be Owner-defined, rather than just based on the age of the occupants. Notably, the representative from Toll Brothers expressed a strong dislike for this condition, when it was raised back in the spring. Presumably the smaller ‘buyer pool’ could have a negative impact on initial property sales?

Benefits of Intergenerational Spaces & Programs:

One other ‘food for thought’ point I’d like to add to the conversation is that I’ve been reading more and more lately about the value of ‘Intergenerational Programs’. Put simply, this is the growing practice of creating spaces and programming that bring children together with seniors. A quick google search on the topic finds an article in ForbesIntergenerational programs: Not just Nice, but Necessary“, and a link to Bridges Together, “the only organization in New England – and one of a few in the United States – devoted to training others to implement successful and meaningful intergenerational programs.”

Personally, I find these sorts of programs incredibly compelling – there’s a great blog post how these efforts combat the social isolation that comes with aging from a Boston-based senior advocacy group. And, quite honestly, this idea is why I was looking forward to the idea of a mixed-use Town Center, in the first place. A central location that combined senior housing with walkable services and gathering spaces seems exactly what our aging population needs.

Ok – I’ll leave it there for now. But I’d love for this discussion to be picked up at the Public Hearing on Monday! (8:20 pm at the Library).

By George, I think they’re LISTENING!

Well, I confess that ‘real life’ got in the way of my best intentions, today. I had hoped to put together a detailed overview of the Draft Conditions (available here) that were distributed at the (not quite) Public Hearing last night, but ran out of time.

That said, I don’t want to keep you all in suspense, so I’ve prepared a ‘quick and dirty’ list of the things that caught my eye.

I encourage you to read through the whole document yourselves; you may be surprised to find the substance of your own comments reflected in what is being considered. From my point of view, I see a LOT of what I’ve heard brought up at Public Hearings to date – by the Public.

In other words, the Planning Board really have been hearing us, and this document shows that our letters, comments, petitions, and requests MATTER.

Nice feeling, isn’t it? 🙂

So, to sum up:

These Draft Conditions were prepared by consultants at the request of the Planning Board, and were informed / guided by input from the Board as well as the Town Planner.

They were provided – for the first time – to the PB, the Town Planner, the Applicants, and the Public at the Planning Board meeting last night (11/20). The Public Hearing component of that meeting (with respect to the Town Center development) was granted a continuance (at the request of the applicants) because the Applicants had not had any time to review the document in advance, and because Town Counsel was not available to attend the Hearing to provide their comments on the Draft Conditions.

The postponed Public Hearing was rescheduled to Monday, 11/27 at Sargent Memorial Library, and has been given an estimated time of 8:20 (actual start time of the meeting is 7:30).

At that meeting, this list of Draft Conditions will be discussed – presumably one by one – by the Planning Board, the Applicants, the Town’s Counsel team – and YOU.

It is unclear how the Public comment component will be organized for this discussion, but if we find out more in advance, please sign up for our various newsletters so we can keep you posted.

(Important note – these are NOT final Conditions, but drafts – and will require both legal and public feedback before being revised and deliberated by the Planning Board at the close of the Public Hearing. Your input may well influence the final outcome. Please don’t miss that opportunity to play an active role!) 

Finally – we continue to see a building of momentum in terms of local interest  / traffic to the website and Facebook groups. As someone pointed out to me, we’ve had more page views in the last 2 days than there were residents present for the most recent Town Meeting’s best day. Not too shabby!

I will have more updates as the week progresses – particularly regarding the question on many minds: Can the Planning Board still DENY to issue a Site Plan Approval?

But in the meantime, we wish everyone a Happy Thanksgiving. No matter what happens with respect to this development, I think it is very safe to say that we ALL have much to be thankful for, and being a part of this community is certainly one of the top items on my list this year.



Want to be ‘the first to hear’?

Good morning!

We are all working on wrapping our heads around everything that happened last night, and will get a summary description post done asap.

HOWEVER, one thing we learned is that there are still a lot of people who plan to attend these Hearings who aren’t on our various mailing lists, or who are missing email notifications that get shunted into ‘spam’ or ‘promotions’ folders.

We have several methods to make sure you are updated in ‘real-time’:

  1. Scroll to the bottom of our homepage, or click here to reach us in 2 ways: a) send an email via ‘’, or b) sign up for the newsletter listAdding yourself to this list via the website also means that you will receive an email when a new blog post is published.
  2. You can also join our email mailing list via the public Facebook page, Neighbors of Boxborough
  3. Note – for email mailings, we’ve started using a free service that makes it easy for you to ‘unsubscribe’. The catch is that the emails come from ‘Boxborough Town Center’, rather from either of us, as individuals. Thus, you need to check your spam and promotions folders, and add the email to your contact list. 
  4. You can ask to join our closed Facebook group – just for Boxborough community members. We mostly talk about the Town Center project, but we also share notices about other development projects in town, road closings, and community-related events / public service announcements. It is a friendly place, and a fun way to ‘meet’ neighbors.
  5. You can join – which is basically everything I just described about our community Facebook group, but also has other topics like classified ads, recommendations of local services, notifications about lost pets, etc. I find it very handy, and the Boxborough population has grown recently to over 550 people!

So, if you follow any of these steps, you will be amongst the first to know about any upcoming meetings – and especially about time / date changes… since it seems they have been happening a LOT (often right when we have a large turnout planned…. some say coincidence, but – well, you should decide for yourself).

Running scared? The Developers cancelled tonight’s meeting!!

Dear all,

Well – our wave of support & interest may have thrown a bit of a wrench into things today.

In theory, in just a few short hours, a large portion of our community was supposed to gather  to hear the Planning Board present – for the first time – its drafted set of Conditions upon which it may accept the submitted proposal to build a private development of 100 new homes on the parcel of land that was intended to become a shared, mixed-use Town Center for all.

However, at the 11th hour (again!), the applicants have indicated that they will request a continuance this evening, since the Planning Board did not provide them with an advance copy of the draft Conditions.

Those Conditions were to be reviewed in front of Town Counsel, who had to cancel their appearance tonight due to a family member’s death.

(Side note – in the last 10 months, at the majority of these Hearings, the applicants have brought ‘new material’ to the Planning Board – without giving them any time to read it in advance. I can’t for the life of me see why the Planning Board couldn’t present their draft Conditions tonight in person, even without Town Counsel present. Seems like a convenient excuse to me – one that smells like something straight out of a ‘how to break a community’s momentum’ play book… no?)

So, a number of us will be sure to attend this evening to push for a pubic continuance – ideally with as much notice as possible, given the scheduling changes that were already made by many to attend the meeting tonight! – and we will circle back to let you know when that next Hearing will be held.

(If anyone would like to join us, feel free! We can even move the ‘meeting’ to a different public place if we can answer any of your questions, or if you’d like to meet some neighbors with related concerns)

That said, I’ll just leave you with this illustration of just how engaged we have all become, at least based on our website traffic this weekend.

As you can see – and the pattern is consistent in the volume of Facebook discussion in both the closed and public groups – there is a large and growing groundswell of interest and objection amongst community members.

We have not given up.

We will NOT give up.

We will not accept this proposal as a matter of attrition.

Thank you for sticking with us in this – even in the face of what feel like sneaky corporate maneuvering!

Yours in community,

Heather, Wes, and so many of your neighbors.