Andover Footnotes

The MetroWest Daily News published an article on October 13 entitled “Developer threatens to sue Southborough over 40B decision.” Read the article at http://bit.ly/alHVEX.

Opponents of the Taylor Cove 40B condo development attended the April 4 Conservation Commission meeting wherein the developer asked that his Order of Operations for Victoria Place be extended so that he could instead build Taylor Cove on the site—the five-house Victoria Place plan having been shot down by the Planning Board a number of years ago.

After the meeting, the opponents reported that the Commission had seemed set to deny the request when the developer’s team acted surprised, saying that, since they hadn’t moved the road an inch (which some theorize accounts for the awkward placement of the Taylor Cove condo buildings), the original permit should still apply. “Acted” being the operative word, as the ZBA members had clearly stated during their deliberations, attended by the developer, that they believed the Cons Comm would recognize that Taylor Cove was vastly different from Victoria Place and therefore deny the extension.

The developer asked for a continuation to provide time to seek legal counsel, and it was granted. Tonight the hearing continues. The meeting opens at 7:45, and there are five items to be heard ahead of Victoria Place/Taylor Cove. Each agenda item is limited to 15 minutes maximum, so our agenda item might not come up until 9:00, but there’s no way to know for sure, and some items are expected to take less than 15 minutes. To play it safe, opponents should arrive around 8:15.

Andover’s Town Counsel, Tom Urbelis, has stressed that it is important for opponents to attend the Cons Comm hearings, so please come to this critical meeting and be prepared to share your concerns about what the construction of 32 townhouse condominiums with garages and associated visitor parking, built on land sloping down to Shawsheen River tributary, with an outdated out-of-compliance drainage-basin plan, might do to the environment and our Andover neighborhood.

Meeting Details:

ANDOVER CONSERVATION COMMISSION
April 13, 2010 @ 7:45 P.M.
36 Bartlet Street
1st Floor Conference Room

City eyes appeal on Brierneck:

Gloucester seeks to overturn Chapter 40B ruling on condo plan

Published: March 28, 2010 11:28 pm

By Richard Gaines, Staff Writer, Gloucester Daily Times

Dating to the 1970s, the city’s longest-running legal struggle — against a tag team of the state and a developer intent on using the state’s Chapter 40B affordable housing law to build condos on a filled salt marsh behind Good Harbor Beach — has gained new life…

[To read remainder of article, go to http://www.gloucestertimes.com/punews/local_story_087232817.html.]

The next ZBA hearing on Taylor Cove will take place March 4, 2010, at 8:00 PM in the 3^rd-floor conference room in the Town Offices at 36 Bartlet St.

The ZBA chairman has indicated that he hopes to wrap up the hearings with this meeting, so it may be residents’ last chance to express concerns about the proposed condo development.

Please make every effort to attend if you care about the outcome.

Case Related to 40B Project in Wellesley

Charlotte Dr. resident Mick Mueck shared this article from the February 23 Land-Use Law Round-Up newsletter by Daniel C. Hill:

Appeals Court Weakens Protections from Retaliatory Lawsuits

The state Appeals Court today ruled that victims of retaliatory lawsuits cannot recoup their legal fees and expenses when the perpetrator voluntarily dismisses its suit before a court enters judgment for the victim.

The Court applied a strict interpretation of the so-called “anti-SLAPP” statute in ruling that attorney fee awards are only available if and when a judge makes a finding that the suit is indeed retaliatory. Connolly v. Sullivan, Appeals Ct. No. 09-P-597 (Feb. 23, 2010).

The plaintiff in that case, the former Massachusetts Secretary of State Michael J. Connolly, had sued an abutter for $5 million in damages for challenging an affordable housing project being promoted by Connolly in Wellesley. The abutter filed a Special Motion to Dismiss under the anti-SLAPP statute, but before the trial court ruled on the motion, Connolly voluntarily withdrew his claim.

The statute was enacted to prevent real estate developers from filing specious lawsuits against their detractors in order to intimidate or quell opposition to their projects. The statute awards the victims of such suits their attorneys fees when successful.

Today’s ruling is troublesome for victims, because it gives developers a parachute to avoid the fee-shifting consequences of filing such claims. Developers can now engage in the egregious conduct by filing the suit and forcing defendants to spend thousands on attorneys to draft the Special Motion to Dismiss.

The costs of preparing the Motion and presenting oral argument before the trial court could easily exceed $10,000, which victims will not be able to recover if the developer dismisses its suit before a judgment.

The state legislature could correct this ruling by amending the statute to preclude voluntary dismissals while a Special Motion to Dismiss is pending.

The Taylor Cove developers will hold “an informal meeting with abutters to discuss landscaping issues” at the office of Donald F. Borenstein, Esq. (12 Chestnut Street, Andover) on Wednesday, January 20, 2010, at 7:00 PM.

The meeting is an opportunity for residents to encourage the developer to do whatever possible to retain the natural aspects of the topography and plantings, and to promote the use of appropriate plants for screening purposes.