Muddled attempt to stop Mass. Ave. fails at Town Meeting

Vowing to stop the Mass. Ave. redesign, opponents failed to block a motion at Town Meeting upon which the fate of the project did not actually depend.

At the Arlington Diner

The motion, which passed by a lopsided vote of 135-32, authorizes the Town to take easements to facilitate the reconstruction of the sidewalks by allowing access to abutters’ land during construction.

Although these easements entail no transfers of land from private owners to the Town, any use of the Town’s eminent-domain powers requires an affirmative 2/3 vote of Town Meeting. Opponents mustered roughly half of the votes they would have needed to defeat the measure.

According to a fact sheet from the Town’s planning department, failure to authorize these easements would mean that “some sidewalks would not be replaced” and the Town would investigate alternative construction methods that do not require the easements for some segments. It would not, however, stop the road section of the project.

Nonetheless, opponents repeatedly called on Town Meeting to reject the motion as a way of stopping the rebuild. In the course of debate, opponents argued that

  • the easements would cost the Town too much money. However, according to the Town, the costs would be 100% reimbursed by the State.
  • the Town had failed to specify what easements were needed. However, there was a property-by-property list provided in the Selectmen’s Report.
  • the Selectmen were seeking authorization to begin the takings and even construction before MassDOT had even approved the project. However, the motion that was before Town Meeting specifically refers to “plans as approved at 25% by the Massachusetts Department of Transportation” and is contingent on that approval.
  • defeating the motion would block the entire plan. However, many speakers said that it would not have that effect.

The sidewalks themselves are on public property. However, the Town’s proposal listed more than 200 temporary, 3-year easements to allow access to abutting land during construction. There are also 6 permanent easements to permit modifications related to ramps to meet requirements of the Americans with Disabilities Act.

Such easements are routinely sought, and approved by Town Meeting, for sidewalk work. Nonetheless, Town Manager Brian Sullivan said that for some projects that do not involve federal funding the Town works less formally with abutters and does not always seek easements.

He said however that formally obtaining these rights is a requirement for the Town to get approximately $1M in federal funding for the sidewalks.

Ironically, had the opponents prevailed, the street design to which they object would have been completed anyway. Only the sidewalks would have been affected.

Resources:

The motion, which was adopted without modification, is printed on pages 26-27 of the Selectmen’s Report. However, the online version does not include the lengthy appendix detailing all of the easements that have been identified for the sidewalk portion of the project.

Before the vote, the Town distributed this one-page fact sheet explaining easements in general and this request in particular.

Here are some photos of the sidewalks in question.

Dan Dunn has posted an abbreviated account of the debate on this article at his blog. (It is Article 7, and begins a little bit past the halfway point in his post.) Copying Dan’s practice on his blog, my own personal comments follow below in red.

Last year I wrote a column in the Arlington Advocate gently suggesting that opponents should revise some of their demands in light of changes and facts about the project. I began as follows:

I have met many of the critics of the plan to redesign Mass. Ave. and know they want what is best for Arlington.

Two years later, this spiteful vote would have denied pedestrians and businesses a new sidewalk (while, ironically, allowing bicycles first-class renovations).

Opponents have crossed the line from critics to fringe. Sadly I can no longer say that they care about what is best for the town.

Their repeated assertion of things that are simply untrue shows that they have allowed their passion to overwhelm their judgment.

Reasonable people may differ about the proposed design, and all may be fair in love and war. However, with this vote, which would not have affected the road design they dislike, opponents have declared that war against my neighborhood.

How can they justify putting businesses through the disruption of construction while delivering anything less than new sidewalks to bring customers to their doors? How can they ask people in wheelchairs and walkers to accept decrepit and dangerous conditions—needlessly, to make some kind of statement?

This is a harsh judgment but one that reflects a regrettable reality. It gives me no pleasure to write these words.

I hope at least some of the 32 Town Meeting members who voted to block this authorization will, in time, be glad they did not prevail.

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9 comments so far

  1. greg on

    What do you make of Mr. Berger asking the DPW director if any money had been set aside for litigation costs? I hate to think this way, but it sounded like a veiled threat after his arguement was rebuffed, deflected and disarmed.

    • Adam Auster on

      Greg, I took this the way that Steve (in the comment below) suggests, not as a personal threat. But no profit in speculating, I am sure Mr. Berger will let us know his plans soon enough.

      I do know that, contrary to myth, frivolous lawsuits are much easier to defend against than to prosecute.

      Furthermore, the Town has a capable attorney on staff, but anyone suing the Town must pay by the hour. And the vote by Town Meeting expressly authorizes eminent domain and further protects the Town.

      Steve and other commenters might note that you can thread comments here if you click the “reply” link that is immediate below the post you’d like to reply to. Not terribly clear on its face, unfortunately.

  2. Steve on

    I think Mr Berger was referencing litigation in terms of the easements. If a homeowner refused and the town tried to take them through eminent domain and it ended up in court that was what he was referring to. The chances are probably small but it could happen.

    Also maybe it was announced before and I just missed it but I was surprised that the 100-200 grand for the easements is going to be funded through the state. This seemed to be new information.. again I may I am wrong and I just missed it.

    Also It was never really clear how the easements would affect the project. The project is only at 25% mark however the sidewalks are part of the current designs. If the mass ave project was stopped for other reasons then right now there is no plan to redo the sidewalks which would be a separate project that for obvious reasons is not even on the anyone’s radar.

    Further if the easements did not pass then the design for the mass ave project would have to be altered, which it could.

    The question is would this be enough for Mass dot to put the brakes on the project and I think that was a bit of an open ended question… maybe it would not have had any affect on the status of the project just the designs but then again maybe it would. In any case I think it was a bit disingenuous of the supports to say on the one hand the sidewalks are part of the project and then on the other hand to say that that it would not affect the outcome of the project.

    Personally my biggest problem with the article was with eminent domain takings. Let me make it clear I am not saying that eminent domain taking would have taken place considering the amount of land involved but there is always the possibility and if a land owner wants to give up some of their property then that is fine but the town should not be able to do it by eminent domain…again I understand right now no one is is proposing taking land by eminent domain but again the possibility exists and that is a problem for me.

    • Adam Auster on

      Steve, I do not completely understand your point about eminent domain, but I gather you are not entirely comfortable with the takings power.

      I think that is an appropriate feeling: it’s a pretty big power tool and there is a reason why we require Town Meeting to authorize every one of these with a 2/3 vote.

      Still I’d like to point out three things.

      First, this is about as benign a use of eminent domain as there could be. In fact, no land would be transferred to the Town under the program, according to the DPW Director. This isn’t Kelo. It’s just about easements.

      Second, I don’t recall anyone having these philosophical problems when we did this to improve sidewalks for the Dallin School last year. Slightly broader authority granted there, actually, though I don’t know if we used it.

      Finally, as the Town Manager said, the state and Federal governments require these easements as a condition of funding, though they may not be otherwise necessary. He says there’s a million dollars at stake. Also, the sidewalks need to be fixed.

      Anyone want to pass up a million dollars and hike the property tax instead? Me neither.

      • Steve on

        Adam,

        Thanks for the note about the reply button..It was actually right in front of me and I just missed it.

        I can’t recall if any philosophical debate about eminent domain came up last year in regard to Dallin School or not and this is just my own personal feelings but yes you are correct my issue is with the taking power.

        I probably should have been more clear but I did try to make the point that this is as you say a very benign use of eminent domain, if it is even going to be invoked which it probably won’t be considering the amount of land involved but you never know.

        Even though there is not a “legal” transfer of land, ie the land owner’s keep the land in their name, there is going to be some transfer of land.. 6 permanent easements to build some of the ramps and a couple hundred temp easements to do the construction.

        Again even though it is benign and I don’t believe the land owners will miss the small amount taken and even though in a “legal” sense the land will not be “transferred” the land will be taken and used by the town for the ramps/sidewalk and the landowner will lose the right to that land or will permanently lose that land.

        One way to look at this is if after 5 yrs the landowner wants that small piece of land back will they be able to dig up sidewalk/ramp and reclaim that land?? I don’t think they will be able to.

        So if the landowner agrees to this then of course there is no problem..there is an agreement and if the landowner changes their mind then they are out of luck ie..it is between them and the town.

        But if the landowner refuses give up their land then the town could take the land by eminent domain and that is a different story.

        Again let me be perfectly clear I don’t think any landowner will refuse and I don’t think the town would take it that far but again you never know.

        So on principle I am against the eminent domain part, although it is begin there is a slippery slope we need to be careful of.

        Also for the temporary easements it may sound more benign than the permanent ones but I am fairly certain that with the construction of McClellen park some of the neighbors did have some issues with the construction. I know these are different projects but you never know how a landowner is going to feel about the construction.

        So again I am not trying to make a big issue out of this and I may be totally wrong but it makes me uneasy when we talk of eminent domain or it is part of a warrant article even if it is benign.

        Also it is my understanding that the 1 million is part of the overall project..it is not a separate project or separate funding. The money for the easements are separate funding. So we really cannot talk about 1 million in isolation it is all part of the corridor project. Or am I wrong??

        • Adam Auster on

          Ultimately I am not equipped to argue about what sounds like a principled, if abstract, opposition to the whole idea of eminent domain.

          No taking should be done lightly, but Town Meeting does not seem to have a problem with it on the philosophical level that you do.

          Eminent domain is actually a kind of protection for property owners. It is expressly provided for in the U.S. Constitution and, I believe, serves a legitimate and useful purpose.

          For instance, it is used to clear title on degraded and abandoned industrial sites so that they can be cleaned up and redeveloped.

          In the instant proceeding, I doubt there would even be sidewalks—or a Mass. Ave. to dispute—without state authority to take property for legitimate public purpose.

  3. dr2chase on

    Are you sure it’s not just a tribal thing? Bicycles=eco-freak DFHs / lycra-sausage-people=Not People Like Us.

    Because, after all, Serious People don’t ride bicycles. People with Real Jobs don’t ride bicycles. People who Care About Their Families don’t ride bicycles.

  4. Paul Schlichtman on

    The total area of the permanent easements, to allow for the sidewalk to extend onto private property, is a whopping 128 square feet. This is divided among six property owners, and the impact to an individual property owner is as little as five square feet.

    Considering that two linear miles of sidewalks requires a total 0f 128 square feet, an average of 62 square feet per mile of sidewalk, it all seems to be very miniscule. Go figure.

    • Steve on

      Interesting way to look at it.. when you compare the total amount of sidewalk are being reconstructed vs the amount of property being taken per individual property owner then yes it is minuscule.

      However, is this an appropriate comparison??

      Consider that for many properties yard space.. especially for front/side yard’s/Driveway’s.. in East Arlington is at a premium and I am not so sure how minuscule it actually is??

      It would be more helpful to compare the amount of space that will be needed from the individual property with the amount of front/side yard space an individual property owner has and in that comparison I would bet it is more significant than one would think.

      However without looking at the actual numbers..which I have not done then it is really hard to say how minuscule it is and in any case that is up to the individual property owner…their own preference if they rather have the sidewalks or the land..to make that judgment.


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