As the end of the year rolls around it is time to consider annual appointments in town. One of the appointments the town’s leaders should give careful consideration to is that of town counsel.
Kopelman and Paige have represented the town for the past 22 years or so. Replacing a then controversial David Berman around 1982, the firm was a rather small operation. With only three municipal clients, Kopelman and Paige were promoting the idea of a firm that would basically concentrate on municipal law only. Since that time it has proven to be a successful strategy as Kopleman and Paige has now grown to the point where they represent more than 100 cities and towns. That number is over one third of the communities in the state.
Has that strategy been successful for Burlington? Do we have the same type of attention from a firm in which we were the second or third most important clients to now where we are simply one of the herd?
That question is debatable but there are other questions that should be examined more closely in determining whether or not we should continue to have them represent us. Those questions revolve primarily around the biggest issues the town has dealt with over the last 7 or 8 years. Quite frankly many of those issues have significant visible failures of counsel.
Take for instance the Sun deal. In that arrangement town meeting was told that Burlington would receive the state barn property on Cambridge Street as part of the deal. Here we are six or seven years later and we are told virtually nothing about what went wrong. Now we are told we need to pay for the land and it was not in the deal. Why is this? Who was conducting the negotiations? We had special counsel in Gloria Larson and Kopelman and Paige. Who told the town we were to receive the property and who was responsible for writing the contracts? Do they have mal practice insurance?
The chapter 40B snob zoning law has been a thorn in Burlington and the rest of the suburban communities side for years. We finally made the 10% threshold but one of the concerns of the town was that those affordable units would fall off in 15 years or when the financing ended. This has always been a primary complaint yet it took a single practitioner representing the Town of Wellesley to get this issue before the Massachusetts Supreme Court. The court ruled that as long as the developer had dense zoning that circumvented a towns zoning bylaw then those units had to remain as affordable. Why could a one-man law firm accomplish this yet a firm representing over a hundred communities could not? Has counsel taken steps to assure that our current properties remain affordable?
The military housing on South Bedford Street was acquired by the town partly as a result of the Trammel Crow deal. The town meeting was told by town counsel that the affordability of the housing would be protected by a covenant on the deed. Two years ago one of the units was almost foreclosed on and the affordability almost lost. We were then told it was the banks that were protected by covenant not the town.
The Sunrise project on Mall Road went before the Board of Appeals as a use variance. The building inspector had ruled against the developer yet the board of appeals over ruled him in favor of the developer. Why did town counsel allow this to happen? State law clearly prohibits use variances. Why wasn’t the building inspector’s opinion upheld and the developer referred to Town Meeting for a zoning change? Even more importantly, when the Selectmen met to discuss the appealing of the variance what were they told about counsel’s opinion?
One of the most egregious failures of counsel has been the land swap. Part of the deal was the town receiving of buildable lots behind the Grandview farm. After selling one of the lots last year for $500,000 we are now told that the lot is not buildable because of wetlands and the town will have to be an applicant before its own boards to rectify the situation. Are the other lots subject to the same problem? Who should have been responsible for the due diligence in the handling of such a complex land deal?
Three years ago the town was in negotiation for the Marion road conservation land adjacent to the Pine Haven cemetery. At the time the town was encouraged by management to hurry and acquire the site because it was in great demand. Yet after a substantial price was negotiated for the property and money appropriated by town meeting it became known that the title to the property was murky. Why wasn’t counsel doing this due diligence before a price was arrived at? Was the price lowered as a result?
At the same time we were being encouraged to acquire this land because of demand we were being told that we needed to give tax incentives to another deal in town because demand was so weak. Now two of those incentive deals are not in compliance yet we still have no resolution. What is counsels suggestion? Do we repeal the deal? Do we eliminate the tax break?
One of the more embarrassing results for town counsel was the infamous window at the high school. A teacher was denied a window in her office and subsequently took the town to court and won a $240,000 judgment. No negotiated common ground could have been found on this issue?
I will close on the issue in the police department. Over two years ago an officer was disciplined and demoted within the department. This issue has significant financial ramifications as well as morale and departmental tranquility importance. Yet here we are two years after the initial decision still without a final resolution.
These are but a few of the issues that counsel has had less than stellar performance on. In all of these cases the town has suffered financially and might have had a better result had we had a more attentive representative. Perhaps it is time to see if someone in the legal community might place more value on the relationship.
