WINCHESTER - After not one, not two, not three, but four hours of debate, Town Meeting finally passed Article 9 (with amendments below), which gives the Select Board the authority to spend up to $5.5M to acquire the parcel of land at the corner of Washington and Swanton Street.

The meeting actually started debating the article on Monday night, but needed the entirety of Thursday to come to a decision. It eventually turned into something of a rollercoaster, with ups and downs, twists and turns, motions and amendments and then amendments to amendments. By the end, did everyone even know exactly what they were voting?

Debate on night two centered on five questions: feasibility, the town’s legal risk, the town’s financial risk, the appraisal process, and environmental issues. All the questions were answered, though not to everyone’s satisfaction.

Town Meeting member Heidi Deleo posed those five questions and Town Planner Brian Szekely, the Select Board, Special Land Counsel Richard Bowen, and Town Counsel Mina Makarious provided the answers.

To the question about a feasibility study, Szekely said the town didn’t perform one based on the new evaluation. Later, Select Board member Michael Bettencourt added how the town and Woburn developer Bryan Melanson were planning to work together to develop the lot after he purchased it. However, things fell apart (possibly due to COVID) and he wound up selling the property to the current owners.

To the question of the town’s legal risk should they take the property through eminent domain, Bowen said the process required a Town Meeting vote, the Select Board to issue an Order of Taking, and the Select Board to issue a Notice of Taking to the property owners (as listed on the Register of Deeds). At that point, the town officially owns the property.

Bowen said the land owners then have two choices: accept the town’s “fair market value” payment or challenge the taking in court. The owners have three years to decide. The special land counsel said if they challenge the taking, it’s typically a jury trial and they typically challenge either the amount offered or the reason for the taking.

He assured Town Meeting that using the property for affordable housing was considered a “proper purpose” for the taking. He added how it takes about one-and-a-half to three years to get to trial after a challenge; therefore, it the owners waited the full three years to start, a decision could come as late as five years from now.

Bowen also pointed to current litigation between the owners and another party, but said that wouldn’t affect the town’s Order of Taking.

When asked if the town could get sued by someone else over the taking (i.e. someone claiming to be the real owner of the property), Bowen flatly stated that anyone can get sued by anyone else. He noted how the town must go by who the registered owner is at the Registry of Deeds.

Speaking to both the financial and environmental risk, Select Board Chair Susan Verdicchio said the town hired a consultant who said the town could recoup its purchasing price even if a developer creates a rental project where all the units count toward the town’s Subsidized Housing Index (meaning 25 percent must be affordable while the rest can be market rate) in a building only two or three stories high.

She added the town would reconvene with the same consultant if the article passed (which it did) to see about mixed-income to help the board frame the upcoming RFP.

“Ideally, we’d like to recover the full cost,” Verdicchio stated. “To be fair, fair market value combined with an affordable housing project means we may not recover the entire amount.”

She did add remaining in safe harbor, which the town will lose in March, was a benefit to passing this article (even though it’s unlikely any permits get pulled by then, the town can petition the Department of Housing and Community Development to consider how far its moving on this project and the Waterfield lot project).

As for the environmental risk, Verdicchio said it’s been well-studied. Makarious added, in his role as town counsel, the town did not engage an expert to study the area. He said that is up to the owner, but the town could review any study conducted.

Town counsel also noted the site housed a former gas station going back to the late 90s, but said it was cleaned up to the proper standards. He admitted some levels of petroleum still existed as of August 2020 but were dissipating.

“Simply owning (the property) doesn’t require further work,” he stated, adding the town would have to pass all this information onto any future buyer.

To the question of the appraisal process, appraiser Mark Reenstierna said he first appraised the property back in 2020. He said the property was zoned GB1, commercial only. When he found out the current owners paid $3M, he felt that matched his appraisal. However, he did not get to speak to the owners.

Upon speaking to them later (and the seller of the property), he discovered they paid more, as they intended to use it (or sell it) for affordable housing. Therefore, knowing that, he raised his appraisal amount accordingly.

Indefinite postponement

On Monday, some Town Meeting members attempted to indefinitely postpone the article. It failed. On Thursday, they tried it again. It failed again.

Deleo made the motion to postpone, but originally wanted to come back to the issue in a month. Town Moderator Heather von Mering shot that request down and told her options included indefinite postponement, indefinite postponement to a special Town Meeting as soon as possible or indefinite postponement to a time certain (the last order of business at this Town Meeting).

Deleo first chose indefinite postponement to a special Town Meeting, then changed her mind and made a motion to simply indefinitely postpone the article (similar to Monday’s motion). While the Finance Committee recommended favorable action on her motion, to gather more information, the Select Board recommended unfavorable action.

Bettencourt, pushing for passage of the original article as written, said his board identified this parcel for affordable housing. He even stated several years ago, had the Affordable Housing Trust Fund existed at the time, his board would have attempted to purchase the property then.

“We looked at different configurations on how to get units there,” he told Town Meeting, “and we knew it could be valid.”

He said his board heard from developers that $5M was in a legitimate price range. He also pointed out how the town received $6.8M from the American Rescue Plan Act it could use for affordable housing, not to mention the $1M in the Affordable Housing Trust Fund, money in the Select Board’s Housing Fund, and the money State Representative Michael Day said he earmarked for Winchester’s Affordable Housing Trust Fund.

“We have more than enough,” he stressed.

Bettencourt added postponing this article won’t lead to the town producing another feasibility study.

To a question of whether a legal challenge would prevent the town from developing the property, the special land counsel said once it issues the Order of Taking, the property belongs to the town and it can do whatever it wants.

In the end, indefinite postpone failed again, this time 42-118.

Amendments

As debate dragged on, Town Meeting member Maureen Meister brought forward two amendments: one forced the Select Board to return to Town Meeting before they sell the property (assuming they obtain it) and the second stated it must be developed as a rental unit project with 25 percent of said units deed restricted so all the units count toward the town’s Subsidized Housing Index.

The Select Board recommended favorable action on both amendments, though member Mariano Goluboff voted against the first amendment believing it could hamper the town’s ability to sell the property if they need Town Meeting approval first.

The Select Board also offered a “friendly amendment,” through the chair, to Meister’s second amendment that would allow legal counsel to provide an opinion on the use of eminent domain and that the purchase price is a threshold term of the evaluation criteria of the RFP.

Both amendments passed, as did the main motion, 116-39 (meeting the two-thirds threshold).

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