Endean mansion fire photos (Page slow to load.)

The yellow house

Jan. 18, 2002

Judge asks for more speed in Toll hearing

By Tom Glynn
Staff writer

A judge is urging the conservation commission "to conclude the hearing as expeditiously as possible" on Toll Brothers’ plan to build 197 homes on the former Bird estate.

Judge Robert Mulligan issued the brief order in Norfolk Superior Court last month after reviewing a complaint from the developer that the commission’s hearing has gone on for eight months so far.

The next and perhaps final session of the hearing is scheduled for 8:30 p.m. Jan. 9 in Town Hall.

Toll told the court that it is "disappointed" that the hearing process "has taken much longer than it ought to take." The commission, because of its busy schedule, has divided the hearing into many brief sessions beginning last spring, according to Toll.

For example, company executives brought in from out of state did not get a chance to present their testimony because of the scheduling, Toll told the court.

The hearing has gone on so long that information presented early in the process has either been forgotten or misplaced by the commission, Toll told the court.

With jurisdiction over wetland issues, the conservation commission is the last town board whose approval is needed for the development on the shore of Bird Pond.

The planning board gave its assent in April after a judge found that it had acted in bad faith in initially rejecting Toll’s application.

In that case, the judge awarded Toll costs and opened the door for a hefty claim for damages. But Toll did not ask for costs or seek damages from the town and individual members in return for the planning board’s approval of the subdivision.

At the time, Toll attorneys requested planning board members to ask other town officials to move quickly on the remaining approvals.

In recent correspondence in the conservation commission process, a Toll environmental consultant responds to concerns raised in the hearing. Water in a neighbor’s cellar does not come from the subdivision site, Ann Marton of LEC consultants assured the commission. And apparatus extinguishing a brush fire damaged only buckthorn, not wetlands, she wrote.

In the suit in which Judge Mulligan issued his hurry-up order, Toll and the town are on the same side. The case was brought by a Norwood resident and others challenging the conservation commission’s earlier conditional approval of the Toll plan.

As directed by the court in that case last spring, the conservation commission’s hearing is focused on amending its earlier conditions to coincide with the agreement reached between Toll and the planning board.

April 6, 2001

Toll, town settle

By Tom Glynn
Staff writer

The planning board is scheduled to approve the 197-lot Toll Brothers subdivision on the Endean estate next week.

The approval will follow an agreement reached last week between the board and the developer in which Toll pledges not to seek costs or damages from the town, provided the subdivision moves forward.

In December, a Land Court judge ruled that the board acted in bad faith in rejecting Toll’s plan in 1997. The court ordered the town to reimburse Toll for its costs, estimated to run well into the six figures.

In addition, the "bad faith" ruling raised the possibility that Toll could seek hefty damages from the town.

In the document signed last week, the planning board agrees to approve the plan next Thursday. Toll agrees that the board’s vote does not become final until the Land Court ruling is amended to eliminate "bad faith" and reimbursement of costs.

Lawyers for the planning board and Toll have been discussing the settlement in private for months. Substantive discussion on the subdivision plan also has taken place away from the public.

After one last go-around between the lawyers, the agreement was accepted by both parties in an open session that began after midnight last Friday morning.

The only significant statements in the public session came from Toll lawyer David Apfel who spent several minutes stating and restating for the stenographic record that Toll neither had nor has any intention of seeking individual damages from members of the 1997 planning board or members of their families.

"We have no interest in suing … any individual member and we will not," Apfel said.

For individual members the agreement is "an utter and complete release from the beginning of the world to the end of the world," Apfel said.

Before construction can begin, Toll still needs an order of conditions from the Walpole Conservation Commission and approval from the state Department of Environmental Protection. The ConCom hearing is tentatively scheduled to begin on May 30.

In his December ruling, Judge Mark Green said the planning board’s 1997 rejection of the subdivision was motivated by members’ desire to maintain an appropriate setting for the Endean mansion. While that responsibility rested with the state, the planning board knowingly misused its own authority on behalf of the mansion, the judge found. (The mansion was destroyed by fire last November.)

Under orders from Town Counsel, planning board members have not discussed the case publicly. The agreement signed by the board last week further limits public discussion.

The five planning board members agreed that they cannot express any view or opinion intended to negatively influence the conservation commission, state DEP, the Walpole Sewer and Water Commission or any other Walpole or state permitting authority.

The members also agreed that if asked by Toll, they will tell the conservation commission and the DEP that the new plan is "more sensitive to wetlands" than the 1997 version.

The Endean subdivision is to be built under the town’s cluster zoning ordinance. The new plan provides more consolidated open space and has less impact on wetlands. There is more buffer space between the homes and Bird Pond.

The revisions were based on planning board members’ comments to the developers in closed meetings in January.

In the agreement they signed last week, planning board members note they rejected all but one alternative for the revised subdivision as outlined in a communication between lawyers Jan. 19. The alternatives were first shown to the public the following week.

In public session through the winter, Toll representatives maintained that they were going along with the planning board to be good neighbors.

Three weeks ago, however, a Toll representative disclosed that the developers had been asked by the state DEP to revise the plans because of wetland concerns. In open session, planning board members indicated the DEP’s request was news to them.

The agreement envisions that during the next two years, Land Court will vacate its award of costs and finding of bad faith; that Omega, the owner of the former Bird estate, will drop its suit against the town and that the conservation commission and DEP will authorize the subdivision.

If all goes as envisioned, the town will drop its appeal of the Land Court ruling.

Toll agrees to build no more than 45 homes a year and to complete all roadways within eight years. (The houses will not be counted under the town’s growth management bylaw, which limits the total number of houses that can be built in a given year.)

The mansion site is to remain open space.

March 30, 2001

Toll hearing nears an end

By Tom Glynn
Staff writer

Toll Brothers is scheduled to present its plans for the 197-house Endean subdivision and answer questions from the public at a planning board hearing at 7:30 tonight (March 29) in Town Hall.

At the request of the planning board, Toll representatives agreed last week to make tonight’s session as close to a typical public hearing as possible.

The session could be the last before the board makes its decision on plans first submitted in 1996.

A Land Court judge told the planning board in December to approve the subdivision after determining the panel acted in bad faith in denying Toll’s application in 1997. Toll extended the board’s deadline for compliance until early April, but there was no discussion at last week’s session about a further extension.

In advance of tonight’s hearing, Toll and town engineers were to work out the last of the details on the revised plans for the former Bird estate between Mylod Street and Bird Pond. Lawyers for both parties were to work out a settlement of the legal issues.

Planning board members last week again stressed that a legal settlement is essential for wrapping up deliberations.

Under the Land Court order, the town is to reimburse Toll for its costs through the end of last year. A Toll attorney has put that number in the six figures and maintained that the court decision opens the town to damage claims. Toll would be willing to forego money if the subdivision goes forward, the attorney has indicated.

Discussions between the parties have been taking place in private. The outcome of the meetings could affect whether tonight’s session goes forward as envisioned by Toll and the board last week.

The tone of last week’s meeting between the planning board and Toll was testier than usual, with board members scolding Toll attorneys for not bringing an engineer along.

Toll Atty. David Apfel responded that it had been agreed in earlier meetings that the engineering details were to be worked out between the engineers, who would report when they were done.

Town Engineer Margaret Walker said she did not bring her folder of engineering details to the meeting.

Noting the board’s closed sessions, Apfel said he presumed Walker has been keeping the panel informed on progress.

Planning board Chairman John Conroy responded, "We do not discuss engineering plans in executive session."

It is "bizarre" for there to be a public hearing in which the developer does not roll out engineering plans, he said.

"I would expect a full presentation with a full back-up," Conroy told Apfel, speaking about tonight’s meeting.

Town Counsel Judith Cutler mentioned that planning board members participated with Toll in making revisions to the original plan. Such participation apparently took place in January, outside of posted meetings.

Cutler told Apfel to be prepared tonight to discuss everything about the plan going back to 1996. The public is entitled to a full discussion, she said.

Apfel said he found that position "somewhat disingenuous," noting that "people" on the planning board have been saying on the record "from Day 1" that they are prepared to approve the revised plan.

In its Dec 15 order, the Land Court found that the planning board misused its authority by rejecting the plan in an effort to maintain a suitable setting for Endean, the ancestral Bird mansion. The vacant building was destroyed by fire in November.

March 9, 2001

Toll, town stake out positions

March 2, 2001

Toll suit prompts debate

By Tom Glynn
Staff writer

On Feb. 12, in a closed meeting between selectmen and the planning board, Selectman Alan Rockwood said he was leaning toward going along with a judge’s order in the Toll Brothers case.

Rockwood asked Town Counsel Judith Cutler whether the town had put up the best possible defense. In December a Land Court judge came down hard against the town, ruling that the planning board had acted in bad faith in rejecting Toll’s plans for 198 homes on the former Endean estate.

According to the minutes of the closed meeting between the two boards Feb. 12, Atty. Cutler responded to Rockwood, "We never put up a defense.

"We were told not to. There were no funds."

Planning Board Chairman John Conroy then asked Cutler who told her not to put up a defense. "Ms. Cutler did not answer Mr. Conroy," the minutes state.

Four days later, the planning board wrote the selectmen to demand under the Freedom of Information Act the release of four years of executive session minutes and correspondence by that board pertaining to Toll and the estate.

In its December decision, the court orders the planning board to approve the Endean subdivision by March 12. An attorney for Toll told the board last month that the town potentially is liable for sizeable damages because of the court’s finding that its rights to a fair hearing had been violated.

In supporting the planning board’s request at this week’s selectmen meeting, Selectman Judith Conroy called for release of the minutes.

"It is important this board acknowledge the actions it has taken … and why the planning board is in the position it is in, including as individuals," Conroy said to her colleagues.

Conroy is married to John Conroy, the planning board chairman.

Selectman Ron Mariani called the unilateral release of the executive session minutes by the planning board a ploy to place blame for the town’s defeat in the Toll case on selectmen and Town Counsel.

Mariani noted that the town spent $100,000 in defending the planning board’s rejection of the subdivision.

In addition, the minutes of the Feb. 12 meeting show that in January, the town incurred a further $8,000 to $10,000 in legal costs because of the decision to appeal the Land Court ruling.

Selectmen Mariani, William Ryan and Alan Rockwood all indicated they believe the release of the Feb. 12 minutes by the planning board runs counter to that board’s policy of secrecy in its Toll deliberations. So does the request to release four years of selectmen’s executive session minutes, they said.

But Selectman Conroy said the planning board’s request covers the time up to Dec. 15, when the initial case concluded. Minutes and documents related solely to a concluded case should be released, she said.

Mariani said that assertion runs counter to opinions given to both boards by Town Counsel Cutler. He questioned whether the planning board had sought Cutler’s advice before releasing the Feb. 12 minutes and demanding the selectmen’s records.

In a letter to Cutler the same date as that to the selectmen, the planning board expressed "great shock and disbelief at our February 12, 2001 meeting that you and your firm were directed by the town not to defend the Planning Board suit against Toll Bros. in Land Court.

"The Planning Board, as an elected board and individually, is the client, not the Board of Selectmen or the Town Administrator," the letter said.

Selectman Conroy got no support Tuesday night from her board on a call for an outside lawyer to investigate Atty. Cutler’s handling of the case.

In the end, selectmen voted unanimously to release the material sought by the planning board, provided Atty. Cutler agrees that action is best for the town.

Feb. 2, 2001

Toll lawyer outlines what's at stake

By Tom Glynn
Staff writer

An attorney for Toll Brothers last week outlined for planning board members what the town has at risk following a December Land Court ruling in favor of the developers.

In that ruling, Land Court Judge Mark Green ordered the town to pay Toll’s costs after finding that the planning board acted in bad faith in rejecting a plan for 198 homes on the former Bird Endean estate. The judge gave the board until March to approve the subdivision plan; the town is appealing.

So far, Toll Brothers has costs of more than $400,000 and a strong argument can be made for attorneys’ fees of $500,000 on top of that, Atty. David Apfel said. Those amounts would have to be paid by the town under the December ruling, he said. Further, Toll could bring action for several million dollars in damages, he said.

"But we are prepared to give up all of that," he said, explaining that Toll wants "to make peace."

Apfel gave the dollar estimates at a planning board public hearing last Thursday after two board members indicated they wanted a legal settlement simultaneous with moving ahead on revised subdivision plans.

Apfel told the members Toll is willing to forgo the award of costs in return for support of a revised plan by the board. He promised to work for a legal settlement by this week, but made no commitment that he would agree to seek modification of Judge Green’s ruling by eliminating the finding of bad faith.

At the end of the court-ordered hearing, the board backed Toll’s proposal to move ahead with a modification of the original plan. The new plan would reduce the number of homes by one, consolidate common green space, shorten cul-de-sacs and provide an additional 100 feet of protected land open to the public along Bird Pond.

The planning board had reviewed revisions to the original plan during an earlier closed session some days before last week’s hearing. A Toll environmental consultant, said the version that’s moving forward incorporates responses from the board.

The revised plan leaves open the space occupied by the Endean Mansion, destroyed by fire in November. The developers are willing to make the site a park and place a plaque there, Apfel said.

Judge Green found that the real reason the planning board rejected the Toll plan in 1997 was to provide better treatment for the mansion. But, the judge said, board members knew they did not have the authority to turn down the application for that reason. None of the reasons given for rejection stand up, the judge said.

Speaking at the public hearing last Thursday, Kevin Schofield, a former conservation commission member, suggested that the board consider declining to agree with a revised plan. If Toll moved ahead with the original version, Schofield said, it would run into trouble with the state because the plan does not show wetlands later identified on the property.

The revised plan, Schofield said, is an improvement. But Toll is using it to make "an end run," he said.

The revised plan addresses one of the reasons the board gave for rejecting the original. Presented under the town’s cluster zoning bylaw, the proposed open space did not measure up in the way it set aside land for common open space, the board found in 1997.

Judge Green said in his ruling that he disagreed on that point, but did not elaborate. Instead, he noted that the board had given a special permit under the cluster provision before turning down the development in the subdivision phase of its deliberations.

While a board had considerable discretion in the special permit process, the law governing subdivision approval is more confining, the judge said. With the special permit issued, the board did not have grounds to reject the subdivision, the judge said.

At last week’s planning board hearing, Chairman Jack Conroy said the permit request was taken up before the subdivision application at the request of the developers.

The board will not make that mistake again, Conroy said.

Jan. 18, 2001

Town appeals Toll decision

By Tom Glynn
and Brian DeCesare

The town is appealing a Land Court decision that overturned the planning board’s rejection of Toll Brothers’ effort to build 198 homes on the former Bird Endean estate.

There was no immediate response from the developers on what effect the appeal will have on their offer to bring the plan closer in line with the town’s wishes.

As interpreted by both Town Counsel and an attorney for Toll, the Dec. 15 Land Court order pretty much told the town to approve the plans as submitted.

In his decision, Judge Mark Green threw out every reason the planning board gave for rejecting the Toll application in 1997. The board’s real concern, the judge found, was the preservation of the Endean mansion, a role that was beyond its authority.

Finding that the board had acted in bad faith, Judge Green ordered the town to pay Toll’s costs in the suit.

Some selectmen appeared unaware as late as Tuesday night that the town filed the appeal.

Before the start of the regular Tuesday night board meeting, Chairman William Ryan and Judith Conroy told a reporter that did not know whether the appeal had been filed.

During the meeting, in a discussion on how much money has been spent so far on the Toll Brothers case, Selectman Ron Mariani said the amount will grow now that an appeal has been filed.

At that point, Selectman Joanne Muti asked Town Administrator James Merriam whether the appeal was filed. Merriam responded it had been filed Friday afternoon.

Friday was the last day an appeal could be filed.

Noting the town already has spent more than $100,000 in legal fees connected to the Toll Brothers plan, Mariani asked Merriam to supply the board with frequent updates on how much is being spent on legal fees in the case.

Two weeks ago, at the insistence of Town Counsel, the public and press were ordered out of a meeting between selectmen and the planning board on whether to file the appeal. While the Toll Brothers suit is against the planning board, the decision on whether to take on the costs of an appeal belongs to the selectmen.

According to most accounts, the selectmen in the closed session agreed to leave the decision on an appeal up to the planning board.

In his order Judge Green told the planning board to hold a public hearing no later than last week "to reconsider (Toll’s) application for subdivision approval."

At the start of the hearing Thursday night, an attorney for Toll Brothers said he had met privately with Town Counsel Judith Cutler and two members of the planning board to discuss revisions of the plans.

"We are not here to pound on our chests and demand the planning board approve 198 lots," Toll Atty. David Apfel said.

"My request was that Town Counsel share the plans" with the planning board. Some members of the planning board said they had not seen the modifications.

Toll’s intent, Apfel said, is to "take the victory and use it as an opportunity to make peace with the planning board and the town of Walpole."

As Apfel appeared to be about to talk publicly about the modifications previously discussed privately with her and two planning board members, Town Counsel Cutler stopped him.

"Until we get directions from the court," Cutler said, the planning board would limit the discussion to the 198-lot plan. "We have to be very careful here…"

Apfel suggested the full board review the modifications in executive session "and present them publicly with a full opportunity for all members of the community to react to the plans. The board agreed to put Toll Brothers on its agenda for Jan. 25.

Apfel noted that the Land Court decision made the board’s 1997 rejection go away. "It disappeared. It evaporated."

According to Cutler, an appeal would automatically put Judge Green’s order on hold. Toll and the town could then decide to continue the hearing on development plans, she said.

While not saying whether or not she would file an appeal by the next day’s deadline, Town Counsel Cutler said the town "is open and would encourage a settlement."

After Toll’s attorney was seated, it was the public’s turn to speak. Cutler said the planning board must limit the public’s discussion to the two issues that Judge Green’s order leaves open – wetlands approval and the fate of the yellow house on the site.

To allow discussion beyond those issues, Cutler said, "risks contempt."

Kevin Schofield, a former conservation commission member, said a sizable piece of wetlands had not been discovered before the 198-plan was acted on. He said he is concerned that Judge Green only "saw snippets" before issuing his order.

As for the yellow house, Apfel said it is to be demolished. If the house is more than 100 years old, the historical commission will have to do a review before it can be demolished, commissioner Robert Boyd said.

Town Meeting Representative and site neighbor John Desmond indicated he wanted to talk about more than the yellow house and wetlands.

"Would I put you at risk if I give you my opinions?" he asked planning board Chairman John Conroy.

Cutler responded that while that decision was up to the chair, the board would be better off not permitting discussion beyond the two issues.

"We’re in a very precarious position," Conroy said. "I don’t want to do anything wrong."

Desmond said, "I feel very frustrated because I can’t express what I feel."

"I feel completely hemmed in," he said. "I bet a lot of people feel that way."

Judge rules for Toll Bros.

By Tom Glynn
Staff writer

Saying that the planning board knowingly exceeded its authority and acted in bad faith, a judge has ordered the board to rehear Toll Brothers’ application to build 198 homes on the former Bird Endean estate.

The decision last week by Land Court Judge Mark Green also orders the town to pay all of Toll Brothers’ legal fees in the suit brought after the its cluster subdivision plan was rejected by the planning board three years ago.

After a two-hour closed meeting with the town’s lawyer Tuesday night, planning board members declined to tell an attorney trying to settle the case for Toll Brothers whether they intend to appeal the Land Court decision.

Philip Macchi, the attorney, said in a letter to both the planning board and selectmen that "it has been and continues to be the prime objective of Toll Brothers to work with the Town in an effort to address the subdivision in a reasonable fashion."

Macchi asked for a meeting with both boards in which, he said, "I anticipate that we may be able to allay some of your concerns." At the Tuesday night planning board meeting, Macchi noted that it is up to that board to act on the judge’s decision and to the selectmen to decide on legal expenses.

Rather than schedule a meeting, Macchi and the planning board agreed to seek further guidelines from the Land Court.

"We have to be careful right now, even more careful than before," planning board Chairman Jack Conroy said, declining to comment further on the court decision or what happens next.

At the regularly scheduled selectmen’s meeting down the corridor Tuesday night, Selectman Ronald Mariani said he was sure the word "appeal" was being used at the planning board session.

But an appeal "would be a waste of money," Mariani said. "This wasn’t a close call here," he said. "It was a slam dunk against the Town of Walpole."

Selectman Judith Conroy, however, said she would like her board to support the planning board if it chooses to appeal.

Macchi said it’s possible a modified version of the 198-home plan could be submitted that would address some of the issues raised by the board in the past. He mentioned alternatives for 20 or so fewer houses.

In his 25-page decision, Judge Green threw out all seven reasons the planning board gave for rejecting Toll in 1997.

The real motivations for the rejection, the judge said, were the board’s wishes to protect the Endean mansion and to reduce the proposed number of homes.

"…Where a board abuses its discretion to find invalid reasons to deny a plan, in order to effect a purpose or objective arising from reasons unstated in the board’s decision and known to the board to be beyond the board’s authority, I conclude that a finding of bad faith is warranted," the judge wrote.

As part of his review, the judge viewed videotapes of planning board hearings.

"The videotapes reveal that the board’s principal concern with Toll’s proposal was its potential effect on the Bird mansion and the degree of commitment Toll was willing to make to preserve the mansion," the judge wrote. "A second significant concern, evident in the hearings but not in the board’s decision, was the overall density of the project."

Under the law, protection for the mansion would have been decided by a state agency, Judge Green indicated. Long vacant, the mansion was destroyed by fire last month.

"The board was aware that preservation of the Bird mansion was not within their authority to address under the subdivision control law, and the board was also aware that Toll would be required to address the (Endean) topic incident to review of the project under the Massachusetts environmental policy act. The board nonetheless did not want to approve the 198-lot definitive plan unless and until it was satisfied with Toll’s plans for the Bird mansion," Green wrote.

The judge ordered the planning board to rehear the application within 30 days and to make a decision within 60 days after that.

Further, the court will retain jurisdiction "for any review of the board’s actions and proceedings following this remand that may be necessary."

Toll applied for the subdivision under the cluster zoning bylaw that allows houses to be built on smaller lots than usual, provided compensating, common open space is created.

A cluster subdivision requires two approvals from the planning board – a special permit and for a final, detailed plan.

In 1996, the board approved the special permit – but left open several issues that were to be worked out as part of the final plan.

In his analysis, Judge Green said three of the seven reasons the board gave for its rejection of the plan are based on a claim that provisions of the special permit were not met.

The three provisions the board said were not met were that the open space be as large and continuous as possible, each building be in harmony with natural features and that the overall plan preserve those features.

But, said the judge, requirements cannot be "exported" from the special permit process into the final plan review. And the record shows that the final plan complies with subdivision rules, the judge wrote, noting the board did not cite lack of compliance with any subdivision rule in rejecting the plan.

The planning board appeared to believe it did have the authority to export permit provisions to the plan review, even though it did not, the judge wrote. But the evidence suggests that a denial on the open space and harmony issues "would have constituted an abuse of the board’s discretion," the judge said.

In rejecting Toll’s application, the planning board said the proposed 198 homes were more than would be permitted under a conventional subdivision, contrary to the bylaw.

The board reached that conclusion by subtracting a parcel that would be transferred to the conservation commission after the cluster subdivision was approved.

The judge noted that the parcel plainly would be available for home building if the cluster were not approved. The judge noted further that the town’s lawyer had told the planning board the same thing, "but the board disregarded its own counsel’s legally sound opinion."

Conditions in the special permit required Toll to get all approvals needed from other boards. In its rejection, the planning board said that was not done in three cases.

The zoning board had not granted a variance for "the yellow house" at the foot of Bird Drive. But Toll had told the planning board the ZBA was awaiting its action before making a decision, and the planning board appeared to accept that, the judge said. Further, Toll had said "on numerous occasions" it would tear the house down if the variance were denied, the judge wrote.

Similarly, the judge threw out the board’s contention that Toll failed to get a variance for the street next to the yellow house.

And it was "unreasonable" of the board to reject the plan on the grounds that opponents were appealing a conservation commission ruling to the state, the judge wrote. The board should have allowed conditional approval in that situation, he said.

"The tenor of the board’s discussion of Toll’s application, as appearing on the videotapes of the four meetings submitted in evidence, reveals a board opposed to the plan for reasons it knew to be beyond its authority to regulate, but nonetheless searching for a reason to deny the plan," the judge wrote.

"An applicant for subdivision approval is entitled at least to a planning board’s fair and impartial application of the subdivision control law and the local subdivision rules and regulations to the applicant’s proposal," the judge wrote.

"The board in its decision denied such treatment to Toll and, in so doing, acted in bad faith," he concluded.

Copyright 2007 The Walpole Times