Belmont Citizens ForumVol.1, No. 1 A Newsletter for Belmont Residents January 2000

Redesign of Belmont Center ProposedBy Jane Sherwin

Belmont's Traffic Advisory Committee (TAC) isdiscussing major changes in Belmont Center to makethe area more appealing to shoppers and safer forpedestrians. According to Committee Chair MarkPaolillo, these changes would give Belmont Centersome of the advantages of a mall without actuallyturning it into one.

Plans presented by traffic consultant CharlieKalauskas of the BSC Group call for widersidewalks, shorter crosswalks, and new landscapingas well as a larger parking lot behind the center onClaflin Street. New curb extensions at the comerswould encourage cars to slow down and make thearea a pleasant place to walk, shop, and linger.

If this project is successful, it is more likely thatsimilar improvements would be made in other partsof town, fulfilling the Traffic Committee's mission toincrease pedestrian safety, slow speeding cars, andreduce cut-through traffic.

Leonard Street

The proposed redesign would narrow LeonardStreet and create chokepoints, or "neck-downs," ateach crosswalk by extending the curbing out into thestreet at those points. This change dramaticallydecreases the distance pedestrians must go whencrossing the street.

A new crosswalk would extend from Frankie'sCatch of the Day to the triangle park in front ofBelmont Savings Bank and from there to the bank,making it easier for people to reach the train stationand the Town Hall. The wider and broader sidewalks

might even encourage people to walk to the centerand leave their cars behind.

Under the Railroad Bridge

There is also some interest in taming the free-for-all under the railroad bridge by limiting car turnsat the intersection of Concord, Channing, andLeonard during rush hours. Allowing only right turnsfrom Concord (near the Belmont Savings Bank) andfrom Channing might alleviate much of the confusionat that intersection. This move would increase thetraffic on surrounding residential streets, however.Cars approaching the railroad bridge on ChanningRoad, for example, would be shifted to AlexanderAvenue, resulting in an increase of approximately300 cars per hour on Alexander between Cross

Continued on Page 6

Table of Contents

Belmont Citizens Forum: Our Mission .2

Can Belmont Handle Hazardous Materials?...3

Why Have Citizens Gone to Court? 4

Building Moratorium Proposed for Alewife....8B o o k R e v i e w : T r e s p a s s i n g 9

Tough Times for Continuing CareC o m m u n i t i e s 1 1

What About the Townhouse Buydown? 12

The Belmont CitizensForum: Our MissionBy Lynne Polcari

To understand the mission statement of theBelmont Citizens Forum, one must go back to thedog days of August 1999, when a diverse group ofBelmont citizens, both yes and no voters in the Julyreferendum, came together. We were linked by alarge web of common friends, and, more importantly,by our dissatisfaction with the public processthroughout the McLean rezoning ordeal.

Our complaints were as varied as we were. Somewere upset by the process, the feeling that this hadbeen a "done deal" from day one. Others were upsetby the town leaders' general disdain for public input,by the name-calling and bullying that took place atpublic meetings. All of us were upset by theviolations of the Open Meeting Law. We believedthat if we accepted such disregard by government ona local level, we were endangering our rights ascitizens to fair and open participation in our greatdemocracy.

Regarding local zoning issues, many of usbelieved that the Town of Belmont was fully built-out and therefore immune to further development.But we soon learned that it was vulnerable. Besidesthe McLean and Alewife properties, there are olderhomes that can be torn down and replaced with largerones, vacant commercial lots that are being eyed bydevelopers, even some farmland that could be builton for the first time.

We asked ourselves, do we, as conscientiouscitizens, have the foresight to plan the kind ofdevelopment we want and discourage the kind wedon't? Are our zoning by-laws adequate with regardto height and bulk restrictions, setbacks, signage,wetland protection, and noise? How are we tocontrol the traffic? Can our streets be made safer forchildren and the elderly? Do we have a plan?

In the end, we agreed that things would bedifferent in the future. We would band together andcreate a citizens group, one that would serve as aforum in which all residents of the town couldunderstand and participate in the discussions thatwould affect our town. We believe that all theresidents of the town should have the information

they need to understand the various planning andenvironmental issues that lie ahead. As citizens, wemust be responsible for mapping out our future as acommunity, and not let it be defined for us by outsidepressures.

As a result, the Belmont Citizens Forum wasformally established as a nonprofit corporation inSeptember 1999. Our mission statement summarizesour goal of keeping Belmont the beautiful residentialcommunity we love, and remaining informed andactive as development pressure intensifies.

Lynne Polcari is a stockbroker and a mother of threein Belmont.

Belmont Citizens ForumStatement of Purpose

(a) To preserve and protect buildings, objects,open space, and districts in the town ofBelmont that have historical, architectural,environmental, or general cultural significance.

(b) To disseminate information about, andpromote interest in, the historical, architectural,environmental, and general cultural heritage ofthe Town of Belmont and its vicinity.

(c) To create public awareness and interest inthe issue of traffic and public safety as it relatesto Belmont and surrounding communities.

(d) To promote interest in the preservation andprotection of environmental resources.

(e) To educate the public and communityleaders about the environmental importance ofopen space and the necessity of continuingcommunity participation and oversight inproposed development projects.

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Is Belmont Prepared to Handle Hazardous Materials?By Lynne Polcari

The planned R&D construction on the McLeanproperty raises serious concerns for Belmontresidents. At present, there is no restriction on thetype of research that can be carried out in the facilityor the materials that may be used. As a result, we donot know what kind of hazardous materials and wastewill be handled, disposed of, and transported throughBelmont's residential neighborhoods.

Because federally defined biotechnology safetylevels 3 and 4 permit research on dangerous andinfectious organisms, such as the Ebola virus, andbecause we do not now have regulations to prohibitsuch research, we must act quickly. It is up to us toupdate our regulations and by-laws so that we caneffectively define the appropriate level of risk. Ourexisting regulations and by-laws are outdated andoffer little protection to the community.

Regulation or Self-Regulation?

Does the town have sufficient trained staff toinspect the on-site handling, storage, and disposal ofhazardous waste? Although federal and state lawsstipulate how hazardous materials should be handled,stored, and disposed of, industry is given discretionto regulate itself. We need look no further than thenearby communities of Woburn and Natick tounderstand that self-regulation does not always havethe best outcome.

What will it take to equip our police and firedepartments to handle an emergency without dangerto bystanders or to themselves? In communitiesacross the nation, local officials have adoptedevacuation plans and other emergency responseplans. Do our personnel have the training andresources to ensure the safety of Belmont's citizens?What will be the effect of these extra expenditures onthe final revenue realized from this development?

Other Towns* Experience

We can learn from other communities.Cambridge, which is experienced in dealing withindustrial hazards, has drawn up tight restrictionsgoverning the use, storage, and disposal of chemicals.

Having learned through experience not to rely onprivate companies, the city conducts its owninspections on the handling of chemicals. Needham,Williamstown, and Westfield have also protectedtheir citizens with careful restrictions. Needham'sregulations require the offending industry to notify,in writing, the town's Board of Health if anyuntoward incident occurs at the R&D site. Withoutsuch a provision, a town would remain ignorant ofmost accidents and misdeeds.

And what about Belmont? According to DonnaMoultrop, director of Belmont's Board of Health,these problems will soon be examined. She feels thatthe town's by-laws concerning hazardous materialneed reviewing and updating. In the meantime,McLean intends to go ahead with the R&D facility.Sadly, the town is in no position to provide properguidance or limits on what will become its largestuser of hazardous materials.

Belmont cannot allow research to be conductedwithout./zr.tf erecting proper safeguards. To dootherwise is to put at risk the peace of mind, if not thehealth and safety, of the people of Belmont.

You're invited

First Public MeetingThe Belmont Citizens ForumThe Forum is dedicated to improving the level of

public participation in town government. Come shareyour concerns about the future of our town.

How can we protect Belmont from over-development?Can we make our streets safer for pedestrians?

What's happening to Belmont Center?What's the status of the McLean Land Court case?

What should the town's priorities be?

All Saints' ChurchCommunity Room

17 Clark Street (at Common St.)Wednesday, February 9

7:30 - 9 PM(Snow date: February 16)

Why Have Belmont Citizens Gone to Court?By Nelson E. Bolen

The issue of the town referendum last July wasnot whether there should be any development of theland currently owned by the McLean Hospital. Mostpeople would probably agree that it is not possible, oreven desirable, to avoid development of that land.Instead, the basic issue was whether the citizensshould be offered a less massive development, withless negative impact upon the town, than was entailedin the plan negotiated by the McLean Land Use TaskForce and the Board of Selectmen.

Now a lawsuit in the Land Court seeks tooverturn the rezoning of the McLean property onseveral grounds. The most important issue is contractzoning. If the court agrees that the whole deal isillegal contract zoning, then we will have a chance toreach a new agreement that will truly protect thetown's interests. The previous zoning of the McLeanHospital land for single-family homes would bereinstated. If McLean Hospital still wants to changethat zoning, it must participate in new negotiationswith the town — negotiations that will follow thespirit and the letter of the law, preclude illegalcontract zoning under any guise, and involve ourcitizens, who now understand the issues better.There are alternatives to the single take-it-or-leave-itpackage that was presented by McLean.

What Are the Issues in the Lawsuit?

The original lawsuit filed by the McLean HospitalCorporation against the Town of Belmont sought a"declaratory judgment" by the Land Court that therezoning of the McLean land was valid. In the, Se0Ongms0fhe McLean lawsuit, Page 10 ,

"discovery" phase of the case, completed onDecember 20, key participants were questioned underoath, and relevant documents were obtained forreview. With the evidence that came to light duringdiscovery, the intervenors filed an amended"counterclaim and crossclaim" in the Land Court onDecember 29.

The issues raised in the intervenors' counterclaim

and crossclaim fall into two categories: proceduraland fundamental.

The procedural issues are based on allegationsthat the town failed to follow the laws of theCommonwealth, as well as its own by-laws, in theactivities that led to the Special Town Meeting onMay 24. For example, one allegation is that theamended by-law exceeded the scope of the originalzoning by-law that was presented to, and defeated by,the first Special Town Meeting on March 11.Another is that the town failed to hold publichearings on the amended zoning by-law. Yet anotheris that the town failed to give proper notice of thematters to be considered at the Special Town Meetingon May 24.

Other violations of law have been confirmed. OnJuly 14,1999, the Middlesex District Attorney,acting on a complaint originally filed by the editor ofthe Belmont Citizen-Herald early in 1998, ruled thatthe town's McLean Land Use Task Force hadviolated the Commonwealth's open meeting law byconducting improper executive session meetings onnumerous occasions between January 7 and July 14,1998. The executive session between town leadersand McLean Hospital management on the afternoonof May 14,1999, at which the town agreed to payMcLean Hospital an additional $2.2 million, is thesubject of a separate challenge in court.

The most important issue is the fundamentalone: illegal contract zoning. This is the matter thatled McLean Hospital, hoping for a quick settlement,to file a lawsuit seeking a declaratory judgment fromthe Land Court — even before the Attorney Generalhad completed his review of the by-law.

The intervenors' amended counterclaim andcrossclaim devotes twenty-nine paragraphs tospecific items related to contract zoning in theMcLean deal. Here are some examples:

• The zoning by-law change (Article 2), theMemorandum of Agreement (Article 3), andother actions (Articles 4 and 5) were clearlylinked together as a package deal. Referring tothe transcript of the first Special Town Meetingon March 9, the Town Moderator introducedthem as "...a complex and integrated proposal....

any change in the Zoning By-Law and anychange in the documents will void the agreementthat they represent." The integrated proposal wasa bilateral agreement — a contract — whereinthe town agreed to perform specific actions thathad value to McLean Hospital, and McLeanHospital agreed to transfer land to the town.

• Under the terms of the Memorandum ofAgreement, the Belmont Planning Board isrequired to approve the Concept Plan for thedevelopment of the Research and DevelopmentSubdistrict before McLean would convey theconservation land and the cemetery land to thetown. If the board does not approve the ConceptPlan — regardless of whether it is adequate andsatisfactory - the town will not receive what itwas promised for rezoning the land. Thisrequirement undermines the independent reviewauthority — the policing power — of thePlanning Board.

• The Memorandum of Agreement requires thetown to pay McLean Hospital $2.2 million inconsideration for McLean's agreement to reducethe allowed gross floor area in the Research andDevelopment Subdistrict from 200,000 to150,000 square feet. However, McLean neverhad any right to build 200,000 square feet of floorspace in that subdistrict. This agreement,therefore, obligates the town to pay for somethingthat McLean did not possess and could notconvey.

• The Memorandum of Agreement also states thatthe town will sell 12,807 square feet (0.294 acres)of the land that it obtains from McLean Hospitalto Eric and HelgaCosman for $100,000. Thisextraneous transaction is wholly unrelated to anyother aspect of the rezoning. Furthermore, if thetown ever has surplus property or land, it isrequired by law to advertise it publicly and sell itto the highest bidder. Such a sale cannot simplybe tucked into a rezoning agreement.

Nelson Bolen, a retired engineer, has lived inBelmont for thirty-three years and is the treasurer ofthe Belmont Citizens Forum.

What Is "Contract Zoning"?The Handbook of Massachusetts Land Use and

Planning Law by Mark Bobrowski contains thefollowing information on contract zoning:

Illegal contract zoning is said to involve theprocess by which a local government enters intoan agreement with a developer whereby thegovernment extracts a performance or promisefrom the developer in exchange for its agreementto rezone the property.

Illegal contract zoning is disfavored by courtsbecause of the risk of fraud, corruption andundue influence but is disapproved of largely onthe basis of the principle that a municipality maynot contract away its police power to regulate onbehalf of the general welfare.

However, current views of contract zoningwould result in an invalid rezoning only wherethere is an express bilateral agreement thatbargains away the municipality's future use ofthe police power.

One document obtained in the McLean lawsuit isa November 6,1998, report to the BelmontSelectmen from Philip B. Herr & Associates,planning consultants based in Newton. The reportsays:

Rezoning in exchange for money or otherconsiderations or with attached conditionsraises a red flag among planners, since theethics and legality of such arrangements areoften challenged.

The basis for the McLean rezoning has beendescribed by a number of people as an exchange.The Hospital is proposing to give the Town landand other valuable things, in return for which itseeks permission to use its remaining land moreintensively than would otherwise be possible,with fewer procedural obligations, and withgreater regulatory certainty. That aptly describescontract zoning.

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Belmont Center, continued from Page 1

and Leonard during peak times. Pleasant, Moore,Concord, and Leonard would also get additionaltraffic. The TAC is discussing the possibility of athree-month test of this change in traffic patterns,with police officers directing drivers at the keyintersections.

Chairman Paolillo hopes to present arecommendation to the Board of Selectmen in Marchafter discussing the plan further with abutters andbusiness owners. If the Selectmen approve, theproject would then become part of the town's annualbudget process, with funds ultimately approved byTown Meeting.

Claflin Street Parking

Belmont Center business owners would like tohave more parking available for shoppers, but addingnew spaces is a challenge. It is important to keep inmind that a majority of spaces are currently occupiedby cars parked for the full working day.

The cost of an underground parking garage isprohibitive. However, TAC members unanimouslyfavor a plan that would raise the number of parkingspaces in the lot behind the center from 154 to 182 byusing angle parking and making a portion of ClaflinStreet part of the present parking lot. Additional on-street parking spaces could be gained by squaring offthe intersection at Claflin and Channing and theintersection at Cross and Channing.

Other ideas include: (1) shifting some of the all-day parkers to a nearby church lot and providingshuttle service as needed, (2) redesigning the existinglot to allow "buddy parking," i.e. people who park allday are blocked in by another car parked behindthem, and (3) outlining new bus routes to make iteasier for shoppers to reach the center without a car.

New Bus Routes

More public transportation could reduce thetraffic impact of any development on the McLeanproperty. New bus routes would take at least a year

to implement, but they offer advantages to allresidents.

New Waltham-Belmont-Alewife Bus Route

A MBTA bus from Waltham past BentleyCollege through Belmont to Fresh Pond Mall andAlewife Station is under consideration. In addition tocutting down on commuter cars, this bus would giveresidents, particularly teenagers, easy access to theBentley College pool and the Fresh Pond cinema. Ifthe bus is routed past the McLean campus, McLeanemployees might be encouraged to use publictransportation.

A town shuttle connecting Waver ley Square,CushingSquare, and Belmont Center

A small express bus, like that used in Lexington,could run quietly and constantly to provide abouttwenty passengers, on each run, with free rides. Thisshuttle service, if successful, might be extended toother parts of town. The Metropolitan Area PlanningCouncil has federal grant money available to townsthat wish to improve air quality by increasing the useof buses and bikes. A grant to fund a new shuttle buscould cover 80 percent of the cost, at least for thefirst two years. In applying for the money, the townmust show a reduction in the number of car trips. Thenext opportunity to apply for this grant money isJanuary 2001.

A subcommittee has been formed to discusswhich routes might work best. The members areTommasina Olson, Linda Nickens, Joel Douglas, andSal Lentini.

Truck Routes

The City of Cambridge, which enacted acitywide night truck ban this past year, has agreed tosuspend the ban if the Massachusetts Area PlanningCouncil will propose major truck routes for thegeneral area (including Cambridge, Somerville,Watertown, Belmont, and several other surroundingtowns) that will avoid residential neighborhoods.The city has said it will renew its ban on throughtruck traffic if no regional truck route plan isestablished. The Cambridge City Council has said itis willing, if necessary, to go to court to get its truckban upheld.

A subcommittee of the MAPC is being formedwith one representative from each town to pick theseroutes. Sgt. Ken Hamilton of the Belmont PoliceDepartment is Belmont's representative.

Something to consider: What are the odds offinding a Belmont street that is truly nonresidential?

Upcoming Public Meetings

Traffic Advisory Committee Meeting Schedule:Belmont Library Assembly Room 7:30-9:30 p.m.,February 15, March 21, April 18, May 16, June 20.

Agenda for February 15:The Clark Street Bridge: Should it be reopened?The Redesign of Belmont Center

Whom to contact:

Mark Paolillo, Chairman of the Traffic AdvisoryCommittee, at 437-2729Tom Gatzunis, Director of Community Development,at 489-8220

Zoning for a Livable Future. A public forum

Tuesday, February 157:30 PM

Winn Brook School Cafeteria(Snow date: February 16)

Do you understand Belmont's zoning controls?What are some innovative techniques in zoning?Can we find a balance between private property

rights and public needs?Can "mansionization" happen in Belmont?

Can we zone for open space?

Guest speakers:Jeffrey Wheeler, Belmont Planning Coordinator

Philip B. Herr, Planning ConsultantJerold S Kayden, Associate Professor of UrbanPlanning, Harvard Graduate School of Design

Sponsored by the Board of Selectmenand the League of Women Voters

Building Moratorium Proposed for Alewife LandBy Sue Bass

A one-year moratorium on any development ofthe 12.2 acres of privately owned Belmont land in theAlewife area was proposed on January 19, 2000, bythe chairman of the Belmont Planning Board, JosephNewberg. Although Newburg said, at a publicmeeting of the Belmont Land Trust, that he had notyet discussed the proposal with other members of thePlanning Board, William Monahan, chairman of theBoard of Selectmen, immediately endorsed it andsaid he was certain the other selectmen wouldsupport it.

Alan McClennen, town planner of Arlington, toldof another control on development, one that is used inhis town: wetlands zones and floodplain zones areestablished as overlays on zoning districts townwide.He suggested that the moratorium could be used tomap the zones. Lloyd Allen, chairman of the BelmontConservation Commission, said the last mapping wasdone in 1994, but new ones would be required,because maps by law can be no more than three yearsold.

Both proposals are zoning changes that wouldrequire a two-thirds vote at town meeting.

The 12.2 acres of private land in Belmont areundeveloped, as is the 17-acre Mugar property acrossa curb cut to Route 2. Acquiring it for conservationland is the highest priority in Arlington's Open SpacePlan.

The Belmont land, along with adjoining land inCambridge, was bought from Arthur D. Little RealEstate Corp. last July by AP Cambridge PartnersLLC, a limited partnership, of which O'NeillProperties in Watertown is the general partner. TheBelmont land is now zoned for one- and two-familyhouses on 7,000-square-foot lots. Newberg hassuggested at Planning Board meetings that it mightbe preferable to rezone it for more intensivedevelopment on a smaller portion of the land, likemedical offices or research-and-developmentfacilities. That would save open space withoutinflicting traffic on town streets, he said, becausemost traffic to or from such development would beon Route 2. Again, a moratorium would allow timefor a study of rezoning.

The Alewife land in Belmont and Cambridge isvaluable for its role in providing drainage for much

Continued on Page 9

Entrances to Alewife Reservationand Public/Private Property

P U B L I C L A N D | j j j j L £ A y E I > T „ p R l ( / A Te C o M

P R I VAT E L A N D 'C A N O E L A U N C H > < 8 t U . « « J . C » - V r J , rE N T R A N C E S *MBTA BUS «78 FROM HARVARD SQUAREPRELIMINARY HANDICAP ENTRANCE(CALL 681-0500 WEEKDAYS SAM TO 5PM)PARKINGCONNECTING PATH FROM MINUTEMAN BIKE TRAILTO ALEWIFE STATIONSTONE DUST BIKE PATH FROM BELMONT TO , ^A L E W I F E T S T A T I O N H a > . T .

Reprinted from An Alewife Area Ecology Guide,with permission from Stewart Sanders.

Alewife, continued from Page 8

of Belmont, where flooded basements are common.The Little River carries 75 percent of Belmont'sstormwater runoff, Monahan said. Several speakerspointed out that the whole area is already verysensitive to any blockage of water flow because it'sso low. Hills Crossing, the spot where the railroadtracks cross Brighton Street, is actually four inchesbelow sea level, Monahan said. A rise in water levelat the Amelia Earhart dam in Everett can floodbasements in Belmont. Any further loss of Alewifeland to development might make Belmont's floodingworse.

Townhouse Buydown, continued from Page 12

half of the zone, approximately 4.4 acres, for the totalprice of $3.2 million (at $200,000 per lot for 16 lots).Instead, McLean offered only 1XA acres-the same100-foot strip the Land Trust had proposed-for $3.2million. And the town would not even own the land,but would have only the right to place a conservationrestriction on it. That may well have set a record highprice: more than $2 million an acre for a conservationrestriction.

The selectmen were outraged. A memo from thetown administrator to the town counsel reports, "It isSelectman Brownsberger's contention that the partieswould never have reached an agreement over apurchase price.. .without a clear understanding of thedimensions of the parcel." In an interview, WillBrownsberger said that "McLean immediatelybacked off' from its option language when theselectmen complained, but no new option proposalwas forthcoming. "The bottom line is, in all theconfusion, which was caused by a number of factors,it was already dead."

There may, however, be a second chance. In aninterview with the Globe Northwest Weekly, FrankStewart, the president of Northland ResidentialCorporation, the townhouse developer, said he iswilling to discuss ways to increase the buffer inreturn for compensation. "Now is actually a perfectlyviable time to negotiate with an owner,"Brownsberger said. "We're much more likely toreach some sort of reasonable accommodation.

~ Sue Bass

Book ReviewTrespassingAn Inquiry into the Private Ownership of LandBy John Hanson MitchellReading, Massachusetts: Perseus Books, 1998.

By Weld Carter, Jr.Trespassing has as its major focus the history of

several tracts of land in the Acton/Littleton area, fromthe time of its Native American occupants in the 1640sto the protective actions of conservationists during thelast decade.

The author describes strategies for land conservationand their success, even after town authorities and morethan one town meeting (in which all residents took part)had voted against those seeking to protect the lands.Mitchell, the editor of the Massachusetts AudubonSociety magazine Sanctuary, mentions the legal basisfor the measures that delayed, and ultimately prevented,the developments that might have caused severe damageto wildlife and to the quality of life of local residents.

He introduces us to Linda Cantillon, a womanemployed by the high school cafeteria, who had aprofound interest in preserving the natural habitats shehad enjoyed since her childhood. Mitchell tells of thework Cantillon undertook, on her own initiative, to learnhow to save the land. The reader meets a colorful castof characters including the Solicitor and variouslandowners, farmers, migrant workers, and "women intennis shoes" who are involved in the struggle.

Mitchell also takes us on a historic inquiry into thetreatment of Native Americans on these sites and theeffects of European-style agriculture on the land andwildlife. With his appreciation of diversity in the use ofland, Mitchell supports the old practice of community-owned housing surrounding a common. He raisesquestions concerning the legality of individuals holdingtitle to land, including a discussion of English law of theseventeenth and eighteenth centuries and its roots before1066, atopic I particularly enjoyed.

Unfortunately for the local residents, the bestintentions did not produce all the desired results. Eventhough the defenders of an environmentally friendly andmoderate development scheme finally won the legalstruggle, economic realities resulted in some damage tothe land. Nevertheless, the delay allowed a new localland trust to purchase several substantial parcels, whichremain protected and serene.

I consider the book a fascinating story, oneespecially relevant to the current issues in Belmont.

Origins of the McLean Lawsuit

Massachusetts law requires that all town zoningby-laws be reviewed by the Attorney General beforethey can take effect. This requirement appliesregardless of any controversy surrounding the bylaws. The Attorney General has ninety days toconduct the review, and the clock does not start untilthe town submits the new by-law to the AttorneyGeneral's Office.

On July 21,1999, the day after the townwidereferendum, the McLean Hospital Corporation filed alawsuit against the Town of Belmont in theMassachusetts Land Court. McLean sought a"declaratory judgment" that the rezoning of theMcLean Hospital land was valid. At that time, theTown of Belmont had not even submitted the newzoning by-law to the Attorney General for themandatory review. The first public notice ofMcLean's lawsuit appeared in the small print of the"Legal Notices" section, on page 15, of the August 19issue of the Belmont Citizen-Herald. A front-pagearticle in the August 26 issue of the Citizen-Heraldcontained the following explanation:

In papers filed with the court, StephenKidder, an attorney for McLean, wrote:"Certain issues have been raised concerningwhether the zoning amendment is invalid onthe basis that [it] represents impermissible'contract' zoning."

Eleven Belmont citizens, concerned about this preemptive strike by McLean Hospital, filed a motion

in the Land Court on September 16 to intervene inthe case. The eleven citizens also sent a letter to theAttorney General, raising various issues with therezoning of the McLean land.

The purpose of the newly formed BelmontCitizens Forum is to protect and preserve theenvironment of the town. Consequently, it quicklybecame an active supporter of the intervenors'efforts to ensure that the laws of the Commonwealthare followed in the development of the McLeanland.

The report of the Attorney General's review ofthe McLean rezoning was released on November 8,the end of the ninety-day review period. TheAttorney General's letter clearly states that hisreview was limited to Article 2; that is, to only oneof the four articles that had been adopted by theSpecial Town Meeting on May 24. His letter alsostates that, although he has limited power todisapprove local legislation, he disapproved severalparts of the zoning by-law mat dealt with theCemetery Subdistrict. The Attorney General ruledthat they had been added as improper amendments.

The Attorney General's report, acknowledgingthat the McLean rezoning raised a variety of issuesand that his office is not a court of law, goes on tostate: "We leave many of the points raised in theseletters for further consideration by a court [of]competent jurisdiction." Thus, the AttorneyGeneral's review did not settle many of thesignificant issues, and that is the reason that the casein the Land Court is relevant and important to thefuture of the town.

— Nelson Bolen

Times Are Tough for Continuing Care CommunitiesBy Henry BassMcLean Hospital recently announced a preliminaryagreement with a developer to build a 486-unitresidential facility for senior citizens on its propertyin Belmont The developer it named was AmericanRetirement Corp. of Brentwood, Tennessee.American Retirement Corp. was founded in February1978 by Jack C. Massey and Dr. Thomas F. Frist, Sr.,who also founded Nashville, Tennessee-

10

based Hospital Corp. of America (HCA), which later,through a merger, became Columbia/HCA. It was toHCA that the management of Massachusetts GeneralHospital tried to sell both McLean and Mass. Generalin 1984, only to be stopped by the Harvard MedicalSchool faculty. Frist's son, Bill Frist, is a U.S.Senator from Tennessee.

Columbia/HCA, the largest health-care chain inthe United States, has had problems recently. After a

federal grand jury investigated its Medicare andpatient-referral procedures, several top executives leftthe company. The company ceased offeringpartnership interests to its physicians and said itwould disclose more financial information than isrequired by Medicare in the future. In July 1999, twoColumbia/HCA employees were found guilty infederal court in Tampa, Florida, of conspiracy andmaking false Medicare statements. A third employeewas acquitted, and the jury deadlocked on a fourth.Columbia/HCA cooperated with the governmentinvestigation of the company.

American Retirement Corp., HCA/Columbia'ssister firm, is in the long-term-care industry. Thisindustry had a dismal financial performance in 1999.During the year, the stock of American Retirement(sticker symbol ACR) declined from 18 Vi to 4,although it had recovered somewhat, to 7 3/4 as ofJanuary 21. Most of American Retirement'scompetitors have suffered even more. American

Retirement's financial situation is less grim partlybecause the vast majority of its customers are fundedprivately rather than by Medicare.

Nevertheless, American Retirement's problemswere serious enough that, at the end of the thirdquarter of 1999, it decided to suspend construction onmost new facilities and concentrate on acquisitions ofattractively priced existing long-term-carecomplexes. Several planned construction projectswere put on hold.

Todd Kaestner, Executive Vice President ofAmerican Retirement, said the McLean developmentwas entirely different from the canceled projects. Hesaid his company intended to go ahead with theMcLean complex, though plans are still in thepreliminary stages. The company is interviewingarchitects, he said.

Henry Bass is an economist.

Check web sites: American Rerirement'(www;arclp.com) Columbia/HCA (www.columbia-hca.com)/ y j J X ^ ( ^ / *

We need you.Preserving and protecting what we all love about Belmontrequires citizen action. If you can volunteer even a fewhours a month, you can make a difference. You do notneed to be an expert—just a person who cares about ourtown. Please tell us how you can help.

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Belmont Citizens ForumP. O. Box 609Belmont MA 02478Address Correction Requested

People Are Askins

Whatever happened to theMcLean townhouse buydown?

Zone 1A on the McLean property is the clump oftownhouses that juts out into the open space, comingwithin 200 feet of One Tree Hill. These 8.81 acrespresented a problem for those trying to convinceopen-spacers to approve the rezoning, so acompromise was offered. If people donated enoughmoney, they could buy out half the zone, the half thatimpinged most egregiously on the open space. Orthat's what people thought the compromise meant.

The actual language was: "McLean agrees togrant to the Town an option, in a form satisfactory tothe Town, to purchase up to sixteen lots contiguous tothe high quality open space in Zone 1A at a price of$200,000 per lot, provided, however, that if at leastsix lots are not so purchased by September 30,1999,the option will terminate."

At the May 24 Town Meeting, knowledgeablepeople raised doubts about this language. What was

the legal definition of "lot"? This turned out to be aprescient question.

Through June, July, and August, McLean failed tocome up with the legal language for the option.People who wanted to give money didn't know whatthey could buy. The Selectmen discussed the issue inexecutive session. Time was running out.

Documents made public as a result of litigationin Land Court show that the Belmont Land Trustsuggested a plan to McLean: buying a 100-foot stripalong the northern boundary of the zone, the OneTree Hill side—about 1 lA acres—to widen the bufferbetween the houses and the open space. The LandTrust would compensate McLean for loss of revenue.

That offer was immediately rejected, but the legallanguage for the original option was not forthcoming.Not until September 10—twenty days before theoption was to expire—did McLean President BruceCohen spell out the offer. It was not at all whatpeople had expected—that they could buy the northern

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