See also an April 23, 2004 letter from Michael Baram to To Karl Haglund & Fred Paulsen:
40 B attorney consultation needed for preservation of rare forest and core of Alewife Reservation - April 2004

A group of Belmont Citizens has developed an Alternative Plan to O'Neill's Housing Proposal for the Belmont Uplands. This Alternative Plan is now before you for discussion of its feasibility. I hope you will take the following matters into consideration.

Feasibility usually refers to whether something is doable. In the case of the Alternative Plan, I suggest that determining its feasibility involves answering three main questions.

1. Will the Alternative Plan help meet the Town's needs and goals?
2. Will the Alternative Plan be an economically reasonable venture for O'Neill?
3. Will the state provide the site for the Alternative Plan?

1. Will the Alternative Plan Help Meet the Town's Needs and Goals?
Belmont has recognized needs for affordable and senior housing, for environmental quality, and for additional property tax revenue. The Alternative Plan would help the Town meet these needs. It would provide 150 housing units with 25% affordable and 50% age restricted. It would maximize protection of the Uplands environment as called for by the Selectmen's Alewife Study Committee Final Report (March 2001), the Town's Open Space and Recreation Plan (Dec. 2000), and several state reports (MAPC, MDC). And if the state transfers the site for the Alternative Plan to the developer (or to the Town for transfer to the developer), implementation of the Alternative Plan would generate additional revenue (with a lesser burden on Town services than what would follow from the O'Neill proposal).

2. Will the Alternative Plan be an Economically Reasonable Venture for O'Neill?
To date, O'Neill has indicated that the Alternative Plan would be less favorable than his plan to build 250 to 300 units in the Uplands. However, no town is obligated to provide a developer with the most economically favorable outcome from the developer's speculative purchase of property. The courts have recognized this by repeatedly holding that a town can, without causing a taking, reasonably restrain a developer from the most economically advantageous exploitation of his property.

In this case, the Town is confronted by a developer who purchased a large parcel from A.D. Little for $21 million, segmented the parcel into two subparcels, quickly sold the Cambridge subparcel for $63 million within a year, and now seeks to maximize gain from the Belmont subparcel (the Uplands). Thus, this developer has strategically segmented his property into two subparcels for maximizing profit. However, according to U.S. Supreme Court decisions, the "whole parcel" must be taken into account when community regulation of a subparcel is contested by a developer as being excessive. Belmont should follow this "whole parcel" logic when considering whether the Alternative Plan is economically reasonable for O'Neill: i.e. it should include consideration of his $42 million gain from selling the Cambridge subparcel when evaluating whether the Alternative Plan is an economically reasonable option vis a vis the Belmont subparcel.

The Town should also consider that tax benefits would accrue to O'Neill under the Alternative Plan. By trading the Uplands site with its higher market value for the Alternative Plan site with its anticipated lower market value, O'Neill would be entitled to an income tax deduction and a reduction in capital gains tax. In addition, the federal tax code would also provide an additional significant benefit to O'Neill, namely the ability to defer paying his capital gains tax for up to three years. Consultants are available to explain the arrangements needed to trigger these tax benefits.

Given these considerations, and O'Neill's skill in profitably designing and marketing residential develpments within the parameters set by a community, it seems that the Alternative Plan outlines an economically reasonable option for this developer.

3. Will the State Provide the Site for the Alternative Plan?
The State has conveyed parcels of state land to communities and developers for various public purposes. The Alternative Plan envisions legislation that would convey the abandoned skating rink site, currently held by the new Department of Conservation and Recreation (DCR), to O'Neill in return for O'Neill's conveyance of the Uplands site to DCR. This is a highly advantageous proposition for the State as it would enable DCR to add the Uplands to the contiguos Alewife Reservation that it holds (as successor to the Metropolitan District Commission), a seamless fit of open space and wetlands destined for regional use for recreational, ecological and flood control purposes. Thus, there is a reasonable likelihood that State action would be triggered once it is known that Belmont is committed to the Alternative Plan. Additional arrangements with the State for sewer connection and traffic routing would then follow.

To sum up, I believe that the Alternative Plan is feasible on economic, political and legal grounds. Further, it is supported by many organizations and individuals in Belmont and neighboring communities as a creative and fair compromise between competing interests.

I hope the Planning Board will endorse the Alternative Plan and appoint a working group to proceed with its implementation.

Thank you for the opportunity to make this statement.

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Professor Michael Baram
Director,Center for Law & Technology
Boston University Law School
765 Commonwealth Ave.,Room 866
Boston,MA 02215,USA
tel.617-353-5294
fax 617-484-6886