Was that really a 15 yard penalty?

Last night I was toying with several ides for today's blog.  By the time the lights went out I hadn't made any decisions.  Waking up this morning though, and after reading the latest edition of the local weekly, the article on the Planning Board meeting concerning the special permit for the solar farm proposal at least set me off in the right direction as far as a start.

The Fairhaven Neighborhood News report is certainly intriguing enough to get me to try and remember to view the tape for that one. The editor's letter (and the editor was the covering reporter apparently) describes the matter as follows:

The Planning Board approved the solar facility on Mill Road after a rather bizarre discussion about what constitutes 10 acres and what does not.

Whether the discussion reaches the level of bizarre for anyone would of course be an opinion one cold only form after actually reviewing the tape.

Personally however interesting it may be to read about disagreements about the meaning of terms, the more intriguing aspect to me revolves around the c. 61A issue.  There is something of a chicken or the egg argument to the discussion as it was put in print.

The proposed lease is what triggers the provisions of the law relative to taxation as agricultural land, change of use, legal requirements to offer the land to the town, and future taxation.

Simply from the tax perspective to by the way, if the town does not buy the land, the 6 acres for which a special permit was granted will be taxed at a higher rate. Of course if the 10 acres as required under the by-law were insisted upon, the ten acres would be taxed at a higher rate, and perhaps might have pushed whatever the actual value is determined even higher, beyond even the town's potential ability to pay.

Now it is in the sound discretion of the Planning board to grant a special permit.  When the applicant states, and I add here I am going by what was reported in the article, that it is willing to lease 10 acres if that is required, well me, I might be inclined to exercise my discretion to get the extra 4 acres on the tax role at a higher rate, especially when I think there might be a strong legal argument to do so; and, if I also thought doing so might prevent the town from having the ability to purchase the land or certainly make it more difficult.  

Being the devious person I am, I might consider leaving that second part out though from the public record. Wouldn't need to add it in anyway, assuming the first part held up, which it seems it would since the applicant was willing to go along with it.

Just some interesting thoughts that came to mind after the read of the paper.  

One other thing though.  The reported comment about the selectmen interfering with with a transaction involving private land and a private business. I am going to ignore the easy shot on how that comment has been applied to a different board time and time again.

Now if you are a regular reader, you know it is not often I come to the defense of the Board of Selectmen. But in this case, I feel it is warranted.  Not because I believe we should buy the land. I don't have enough information on the matter to express an opinion.  Of course a regular reader will also know my basic belief as far as the Town getting involved in the real estate business.  Nonetheless, one can and should look at every proposal on its own merits.

That being said, if the selectmen's action as to this parcel constitutes an interference and that is wrong, than what possible action could the selectmen ever take under c. 61A that would be justified? 

C. 61A absolutely gives the selectmen the option to "interfere" with a transaction involving private land and a private business (or parties).  

The owner has reaped the substantial benefits of a law that provides the owner with significant tax breaks. This is not an automatic tax break by the way.  The owner must seek it, and must provide prove that the owner is entitled to it on an on going basis.  

The owner is also fully aware, and if not is not out of inexcusable ignorance, that if the owner ever chooses to sell or alter the use of the land as in this case, the owner is required to offer up the land ( digest version of the actual legal conditions by the way, but accurate for the discussion).  Put into the business relationship context, the owner has entered into a statutorily authorized agreement whereby in consideration for substantial tax reductions the owner agrees that a proposed sale or conversion of use entitles the taxing authority to a right of first refusal.

There are essentially two business deals here.  The first having been agreed to well before the second.  In the strict technical sense one might be able to argue if the Town exercises its option it is interfering with a private deal.  But I would submit that the use of interference is incorrect.  The owner voluntarily and legally obligated obligated himself when he submitted the tax break request and accepted it.

In the tried and true concept applied to many real estate transactions, first in time is first in line.  The town's right takes precedent to the proposed change of use.

You can argue we have no need for the land.  You can argue we can't afford the land.  You can argue we would be better off financially if we didn't buy the land.  You can totally disagree with the decision of the board to try and buy the land.

You cannot argue that the selectmen do not have a legal obligation to make that decision however.  That is the implication you make when the selectmen actually get around to making a decision that they exist for and you classify it as interfering.

If making an optional decision to take action on a matter that the law allows you to do, but does not require you to do, is in fact still interfering in your mind, well the selectboard in my mind isn't the only board that does that now, is it.  

In the end all is good, one way or another, because all nearly such interference calls are reviewed by the ultimate official known as Town Meeting.