Eminent domain challenged: The Boston (MA) Globe, 2/5/06

By Matt Gunderson

Saying that Groton misused its powers to take property, a developer has sued the town for giving selectmen the authority to seize land off Lowell Road by eminent domain at a special Town Meeting last fall.

In a lawsuit filed in Middlesex Superior Court last month, Washington Green Development says the eminent domain vote taken at Town Meeting in September was illegal because the town was using the measure to derail the company's 44-unit townhouse development.

The Groton Electric Light Commission had said at Town Meeting that it wanted to purchase the property because it was an ideal location for its department offices. The Light Department currently has its headquarters on Station Avenue.

"There is clear, abundant evidence that the impetus for, and dominant purpose of, the taking is to prevent the development from being built on the property," the lawsuit states.

Doris Chojnowski, manager of the Groton Light Department, said she had no comment on the lawsuit, except to say that the department has not altered its plans to locate its new offices on Lowell Road.

The department had agreed to pay $500,000 for the property as part of the land taking.

"Lowell Road is the best location for the Light Department, and that's where we are headed," Chojnowski said.

The lawsuit marks the second time in the last year that Groton has faced legal issues involving eminent domain.

In June, a jury awarded the Casella family more money after the family disputed what the school district paid for land it took by eminent domain.

That land is the site of the new high school on Chicopee Row, and the Groton-Dunstable Regional School Committee has opted to appeal the verdict. The case is awaiting a hearing.

Attorney Ray Lyons, who represents Washington Green, said his client still hopes to build the development if it prevails in the suit. It applied for the project under the state's affordable housing law, Chapter 40B. In communities that do not meet the state's threshold for affordable housing, the law allows developers to bypass local zoning if they set aside at least 20 percent of the housing units at below-market prices.

"I personally view it as a good site for the town to make headway on its 40B goals," said Lyons.

The special Town Meeting on Sept. 12 was well attended, and voters debated the eminent domain article at length. The measure ultimately passed with little opposition.

The townhouse plan had faced opposition from local officials since last spring, when Washington Green appeared before town boards.

Last March, the Zoning Board of Appeals denied the permit on grounds that the housing plan created health and liability risks for the town because it was close to an electric substation.

Washington Green appealed the decision, and in September the Massachusetts Department of Housing and Community Development's Housing Appeals Committee overturned the zoning board's decision, saying the health and liability risk for residents living in the housing was not a sufficient reason to deny the permit, according to the complaint.

Gloria Fuccillo, who owns the Lowell Road property, was angered by the Town Meeting vote, saying she had originally offered to sell her 13.5 acres to the Light Department, but had been refused. The Light Department had already taken steps to put its offices on Sandy Pond Road and didn't need her property for its offices, she said she was told.

"The only reason [the town] wants it is because of that 40B," said Fuccillo. "I'm definitely rooting for the contractor."

Because the case is pending, local officials interviewed on the issue were reluctant to comment specifically on the allegations. George F. "Fran" Dillon Jr., chairman of the Board of Selectmen, said that, generally speaking, "There is nothing that I know of that the town is doing illegally. But it's up to the court and the [Housing Appeals Commission] to decide."

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