Select Board: Old Billerica Road Land Purchase Waiver May Have Been Compromised

July 5, 2023
April 5 Revision of the plans for Michael Bacon Way, a 13-unit residential development on Old Billerica Road, from the Site Plan prepared by Stamski and McNary, Inc.

A proposed housing development on the site of a former Old Billerica Road horse farm, scaled back to satisfy neighbors, has encountered an unexpected snag.

The Bedford Select Board last week pointed out that, under terms of a memorandum of understanding with the owner, the development would include two housing units that meet the state definition of affordable. 

But those two were dropped when the number of units was reduced from 16 to 12 at 251A and 251F Old Billerica Rd.

The memorandum was issued waiving the town’s right of first refusal for purchasing the land, a provision of a state law that protects forestry resources. 

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Chair Bopha Malone said the board will review its options with town counsel.

Since the houses are clustered to maximize open space, the proposal is defined as a planned residential development, requiring a special permit from the Planning Board. The board has been hosting an extended public hearing on Zoom about the proposal for almost 10 months. Resumption will depend on the Select Board’s decision.

Pamela Brown, the attorney representing developer Bilca LLC of Acton, told the Select Board last week that the memorandum of understanding focused on retention of open space and “really had nothing to do with affordable housing.” 

She requested that the document be amended, saying, “I thought this was a pretty straightforward request.” Indeed, she noted that she addressed the issue only after a conversation with the planning director. 

The original proposal for 16 units included two affordable ones as mandated under the zoning bylaw. Once the plan was reduced, the new density no longer has an affordable requirement, Brown explained.

She did suggest a possible compromise: adding two units to the current 13, one of which would be affordable. “Although my client would be happy to go back to 17 units,” she said, the neighbors would not.

Board member Margot Fleischman said she reviewed the recording of the May 24, 2021 meeting and, “we talked about the potential of at least two affordable units. That was something important to us.” She said the Select Board waived its right to purchase “based on our understanding of what was in the best interests of the town.”

At that meeting, she said, “Town Counsel did explain that the Select Board was contracting with the buyer, and if not developed in the matter outlined, the first refusal would be reinstated.” 

“I don’t remember that much discussion about the affordable,” said Brown, acknowledging that she didn’t review the recording. “In my mind the primary support” was based on the developer’s intent to retain the open space, which would accomplish the same thing as a town purchase for $2 million, matching the sale price. Brown said the owner will propose donating the open space to the town.

She explained that the project was reduced in size “to satisfy the neighbors and accommodate their concern for privacy. They were more supportive of the low-density project.” She said her client has been “trying to make everybody happy, which has been almost futile.” 

“We are trying to balance the benefits of the project with the interests of the abutters,” Brown said, describing a landscape plan designed “so they don’t see a headlight or a drop of drainage.”

Select Board members were emphatic about the integrity of the original agreement. “We asked for and received agreement that there would be two affordable units and our vote was contingent on that,” said Fleischman. 

“This seems like a huge ask,” said Paul Mortenson. “The commitment was made to two affordable units,” said Shawn Hanegan, and there were no contingencies. 

Brown replied that it is not financially feasible to include two affordable units among the currently proposed 13.

Brown said her alternate plan would involve “a huge time and effort and expense,” including documentation, marketing materials, and advertising for the affordable house. “But if that’s what makes the board happier, it might be a compromise,” she said.

The residential development also includes the Bacon House at 229 Old Billerica Rd. – considered the oldest house in Bedford – in order to allow for a new roadway to provide emergency vehicle access. That location is not part of the open space addressed in the memorandum.

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