Doc 363635 Em Chelmsford Matter #226 December 22, 2008 Dear Evan, After reviewing the comprehensive permit

application, plans, and other materials for the proposed 672-rental unit development in the Town of Billerica (the Project) that you forwarded to me, I am providing you with the following preliminary analysis and recommendations. Jurisdiction of Chelmsford under G.L. c.40B, 20-23 Based upon the application and plans, because the applicant is not proposing any housing within the Town of Chelmsford, it is my opinion that the Project is not subject to a comprehensive permit from the Town of Chelmsford. The fact that the Project proposes an emergency access through a curb cut in Chelmsford and abuts land in Chelmsford does not give Chelmsford jurisdiction over the Project under c.40B, in my opinion. Chelmsfords authority is limited to thecurbcutpermit,inaccordancewiththeChelmsfordcurbcutbylaw.Additionally, it is my opinion that the Town of Billerica, where the Project would be located, has no authority under G.L. c.40B, 20-23 to grant or waive a permit that may be required from another municipality, suchasacurbcutpermit. Although Chelmsford lacks authority under G.L. c.40B, 20-23, Chelmsford may participate in the Billerica Zoning Board of Appeals (ZBA) public hearing by attending and submitting comments regarding Chelmsfords interest in the Project. Additionally, Chelmsford may have standing to appeal the final decision of the Billerica ZBA. I note that you have informed me that State Street, the cul-de-sac which abuts the Projectsite,isapublicway.Whetherthe Towns ownership interest in State Street is sufficient to qualify the Town as an abutter, with a presumption of standing as an aggrieved person under G.L. c.40A, 17, requires further research. From a strategic perspective, it may be better that Chelmsford does not have jurisdiction over the Projectunderthecomprehensivepermitlaw.Issuanceordenialofacomprehensive permit would subject the Chelmsford ZBA to possible appeal to the Housing Appeals Committee (HAC), and as we know, municipal concerns historically have not fared well before HAC. Therefore, my recommendation is that Chelmsford prepare and present to the Billerica ZBA detailed documentation of the public safety and other concerns that the Project raises for Chelmsford. Further Investigation Based upon the Project application and other documents and our conversations, the following areas warrant further investigation, in my opinion. 1. PublicSafety:I am assuming that there is a Chelmsford-Billerica Mutual Aid Agreement. What does the agreement provide regarding the obligations of each town to the other?What limits are included in the agreement? What specific public safety concerns does Chelmsford have regarding the Project and how would the Project impact public safety issues in Chelmsford? It is important that any public safety concerns be described in as much detail and with as much supporting factual information as possible. If you would like me to review the Mutual Aid Agreement, please forward it to me and I would be glad to do so. We can also address how to present particular public safety concerns to the Billerica ZBA.

2. StateStreet:WhatinformationisavailableregardingStateStreet?Isthisastreetthat wasinitiallyapprovedaspartofasubdivision?Whatweretheconditionstosubdivision approval,ifany?It also appears that State Street is a dead-end. A curb cut may require a modificationofthesubdivisionapproval,withlotownerandmortgageeconsents.When was State Street laid out and accepted as a public way by the Town and what property interest was acquired (fee or easement)? When we discussed this issue, you stated that there was some discrepancy between the layout and acceptance of State Street. I recommend reviewing those documents in detail, as well as any plans showing the area of pavement. It is possible that in addition to the curb cut, and, possibly modification of the subdivision, an easement over land in Chelmsford would be required to access State Street. If that is the case, then under a recent decision by the Supreme Judicial Court involving the Town of Groton, the Court ruled that HAC could not require that an easement be granted. Depending on the facts related to State Street, we would be able to evaluate further our advice to Chelmsford on the easement and related issues. 3. CurbCutBylaw:Groundsforapprovalanddenialand past practice under this Bylaw should be reviewed. Public Hearing Asstated above, I recommend that Chelmsford may want to participate in the next and futuresessionsofthepublichearingtopresentitsconcernsinwritingtotheBillericaZBA.If Chelmsford would like Town Counsel to appear at that hearing, we would be glad to do so. Please contact me or my associate, Attorney Laura Pawle, if you have questions or to discuss this matter further. Very truly yours, Pat