Wellesley Advisory Committee hears Select Board options on 40 Oakland: negotiate with state or prepare for litigation

Madison Riley, chair of the Wellesley Advisory Committee, convened the April 22 meeting where Select Board Chair Marjorie Freiman and Town Counsel Tom Harrington presented proposed Special Town Meeting warrant articles and legal options for the state-initiated disposition of MassBay Community College’s 45-acre property at 40 Oakland Street.

The Select Board said the Division of Capital Asset Management and Maintenance (DCAMM) has determined the parcel surplus and will limit disposition to housing; the state’s communications consistently cited 180 units as a minimum. The Select Board described two primary paths for the Town: formally negotiate with the Commonwealth to secure traffic mitigation, moving student parking off Oakland Street, and conservation protections on parts of the site, or prepare to fund and pursue litigation challenging the surplus designation and related regulations.

Why it matters: The site adjoins Centennial Reservation and other protected parcels, and residents and the Select Board described steep tradeoffs between securing conservation commitments through negotiation and accepting the legal uncertainty and potentially high cost of litigation. DCAMM set a May 13 deadline for the Town’s comments to inform the state’s RFP process and indicated an RFP release in July.

Residents pressed the committee. Jonathan Ettinger, of 24 Grantland Road, urged opposition and said the proposal would develop “7 to 8 acres” including wetlands protection and water-supply protection districts, not just the approximately 4.4-acre paved parking lot. Ettinger cited Article 97 of the Massachusetts Constitution and a 1996 MassBay trustees’ letter promising the land would “remain in its present natural state,” and said the community should oppose the state plan. Doug Youngen, president of Friends of Centennial, said the group is not anti-housing but described the state proposal as “poorly conceived top-down development imposed by the state,” reported more than 3,400 petition signatures and said the group has retained Hill Law and is prepared to pursue litigation.

Town officials described legal and practical constraints. Ms. Freiman said the Select Board intends to ask Town Meeting for guidance and that there is “significant middle ground” where motions could push more toward negotiation or litigation. Town Counsel Tom Harrington warned that Article 97 claims and regulatory challenges present uncertainty: Massachusetts courts apply presumptions favoring administrative action, and prior cases show courts require clear evidence that land was dedicated or permanently set aside to trigger Article 97 protections. He said surplus designation under the Affordable Homes Act of 2024 functions differently from prior state practice because a college president may declare property surplus and the trustees have 60 days to act.

Committee members sought specifics and probed tradeoffs. Members asked whether the Town could offer input short of negotiation, whether negotiating would waive future legal options, how much of the site the state intends to develop, and what protections a conservation restriction would actually deliver. Ms. Freiman responded that negotiating could secure certain concessions now (a “bird in the hand”) while litigation is uncertain; Harrington said litigation costs could run “in the high hundreds of thousands” and outcomes are unpredictable because some legal issues are of first impression.

Budget and schedule details: The Select Board plans to request authorization to fund potential litigation; the warrant includes an Article 3 litigation budget request of $900,000 in addition to $200,000 previously authorized under Article 7, bringing the potential total across two fiscal years to $1.1 million. The Select Board emphasized the RFP comment deadline of May 13 and said STM will be a one-night Special Town Meeting (May 11) intended to provide non-binding guidance and motion language to inform the Town’s May 13 comment and the state’s RFP preparation.

What’s next: The Advisory Committee scheduled a public hearing for the following Wednesday with three minutes per speaker and will discuss recommendations for the Select Board and Town at its May 13 meeting. The Select Board will finalize motion language to go to STM and intends to weigh resident input, legal analyses and traffic mitigation options before deciding whether to negotiate or litigate.

Quotes from the record: “There’s been no discussion about possibly limiting the number of units. For the state, it’s 180 units or bust,” Jonathan Ettinger said. “This is a bird in the hand or something you don’t know,” Select Board Chair Marjorie Freiman said when describing negotiation versus litigation options. “We are prepared to pursue legal challenges through all appropriate channels,” Doug Youngen, president of Friends of Centennial, told the committee.

The Advisory Committee did not take a formal vote on the warrant articles at the April 22 meeting; it will next convene for a public hearing and to consider formal recommendations and motions before the Town’s May comment deadline.