Plymouth Town Counsel Weighs In on Wood Lot

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Both Boston South and the County Commissioners have repeatedly said to the public that they would be entering into a 3 years lease, and once Boston South decided what it felt was the best use of the property, a new, long-term lease would be executed.  Well the lease is now signed, and it is far from what was originally represented. 

At the start of this process, the Plymouth County Commissioners made public the  lease it stated would be signed per the terms of the original Request for Proposal.  It was actually required to do so, as under State law the Town of Plymouth has a right of first refusal.  Specifically, G.L. c. 34, section 14 provides:

"any real estate offered for sale or lease, by a county shall first be offered for sale or lease to the commonwealth and upon the non-acceptance by the commonwealth of any such offer, shall then be offered for sale or lease to the city or town where such land is located."

The County did offer to lease the Wood Lot to the Town of Plymouth for 3 years, at a cost of $450,000, which it said was the same terms being offered to Boston South.  This was consistent with the statements being made by the County and Boston South.  The Town understandably chose not to exercise that option.  But this was a bait and switch!

Following this decision, the County Commissioners and Boston South entered into separate negotiations to revise the terms of this proposed lease.  What they ultimately came up with is substantively different in a significant way - the term of the lease.  Instead of the simple 3 year, $750,000 lease offered by the County to the Town, Boston South is getting a 3 year lease which then gives Boston South, at its sole discretion, the right to extend for an ADDITIONAL 70 YEARS!  And the cost for this extension - $250,000 per year (subject to increases per the Consumer Price Index) and then up to 12% of the gross revenue generated from the site each year thereafter.   To see a copy of the lease click the link above.

Why weren't the residents of Plymouth told this was the plan?  Unquestionably, it was to avoid scrutiny.  So the County Commissioners told the public that this was just a 3 year exploratory lease, and then proceeded to let Boston South dictate what will happen for 73 years.  

A number of people have asked me whether I believe the Select Board’s March 29, 2022 vote and its April 5, 2022 letter can be argued to constitute an approval of a racetrack which can be used to obtain a license from the State for such activity or for some other form of betting facility.  With the caveat that I am not an expert in gaming  licenses, and have never appeared before the Massachusetts Gaming Commission, from my research and experience making arguments before both trial and appellate courts and many other administrative bodies at both the state and federal level, I don’t believe these actions would constitute such an approval.  

As I have previously noted, M.G.L. c. 128A  requires an approval per another statute, M.G.L. c. 271, §33, which says in relevant part:  

"No land within a town shall be laid out or used as a race ground or trotting park without the previous consent of and location by … the selectmen… "  

Looking at this specific wording, it requires approval by the Select Board of both the location and the activity, horse racing.  As horse racing was not authorized by either the vote of the Select Board or its letter, I would argue the necessary consent has not been given.  

The motion on which the Select Board voted states:  

"I move that the Board express support for the conceptual project of a sports & entertainment complex and associated service amenities in the Town of Plymouth, to be located on approximately 110 acres of land on Camelot Drive and Long Pond Road, also known as the Wood Lot, subject to the project proponent obtaining all necessary licenses, permits, and approvals and maintaining compliance with all applicable statutes, codes, regulations, and by-laws."   

As important as what this says, what is more important is what it doesn’t say – that it supports the operation of a horse racing track.  In fact, as shown by the copy of the motion that was released by the Town in response to a resident’s request, the original text of the motion did include the words “thoroughbred race track”, but those words were stricken and replaced with “sports & entertainment complex”.  Having expressly removed horse racing from the text of the motion, in my experience it would be extremely unlikely for any court or agency to find that the motion intended to authorize that activity, particularly as under Massachusetts law, courts and agencies are not to insert terms into an agreement unless absolutely necessary for the agreement to make sense, which is simply not the case here.  

I also note that the motion didn’t expressly authorize any activity, but rather spoke only to “support for the conceptual project...”  While this is a closer question, since the statute does require approval of both the activity and location, the fact that the motion spoke only to support for the concept would be further basis to argue that no actual authorization was being given by the Town.  

The same argument holds true for the April 5, 2022 letter.  Therein, there is also no reference to approval of horse racing, or any language which could be interpreted as having that same meaning.  To the contrary, the text of the letter actually refutes any such assertion, stating:  

"As this is just the start of a long public process, we do not specifically endorse any particular use for the “Wood Lot” at this time."  

As for what the Select Board stated it did endorse on behalf of the Town, the letter indicated the Select Board voted to:  

"…support Boston South Real Estate and Development, LLC as it begins their due diligence to determine the best uses of the Plymouth County “Wood Lot”. " 

As with the vote, there is no language which evidences consent for the specific activity of horse racing, and there is language to express that such consent was actually being withheld.  Compare this to the letter of approval given by the Town of Sturbridge, and included in the application of Sturbridge Equine and agricultural Center LLC for approval of racing submitted to the Massachusetts Gaming Commission, Division of Racing [which can be found immediateky below], which not only specifically states it is giving such approval, but even cites to compliance with State statute M.G.L. c. 128A §13A, and its notice provisions.    

As people may correctly point out, there is nothing Plymouth can do to stop the developer from nonetheless making these arguments, and they have in fact falsely stated to the Gaming Commission that the Town has approved their proposal.  I am well aware that anything can happen when a matter is placed before an administrative body or court.  However, given the express refutation of approval of horse racing in the motion, and of any specific activity in the letter, in this instance I believe such argument to be contrary to the facts and the law, and therefore I do not see a court or agency finding that this letter implies an intention to convey approval of horse racing in Plymouth.  That said, now that the people have spoken, it is time for the Select Board to make clear to the Gaming Commission that the Town of Plymouth does not approve horseracing on the Wood Lot. 

Given the limited services provided by County government, and recent issues regarding its potential imposition on the Town of Plymouth of unwanted activities on County owned land, the question has been raised as to whether the Town of Plymouth can do anything regarding County government.  This is a question that has been asked before.  

What is County Government?

Plymouth County was created in 1685 by the Plymouth General Court, the legislative body of Plymouth Colony at that time. A few years later, Plymouth County was annexed by Massachusetts Bay Colony.  It is comprised of 27 towns/cities.  It has no charter, and instead operates as a ‘statutory’ county under State law.   At their peak there were 14 counties in Massachusetts.  However, many were rife with mismanagement and even corruption.  As a result, at the end of the 20th century 8 of those counties dissolved.    

Why did those county governments dissolve?

The first of these, Middlesex County, was involuntary.  In 1997, before it was forced to declare bankruptcy, the Massachusetts legislature stepped in and assumed all assets and obligations of the county. But shortly thereafter, a wave of Massachusetts counties voted to voluntarily dissolve their county governments.  In 1997, the County Franklin Commission voted to voluntary dissolve itself.  It was followed by Hampden County and Worcester County (effective July 1, 1998), Hampshire County  (January 1, 1999), Essex County and Suffolk County (July 1, 1999), and Berkshire County (July 1, 2000).   Currently, only Barnstable, Bristol, Dukes, Norfolk, Nantucket, and Plymouth counties are left.  

What does county government do?

After assuming the governmental functions of all of these dissolving county governments, the State noticed an ability to operate these functions in a more coordinated and efficient fashion.  Accordingly, the State proceeded to assume more of the responsibilities of the existing county governments.  This culminated on January 1, 2010, with the signing of a reform bill by Governor Deval Patrick placing the Sheriff’s Department under state control.  In most instances, that left the operation of the County courthouses, jails, and registries of deeds as the only governmental functions of county government.  However, it should be noted that with regard to the facilities located in the Town of Plymouth, both the Superior Courthouse and the House of Corrections were constructed by the State, meaning that unlike the other communities in Plymouth County, they are not owned by the county.

The county does undertake some activities with regard to group health insurance, but these are done based on statutory authority, meaning that there doesn't have to be a formal county government in order for them to occur.  The county does obtain some grants that are only available to counties (as opposed to towns and cities), but the total regional grants anticipated by Plymouth County in its FY2022 budget is $10,000.

Has there ever been an attempt to eliminate Plymouth County government?

Given the ongoing changes and reduction in services provided by Plymouth County government, in 2010, Plymouth County Commissioner John Riordan called on the Plymouth County Commission to consider dissolving the county government, stating that “It is an unnecessary third layer of government that the taxpayers should not finance.”   However, that proposal was rejected by the other County Commissioners. Instead, a Charter Commission was created to examine whether County government should continue, and if so under what terms.  Some members of that commission also proposed eliminating County government, but that was voted down.  Instead, a majority of commission members voted to create a charter for Plymouth County.  That charter was presented to the voters, and rejected.  

So where does that leave the Town of Plymouth?  

Unfortunately, there is no legal mechanism for the Town to withdraw from Plymouth County government.  It seems that under M.G.L. c. 34B, the only way cease participation in a county government is for the county government to cease altogether.  However, this can only happen if forced by the State (due to insolvency) or agreed by the County Commissioners.  At present, none of the individuals who have identified themselves as candidates for the Plymouth County Commission have come out in favor of abolishing county government.

The relationship between the Town of Plymouth and the County of Plymouth has seen continued strain over the past decade, and actions such as the leasing of the County Wood Lot to the proponent of a horseracing track is not going to help that.  But unless there is a real grass-roots movement to elect candidates who believe that regional cooperation on environmental, transportation, and economic interests can be accomplished without additional layers of government, the Town of Plymouth will continue to be subject to the dictates of the County of Plymouth.    

1. Why is the county developing it? Is the county in desperate need of funds?

As one of the guiding objectives/requirements of the RFP is that we, Boston South, seek to find a permanent revenue stream to Plymouth County to aid in its provision of services to all 27 Towns in Plymouth County. Yes, they do need additional revenue streams as do most government entities. This would allow Plymouth County the ability to raise funds other than raising costs like court fees and recording costs at the Registry of Deeds that are their main source of revenue currently. Please go online to the County website to see all the services they provide, services that also augment our local town services as well.

Note:  Court and Registry of Deeds fees are set by the State, not the County.  Additional County revenue will not lower any costs incurred by the residents of Plymouth.

2. Were there any other RFPs besides Boston South Real Estate Development Group LLC?

Yes, Of the seven requests for the RFP, 5 were residential or condo developers, one for a sand and gravel and Boston South’s. Boston South being the only respondent of the seven.

Note:  Documents provided by the Massachusetts Gaming Commission have confirmed that Boston South was in contact with the County before the RFP was issued, and knew of its issuance before it occurred, suggesting that the RFP was issued in response to Boton South's proposal, not the other way around.

3. Why a horse track? Is this a guise to develop something else less savory? As this will never go through - traffic studies alone will show that.

Vince Gabbert, one of the principles of Boston South is one of the Nation's most renowned experts on thoroughbred racing and facilities. The RFP goes into further detail on his background and accomplishments. As an expert in this field he strongly believes that there is a market for a world class racing, sports and entertainment complex in the North East United States. And Plymouth may be that place. The initial funds, 4 to 6 million, we have estimated, to explore this concept through a multi year planning process, not unlike what Plymouth went through with Pine Hills. It is based on Vince's professional opinion that Boston South is committing to this long and public process at our risk and our expense. Traffic being one of the many components that will be part of our planning analysis with the understanding that with or without us, Plymouth has a problem at the Long Pond, Rt 3 interchange with traffic. We believe we can find the solution.

Note:  Documents released by the Massachusetts Gaming Commission show that Boston South is focused heavily on the availability of different types of gaming that come with the existence of a racetrack, which would operate whether or not there was actual horseracing taking place.

4. What benefit is this for the Town of Plymouth? Obviously, we won't see the tax revenue.

We feel strongly that Boston South will provide the opportunity for Plymouth and all of Plymouth County to realize a significant increase in jobs, increased tourism and tax revenue from what we believe will be an economic and tourism engine for Plymouth and Southeastern Massachusetts. Through this process we will address and improve not only the existing traffic issues but will go a long way to raise the bar in green strategies unlike any other development to date in Massachusetts. Regardless of whether the Country land is exempt from local taxes Boston South has already committed to paying our fair share of local property taxes no matter what. Current tax revenue from the County woodlot is zero.

Note:  Boston South has since refused to commit to making any payments to the Town of Plymouth, instead saying it will gain benefit by increased meals and hotel taxes from tourism and labor taxes (which do not exist). 

5. Have you taken into consideration our watershed? I'm sure you know that our Pine Barren Forests keep our water purified.

In fact we have! Again, I call your attention to the response to the RFP, particularly the section titled “Environmental Impact Statement” aquifer protection and clean drinking water is a leading concern for Boston South. In it you will find a full preliminary examination of the proposed project site, its benefits as well as impacts. It was prepared for Boston South by a former employee of the Executive Office of Environmental Affairs and the former chief planner for the Cape Cod Commission John Lippman. He is no stranger to Plymouth and its resources. I worked closely with John at the beginning of the Pine Hills development when I was on the Planning Board. In the EIS I would bring your attention to page 13. Benefits of the Project, Bullet 3, The project will provide permanent protection of a large area of land farther to the south as mitigation for the development of the site. Where is this you may ask? And quite frankly with all the environmentalists reviewing this document in great detail why hasn't anyone asked? it's like they have blinders on, LOL.

Boston South is suggesting as part of our mitigation for developing the County Woodlot to offer a significantly more sensitive and environmentally important resource that our partnership currently owns in South Plymouth. And that this resource could provide the citizens of South Plymouth, Indian Brook and the Manomet area a new public well with additional needs for drinking water as well as public open space.

6. Has the County considered other options for building out the lot? Something that can last like walking trails, a botanical garden, nature preserve--a destination for tourists.?

That's exactly what this multi year project will work to determine and everything you just mentioned is on the table as a first step. A quick layout of the process will be helpful at this point. After signing of the lease in June we have 90 days due diligence to do a typical review gathering information such as title research, 21E, soil tests etc. At the end of the 90 days, if acceptable to Boston South, we begin a 3 year due diligence, in which we spend 4 to 6 million over that 3 years studying and ultimately determining what that project may look like. Then Boston South would finalize with the County the terms of the long term section of the lease with increasing payments as multiple uses come on line over the life of the lease of approximately 80 years. This negotiation would coincide with the Town in regards to new property taxes as well. At the end of this 2 to 4 year planning, Boston South would begin the town and state permitting and approval process as happens with all proposed developments in the state. It may require zoning changes, MEPA review, construction plans, multi agency licenses and review and much much more detail as is typical of most large scale projects. It will also have all the public meetings and local board reviews that come with it. The time for this part of the process is anyone's guess, one to two years is not unreasonable. So as you can see there is no rush to development that some would suggest is the case. Instead it's a long 4 to 6 year effort that Boston South is committing to.

Note:  Documents released by the Massachusetts Gaming COmmission indicate that Boston South is seeking to avoid any regulation or zoning review by the Town of Plymouth, instead seeking to have all determinations made by the State and County. 

7. Has the County explored grants and/or funding from the State and/or Federal, CPA, Mass Audubon to preserve/purchase the land?

Boston South will explore with the Town, County, State and federal Government all funding and partnership opportunities that will address the many challenges moving forward from public parks and recreation to Federal funds to specifically address needed traffic and infrastructure improvements.

8. Who ultimately will be benefiting from this project? Besides the obvious developers.

If done right in a full and public planning partnership format, we all do.

Great questions Wendy, this is the constructive dialogue we as a community need!

This is just the start and I hope the 26th of April 6pm to 9pm at Memorial Hall we can provide more information and get important feedback from the Community as we begin this public discussion.

Thank you, 

Loring