Questions Whether a Racetrack Can Legally Operate
Addressing issues such as whether State law allows a racetrack on County Land, whether the Town of Plymouth's approval is needed, and whether Town zoning applies, Plymouth Town Counsel indicates that dramatic changes in State law would be needed to permit horseracing on the Wood Lot, particularly against Town approval. Read the opinion below.
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.
The last we heard from Boston South was immediately after the Town-wide referendum in which the residents overwhelmingly voted against having horseracing in Plymouth. At that time, Boston South sent a letter to the Town indicating that it intended to continue to "explore our main concept" under its proposal to the County, namely horseracing. In short, they issued a challenge to the Town - try and stop us.
People have asked, “Didn’t the letter from the Select Board to the Gaming Commission prevent Boston South from being able to get a license for horseracing in Plymouth?”
The short answer is ‘Yes, under the existing State laws relating to horseracing’. A bit of legal explanation:
The principal statute relating to licensing for horseracing in Massachusetts is G.L. c. 128A. That law says that there can be no horseracing on land owned by the State or its subdivisions such as Counties (G.L. c. 128A, §3(n)), that no license can be granted to permit horseracing unless approved by the town where the racing is to take place (G.L. c. 128A, §13A), and that the county in which horseracing is being proposed has previously approved such activity (G.L. c. 128A, §14). Separate from the licensing law, there is also a statute which prohibits the use of any land for horseracing unless the town where the land is located approves that location. G.L. c. 271, §33. That means that even if a license is granted by the State Racing Commission, a racetrack still can’t be built without town approval.
So if the Town letter stopped Boston South from being able to get a license, why did they say they were still pursuing their racetrack idea?
The answer to this question is ‘Because the laws can always be changed’. A bit more legal explanation:
Right now, G.L. c. 128A is currently set to expire July 31, 2022. That was because in 2011 the State Legislature decided that the law needed to be updated to be in conformance with changes in State gaming law. The legislature originally gave itself until 2014 to come up with a replacement, but evidently no agreement was reached on an updated law by that time. So they extended the deadline for a new law until 2017. When agreement still wasn’t reached, they extended the deadline again, and they have continued to extend that deadline on a yearly basis since. According to State Representative Matt Muratore, the law will continue to be extended until a new law is put in place. The issue is what will replace it.
It is always possible to change the law so that at some point in the future Boston South is able to seek a license and site approval for a racetrack even without Town approval. Having now agreed to lease the Wood Lot, no doubt, Boston South is already working to promote ( i.e. lobby for) such legislation. After all, these restrictions are standing in the way of potentially hundreds of millions of dollars in profit. And as Boston South’s statements have made clear, they don’t care that the residents of Plymouth don’t want a racetrack.
To counter that expected effort, we need to be in a position to exercise all of our options, both political and legal. That means at a minimum:
1. Lobbying our legislators to maintain the requirement for Town approval of any racetrack location as part of the licensing process.
Right now, the Gaming Commission is considering a new Horseracing License Application (a copy of which can be seen below). The proposed application does contain a question as to whether the applicant has obtained permission from the town where racing is proposed (Section 4). We need to let the Gaming Commission now that we insist that question remain, and that Town approval continues to be required before any license is granted. Even though the time for formal public comment has passed, residents should still make their position known. Comment can be made by sending an email directly to directly to MGCcomments@massgaming.gov with ‘Horse Track Operator License Draft Application Form comment’ in the subject line.
2. Supporting candidates who support us.
Residents should demand to know what any candidate for office, State, County, or Town, plans on doing to keep control of what happens to the Town of Plymouth in the Town of Plymouth.
3. Preparing for alternative means to challenge any permit application.
We need to know what other restrictions Plymouth has at its disposal (zoning, utilities, public safety, traffic, etc.) to prevent this type of development in Plymouth should a racetrack license be approved over our objection.
Given the financial resources Boston South has at its disposal and its stated intention to proceed over our objection, Plymouth cannot take a simple ‘wait and see what happens’ approach to this issue. We must be proactive. We have long seen that as soon as we become complacent, those who seek to profit at our expense will take advantage. Let’s not let that happen again.
Despite the overwhelming rejecting by the residents of a horseracing facility in Plymouth, Boston South has nonetheless sent a letter to the Town indicating that it intends to "explore our main concept" under its proposal to the County, namely horseracing. Their stated rationale for this decision is that it may provide "long-term revenue streams to benefit the County and its citizens." So much for their original representation that they would not seek to impose something on the Town of Plymouth that its residents didn't want.
As voted by the Select Board on June 7, 2022, the Town has issued a letter to the Massachusetts Gaming Commission formally advising them that following a properly noticed public hearing, the Select Board has voted not to approve any application for horseracing, or ancillary gaming, for the County Wood Lot.
Following the Select Board Meeting on May 24, the Town has issued a letter to the Massachusetts Gaming Commission advising them that the Town has not issued a letter of support for a horseracing track in Plymouth. The Town further advised that per the applicable Massachusetts statutes, a formal public hearing will be taking place on June 7 to discuss the issue, but that given the recent overwhelming town vote to reject horseracing at the Wood Lot, the Select Board would be following that guidance. In short - the people spoke, the Select Board listened, and the Town acted. That's the way government should work.
1. The documents show that members of the Boston South Group are on a first name basis with members of the Massachusetts Gaming Commission, which is working to actively promote the Boston South proposal.
2. The documents show that Boston South had advance knowledge of the County RFP, and had already made plans before it was issued suggesting that they knew they would be the ‘successful’ applicant.
3. The documents show that Boston South is looking for ways to access and use the Race Horse Development Fund (which comes from gaming revenues) even prior to starting racing.
4. The documents show that Boston South has been focused on the gaming aspects of the site for both pari mutual wagering (betting on races outside of Massachusetts, even globally), gaming machines (so-called 'historical horse racing' - see the explanation below) and sports betting.
5. The documents show that Boston South is trying to circumvent the requirements of G.L. 128A section 13 which refers to the requirements that in order to get a horse racing license you need approval by the Select Board of the specific activity and location as set forth in G.L. c. 271 section 33. Instead, they are trying to argue that because this is County land all they need is a County vote under G.L. c. 128A sec. 14, which says that horse racing cannot be held unless approved by a majority of voters in a county referendum (note – that statute is only in effect until July 31, 2022, and is being replaced because it also refers to dog racing which has since been banned in Massachusetts).
6. The documents show that Boston South is trying to circumvent Town zoning by placing the gaming areas on land zoned Industrial and all horse-related activities on the residential portion of the parcel and claiming they are an agricultural use.
In the documents showing some of the exchanges between the Massachusetts Gaming Commission and Boston South, the developer asks about using 'Historical Horse Racing Machines' at its proposed Plymouth racetrack. These machines are a form of gaming which falls somewhere in the gray area between slot machines and betting on horseracing (pari mutual betting).
Also known as "instant racing," historical racing machines (HHR) look and operate much like slot machines. However, instead of betting on a purely random outcome, you are betting on on previously run horse races (in some states, you can also bet on previously run dog races). On these machines, you bet on the outcome of horse races, just like you would at any Off Track Betting parlor or horse racing track. You just don't know what race you are betting on; that is randomly selected by the machine from over 100,000 past races. This would seem to be just like a slot machine, except there is some general information provided about the horses running in a "skill graph", which allows you to then handicap the race. Here's how KnowYourSlots.com expresses it:
"The machines are set up so you can choose to watch or replay the actual outcome, if that interests you. Or you can tuck it away and focus on the reels, which simply animate an outcome that coincides with the results of your wager. Bonuses are therefore completely predetermined, as the outcome of the horse race was decided in the past, so the game is just providing slot machine-style entertainment."
The legality of these machines has been repeatedly called into question in the states where they have been used. Those promoting the machines say that because they are based on actual horse races, they are the same as pari mutual betting. Those opposing their use argue that given the randomness of the race you are wagering on and the absence of any real-time information which is essetial to betting on horseracing, this is the same as a slot machine. Who is correct depends on where you are. In some instances the state legislatures have intervened to formally legalize them. In other cases the courts have either upheld or rejected them based on these arguments. Not surprisingly, Massachusetts has yet to weigh in.
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.
Many people have commented on the meeting Boston South held with the public at Memorial Hall. Given the absence of any presentation, and the regular refrain of its principal, Vince Gabbert, "We are still looking into that", not a lot of information was provided. But one thing did become clear, Boston South is stepping away from some of the promises it made earlier:
1. Boston South previously said that it would not seek to utilize any “zoning loopholes” (yes, that is a direct quote), such as citing to county ownership of the Wood Lot, to avoid Town zoning. At the presentation last night, Mr. Gabbert would not reaffirm that statement, and instead said that Boston South would review the law and would do what was required of them.
2. Boston South previously said they would make payments to the Town even if they didn’t have to pay property taxes, meaning that they would enter into what is typically referred to as a Payment in Lieu of Taxes (PILOT) agreement with the Town which, given county ownership of the property, is the only way the Town would receive any ongoing payment from the developer. At the presentation last night, Mr. Gabbert would not commit to entering into such an agreement with the Town, saying only that Boston South expected the Town to benefit from meals taxes, labor taxes (which we do not have), and increased tourism.
3. Boston South previously said that if the Town residents didn’t want the racetrack they wouldn’t proceed. At the presentation, Mr. Gabbert not only said that they wouldn’t be dissuaded if the Town voted against horse racing in a non-binding referendum, but also that they would not withdraw their proposal even if the current Select Board declined to give them a necessary letter of support for their racing license.
I offer these thoughts not as a criticism of the merits of a project that has yet to take shape, but rather a reminder to the residents that in making your decision not to focus too heavily on promises made. Different representations have been made at different times by different members of the development team to our Town representatives and to the people. I and others have taken notice of these contradictions, including members of the Select Board. If Boston South executes a lease with the county at the end of June, they will have 3 years to decide what positions they will take regarding how they engage with the Town before deciding whether to try to proceed with a particular development proposal. This will include whether other factors (such as the potential availability of State funding and gaming revenues) make it more profitable for them to act in a manner against the Town’s interests. As Mr. Gabbert said several times, everything is on the table.
It seems that despite the fact that the land in question is owned by the county, the Plymouth Select Board still has a great deal of power in deciding whether or not a racetrack proposal can go forward. The reason is that under State law, they have the initial authority to decide whether or not Plymouth will allow horseracing. Under M.G.L. c. 128A, §13, for a license for horseracing to be issued, the applicant needs to obtain the approval of the Town called for under M.G.L. c. 271, §33:
"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 mayor and city council, the town council in a town having a town council or the selectmen in any other town, who may regulate and alter the terms and conditions under which the same shall be laid out, used or continued in use and may discontinue the same when in their judgment the public good so requires…"
Absent such approval, no license should be issued by the State. But the Select Board also has the authority to allow others to become involved. Because State statute allows the Select Board to regulate the conditions under which it would vote to allow a horseracing track, they can also require approval of any other Town body, or even the residents themselves. The Select Board decided to place the issue on the ballot as a non-binding referendum question. The result - 88% of the voters rejected the horseracing proposal.
There is also another statute which is applicable, M.G.L. c. 128A, §3(n), which provides:
"No license shall be issued to permit horse or dog racing meetings to be held on premises owned by the commonwealth or any political subdivision thereof."
As the Wood Lot is owned by Plymouth County, which is a political subdivision of the State, no license should be allowed for horseracing on this lot. However, this statute is only in effect until July 31, 2022, after which time it is being incorporated into new regulations, Whether those new regulations will include this particular language is unclear at this point.
Finally, there is the issue of zoning. The Wood Lot is zoned approximately 1/3 Light Industrial and 2/3 Rural Residential. In most instances, to operate a racetrack, the property would have to be rezoned. However, the developer has suggested that it believes that because this is County property, it is not subject to Town zoning restrictions because County land is exempt from local zoning restrictions. However, they have not provided a legal memorandum to that effect.
The courts in Massachusetts have ruled that such exemption is not absolute, but rather applies only when the property is being used for an “essential governmental function.” Greater Lawrence Sanitary District v. Town of North Andover, 439 Mass. 16 (2003). That has typically meant construction of municipal facilities (courthouses, jails, government buildings, etc.). It has never been applied to the mere lease of property to a commercial entity in order to raise revenue (although that issue has never been expressly decided). So if there is a proposal which does not comport with our local zoning, either the developer will have to seek re-zoning approval or provide a legal basis to circumvent our zoning by-laws, and if the Town disagrees the matter would likely proceed to court.
Barring approval of their argument, the developer is trying to see if it can place the gaming portions on the land zoned light industrial and the horse-related activities on the land zoned rural residential as an agricultural use allowed in that zone. The Town of Plymouth can try to prevent this by either banning horseracing altogether or simply excluding it from the agricultural use bylaw.
The final takeaway from all of this is that the Town of Plymouth is not without recourse. But knowing that the developer is actively looking for ways to avoid having the Town govern any aspect of this proposal, the Town must take whatever actions it can to ensure that decisions are not made without its agreement.
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.
Q: Where is the land at issue:
A: It is +/- 110.5 acres located off of Camelot Drive and Long Pond Road behind The Grove (formerly The Shops at Five); 63 Camelot Drive (106.248 acres called the Original Woodlot), 0 Raffaele Road (2.28 acres called the Balboni Lot), and 144R Long Pond Road (2.969 acres called the Silva Lot). These three parcels are now collectively called the County Wood Lot. If customers can’t find it, it doesn’t exist. Clearly list and describe the services you offer. Also, be sure to showcase a premium service.
Q: Who owns this property?
A: It is owned by Plymouth County (which is a separate governmental entity from the Town of Plymouth). They purchased the Original Woodlot in 1917, and then added the adjacent Balboni and Silva Lots in the last few years.
Q: Why is the County looking to build a racetrack?
A: The County is not looking to build the racetrack, it is a private developer that has made that proposal. On January 14, 2022, Plymouth County issued a Request for Proposal (RFP) asking for submissions regarding potential uses for the County Wood Lot. Six entities requested copies of the RFP, but only one, Boston South Real Estate and Development Group LLC (Boston South) submitted a proposal along with the required $25,000 fee.
Q: Why am I hearing different things about what is being proposed?
A: Because the proponent of the project, Boston South, has given different information to different groups.
In their written proposal to Plymouth County, Boston South indicated that it wanted to investigate the potential for building a thoroughbred horseracing track on the site, stressing its connections to the thoroughbred racing and gaming industry. Boston South indicated it would look to partner with other entities that might want to build other facilities (such as hotels) or to hold events at the racetrack (such as minor league soccer or concerts), but horseracing was the cornerstone of its proposal.
On March 25, 2022, Boston South made a presentation to select elected officials, appointed representatives, and staff of the Town. As I was not present for that presentation, I can only report what I have been told – which is that at the presentation, Boston South stressed that it was looking to determine the best possible use for the Wood Lot. A horseracing track was one consideration, but not the only one. This is very different from the language in their proposal to the County, which evidently was not providced to the Town.
On March 29, 2022, a representative of Boston South, Mr. Loring Tripp, appeared at the Select Board meeting to discuss the Boston South proposal publicly for the first time. However, Mr. Tripp, who is not identified as a financial partner of Boston South in its proposal, did not make any formal presentation regarding the proposal, nor did he provide any statement specifying exactly what options Boston South was considering.
Q: So what is it, a horseracing track, a conference and entertainment center, a sports complex , something else?
A: Right now, it is nothing, just an idea. Boston South has been given a lease by Plymouth County to investigate the site and determine what, if anything, it will actually propose. However, even though Boston South continues to waffle on the issue, looking at the proposal they submitted to Plymouth County, and their subsequent statements, Boston South has indicated that its intention is tfor “the anchor activity on the site to always consist of Thoroughbred racing and racing-related activities.”
Q: If Mr. Tripp wasn’t going to make a presentation, why was he at the Select Board meeting?
A: Boston South was asking the Select Board for a letter of support to use in its discussions with State agencies to seek the licenses they need.
Q: Did the Select Board provide the letter of support?
A: Yes, by a vote of 3 in favor (Quintal, Cavacco, and Bletzer) to 2 against (Helm and Flaherty).
Q: Did the Select Board approve a horseracing track?
A: No, they did not. Those who voted in favor of the letter of support stressed that they were only approving a statement supporting the right of Boston South to perform an investigation of the site to identify the challenges associated with developing the site and determining its best use.
Q: So what exactly did the Select Board approve?
A: They approved a letter indicating that, in concept, they were supportive of an unspecified project. Here is the actual text of the motion made by Mrs. Cavacco:
"I move that the board express support for the conceptual project of a sports and 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 bylaws."
The motion does not refer to approval of a horseracing track or express support for any particular proposal.
Q: Why did the Select Board agree to offer support where so many people were opposed to a horseracing track?
A: Again, the Select Board did not offer support to a horseracing track, they offered support for a potential “sports and entertainment complex”, which was evidently one of the proposed uses suggested by Boston South at the March 25, 2022 presentation to Town officials. However, as the developer has now tried to use that letter as an expression of support from the Town for horseracing, a new hearing is being held to comply with the applicable statute before issuing another letter making clear that horseracing is not approved for the Wood Lot.
Q: If the Town decides that it doesn’t want horseracing, can it stop this proposal?
A: The best answer to this question is maybe. Sorry, but the explanation is legal and a bit complicated.
The Wood Lot is zoned approximately 1/3 Light Industrial and 2/3 Rural Residential. In most instances, to operate a racetrack, the property would have to be rezoned. However, the developer has suggested that it believes that because this is County property, it is not subject to Town zoning restrictions. That is because under State law, use of property belonging to State created entities (which include counties) may not be restricted by local zoning. However, the developer has yet to provide the legal support for any assertion that it can benefit from that law.
The cases on the subject state that exemption from local zoning applies only when the property is being used for an “essential governmental function.” Greater Lawrence Sanitary District v. Town of North Andover, 439 Mass. 16 (2003). “The doctrine of essential governmental functions prohibits municipalities from regulating entities or agencies created by the Legislature in a manner that interferes with their legislatively mandated purpose, absent statutory provisions to the contrary.” See Bourne v. Plante, 429 Mass. 329, 332, (1999), quoting County Comm'rs of Bristol v. Conservation Comm'n of Dartmouth, 380 Mass. 706, 710 (1980). “The scope of the immunity is broad and [extends] to leased property and facilities.” Id. at 713. It also applies to entity actions that are “reasonably related” to fulfilling the entity's essential governmental function. Bourne v. Plante, supra, citing Village on the Hill, Inc. v. Massachusetts Turnpike Auth., 348 Mass. 107, 118 (1964), cert. denied, 380 U.S. 955 (1965).
The cases that have examined whether an entity was engaging in an essential governmental function by undertaking a certain activity are principally focused on whether that activity was part of the enabling legislation creating the entity. But Plymouth County was not created by enabling legislation – it existed long before that legislative process. It also does not have a charter. Instead, it is a statutory county, meaning it exists only per State law.
Looking at the applicable statutory language (M.G.L. c. 34 sec. 14), the authority granted to every county regarding use and disposition of its property is generally vague: “They shall have the authority to represent their county, and to have the care of its property and the management of its business and affairs in cases where not otherwise expressly provided; to sell and convey any real estate of the county by deed, or to lease any real estate…” But merely because a County has the right to lease its property does not necessarily mean that doing so is an essential governmental function. To the contrary, recent cases from the State’s highest court, the Supreme Judicial Court, suggest that only where the end use of the land is for an essential governmental function (such as construction of a governmental facility or for use in performing a public function) will the zoning exemption apply.
Further, in order to build the facility called for in the Boston South proposal they will need to buy or lease additional parcels of land around the Wood Lot (for things such as access and parking). This would likely trigger some type of re-zoning requirement which would have to be approved at Town Meeting.
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.
Mr. Tripp has made repeated reference to Boston South's Proposal submitted in response to the County RFP, but that proposal has not been made widely available to the public. I have summarized it below, but it is now available on the Town's website. Click below to be redirected.
The property is commonly known as the County Wood Lot or just Wood Lot. It is a 106 + acre parcel located about 1 mile from Exit 13 (Old Exit 5) off of Route 3, between Long Pond Road and Camelot Drive. Approximately 86 acres of the Wood Lot are zoned rural residential, and the remainder is zoned light industrial.
The Wood Lot has been owned by Plymouth County since 1917. It was originally used for timber harvesting and gravel supply. As a result, a large portion of the Wood Lot is cleared of trees, and a 7.7 acre gravel pit also remains on the site. When those uses stopped, no restoration was performed on the property. Subsequently, the Wood Lot was bisected by construction of high voltage power transmission lines.
The Request for Proposal:
On January 14, 2022, the County issued a Request for Proposal (RFP) soliciting interest from parties who may wish to lease and develop the Wood Lot. The RFP was written very broadly; no restrictions were placed on what proposed uses would be considered. Instead, the County asked only for submissions which might identify the best use for the property. However, it has since come to light that the group proposing the racetrack, Boston South, had previously been in discussions with County officials, suggesting that this RFP was both prompted by, and written for, Boston South. This is further supported by the fact that while six developers obtained copies of the RFP, only Boston South, submitted a proposal.
The Racetrack Proposal
As has been reported, the Boston South proposal is to construct a horse racing track and “entertainment” complex on the Wood Lot. The focus of the development would be the track and ancillary facilities (paddock, stables, veterinary space, etc.). Additionally, the development could include one or more restaurants, function space, and shops. The racetrack would operate mostly in warmer weather months. In some of the “off-months”, facility would be used for horse training. Additionally, the developer has suggested that the facility could be developed for “flexible” uses such as minor league sports and concerts.
In order to make the Wood Lot suitable for this type of facility, some of its physical characteristics would change. A large number of the remaining trees would have to be removed, the gravel pit would have to be filled, and the power lines would have to be moved underground. To address the impacts of such activities, the developer has made some preliminary proposals.
To offset the effects of the tree removal, the developer has proposed to provide the Town with other parcels which can remain undisturbed.
As for the effect on the neighborhood, the proposal identifies what the developer considers the most serious impacts of the project - traffic, noise, lighting, and sanitary conditions. On these areas, the proposal is vague. There are some general suggestions, but the crux is that the developer is saying that it needs to study the issues and come up with solutions.