[Town Meeting] 55 Venner Rd. location.

[DJG]

Well after reading and observing over the past two weeks I must say this has become a hot and contentious issue. I am providing the following without regard to suggesting a position, rather I intend for this to be factual and objective based on the facts at hand. I hope to be heard at the next TM to voice my opinion.

As a licensed Real Estate Broker and Commercial Appraiser I think I should weigh in an a couple points of clarification and facts.I only hope my professional experience can shed some light on the reality of this issue and in clarifying certain prior opinions stated which are somewhat factually inaccurate.

First of all, single family real estate is owned primarily in fee simple ownership meaning an absolute ownership. However, this absolute ownership by definition is subject to such things as taxation, escheat and eminent domain. The bundle of rights inclusive in fee ownership are always to be subject to these 3 items. It is iinaccurate to claim that because someone has their name on a deed means they have absolute right to that property, especially with eminent domain.

The case before us at 55 Venner Road was subject of eminent domain. The concept of eminent domain includes "just compensation" to a fee owner when land is taken or encumbered by an easement and results in a dimunition in value.  As has been factually submitted, the fee owner of this property was "justly compensated" for the eminent domain taking for easement purposes back in the 1940's. The fact that the deed is still in the homeowner's name is not unusual. In fact, it is rare if ever, that a governmental authority exercising eminent domain for easement purposes will take title to the land. It just does not happen. Other more common easements in this area would include a water/sewer line easement. While an exception might exist, it is safe to say a municipality never takes title to land for easement purposes. Which brings us to this issue.

The concept of "just compensation" is a key ingredient in this issue.  This is common law established throughout the US so as to prevent a governmental authority from coming in and taking possession of land, ie land grabbing, without recognizing the fee owner and its value.  This was the case with this property. In contrast when an easement is vacated, it is also common that if a significant value is created that the governmental authority vacating such easement is justifed to receive "just compensation" for the creatrion of value in vacating such easement. Again, this is common law and is standard practice throughout the US.

One issue came up regarding the vacating of a 10 foot easement for the Banknorth branch bank site on Mass. Ave. In this case, it would not result in an increase in value. Being a commercial site, having a 10 foot wide strip of land in front of the building would not increase value and in fact the vacating of that piece of land created a situation where the public good was served in that the building was able to be located further away from the residences behind it.  But be certain that it did not create any additional value as a commercial site. The site could just as easily have been developed as it is now. The difference being that the vacating of the easement allowed the positioning of the building further from tthe adjacent single family homes.  I have appraised sites along Mass Ave in Arlington. This easement to be sure did not create value by vacating a 10 foot strip of land.

The situation at 55 Venner road is complettely different. According to the Zoning Bylaws of Arlington, in an R-1 zoning district which this property is within, there is a minimum lot size of 6,000 square feet.  Thus, a site which has a minimum site size of 18,000 square feet is able to be subdivided "By Right" and be developed with three single family homes. As it has been noted, two homes may be built on this site if the easement were to be vacated.  Be certain that three homes can be built "By Right" if this easement is vacated due to the site size exceeding 18,000 square feet.  This is what happened at Gray Street at the corner of Scituate Street.  "By Right" implies that it meets zoning requirements and there is really no way to prevent a land owner from doing such development, it is "By Right" per the Zoning Bylaws.

As this relates to this situation, the vacating of the paper road lines would thus create a site area exceeding 18,000 square feet.  This in turn could be regarded as something similar to an assemblage, which is the assembling of two or more lots to create single ownership in a larger lot. What this would do would resemble the opposite of an eminent domain taking. This in essence would be a way of creating value. And in Arlington, an average 6,000 square foot single family lot is worth approximately $350,000 to $400,000 if not more. Therefore, there is little doubt that if this lot all of a sudden became a developable site allowing 3 single family homes it would be highly desirable and have an increased value of $700,000 to $800,000.  

>From an appraisal standpoint the question would be with this creation of value to whom this value flows to: The fee owner, the Town or both. This is something that would require significant research and observance of market activity. Nevertheless, it is clear based on my experience that by vacating the paper road lines, significant value is created and in my experience a portion of the value would flow to both the fee owner as well as the Town. The Selectman's substitute motion which in part suggests that an appraisal be performed and that the fee owner pay 50% of the value demonstrates to me they have an objective understanding of this appraisal problem. It is clear they did some homework on this issue and understand that there is in fact value created and that this value flows to both the fee owner and the Town.  While this ratio can be debated and analyzed, the outline of the motion stating a 50% payment of the appraised value appears to be reasonable under these circumstances.

In summation, I think this issue clearly goes way beyond just allowing the current homeowners the ability to accommodate their living circumstance. In talking with the few I have, there is probably little resistance as to whether or not to allow the current owners to be accommodated. The most significant issue before Us as I see it is that by vacating these paper lines a significant enhancement in value is created and for the Town to simply not expect "just compensation" really flies in the face of precedent set across the country as a common practice in easements being vacated.  

As a Town Member acting in the best interest of the Town and in these times of ever increasing pressure on budgets, it would seem derilict for the Town to not act prudently as it represents the Tax Payers of this Town.

I look forward to further discussion of this issue and hope for an amicable resolution to this complex problem.

David Gagnon
Precinct 10

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://seven.pairlist.net/pipermail/townmeeting/attachments/20060514/01be8da8/attachment.html