Attorneys letters have been exchanged between the town of Lexington and one of its residents regarding the legality of building the new high school on the land it’s poised to be built on.
The first letter came from Caroline Smith, an attorney who was hired by Peter Kelley, a Lexington resident. That letter argues the town cannot build its new high school on the land it’s slated to build it on — which is currently sports fields — due to deed restrictions.
“I had this dream, I still have this dream, that they’ll keep the school off the fields,” Kelley told the Observer.
A response letter from Mina Makarious, Lexington’s town counsel, was sent to Smith on Tuesday. That letter argued those deed restrictions were lifted in 1961, so the town can legally build on that land.
“We disagree on an implication that the legislature can’t do this and we disagree that the legislature wouldn’t do this,” Makarious told the Observer.
Kelley did not hire Smith because he intends to sue the town, he said. He hired her to find answers to a question he has asked the town multiple times over the past year, but to which he has not received an evidence-based answer: is it legal to build a school on the high school campus’ sports fields?
His curiosity stems from not wanting the town to build on the fields because he believes the current layout of the high school campus serves the town well, and the fields are nostalgic to him.
“[The School Building Committee] wants to throw away the Little League field…I played little league on that field, My kids played Little League on that field, and in the spring, I saw my grandkids play games on that Little League field,” he said. “There’s a part of life in growing up in this town that stays with you forever. I remember myself in the ’50s marching down Mass. Ave. to get to the little league field. I mean, these things are part of what this community is, right?”
Smith’s research found that some of the land on which Bloom (the name of the design for Lexington’s new high school) is slated to be built was deeded to the town by the late Augustus Scott, who lived in Lexington, in 1914, and again in 1915. Those deeds state the town must reserve the land for a public park or playground.
Smith argued that because of those deeds, the town will likely not get approval from the state to make an ‘Article 97 swap’ so it can build on the land.
Article 97 refers to an amendment of the state’s constitution that establishes the right to a clean environment including its natural, scenic, historical, and aesthetic qualities. Article 97 also states land that is subject to Article 97 can’t be used for other purposes without a two-thirds roll call vote of the state legislature.
Municipalities can apply to swap green space that is protected by Article 97 to build on it and are often granted approval as long as they abide by the state’s guidelines. Simply put, those guidelines require municipalities to give adequate consideration to their projects and replicate at least the same amount of green space they’re removing elsewhere.
“It is our opinion that compliance with Article 97 will not remove these restrictions, and there is no alternative way to remove these deed restrictions,” Smith’s letter states. “As such, the restrictions prohibit the construction of a high school on the property.”
Makarious’ response letter argues Scott’s deeds are unenforceable, however. Lexington was released from any restrictions imposed by those deeds by the Trustees of Tufts College (the group that had control over Scott’s assets) in February 1961. The state Legislature confirmed that release and authorized Lexington to use that land for “school, playground or recreational purposes, and for all purposes incidental thereto.”
“We are currently considering what effect the legislation has on the need for further approvals,” Makarious said.
Kelley’s legal team didn’t find the information about the restrictions Scott’s deed imposed being lifted in 1961, he told the Observer. “None of that came to light on our side,” he said.
Lexington has been in communication with the state’s Executive Office of Energy and Environmental Affairs, which reviews Article 97 applications, for guidance on the process of applying for an Article 97 land swap, Makarious told the Observer.
Article 97 land swaps happen on a relatively regular basis, Makarious said. Most municipalities are able to sucessfully make Article 97 swaps if they comply with the state’s guidelines. The public can view a tracker that shows what applications the state is considering on its website.
The town has shown it has adequately considered its design plan by hosting over 200 public meetings and by planning to build new sports fields where the current school is located, in compliance with the state’s one-to-one green space rule.
The state has not brought up any possible legal issues with the Article 97 land swap yet, Makarious said.
Kelley said he is “willing to accept what Mina said” in his response letter to Smith. Though he wishes the town could have done this research and gotten him an explanation earlier.
Makarious’ findings don’t change Kelley’s overall opinion of the project, too. In fact, his stance on protecting the fields has strengthened since Smith uncovered historical information about Scott. Now, not only does he want to protect the fields because he believes they’re an asset to the town and hold nostalgic value, but also because he believes honoring Scott’s legacy is the right thing to do.
“I respect Augustus Scott, and I respect the intent of 110 years ago,” he said. “But more than that, I respect the value that it has for our citizens today.”
Ultimately, the town does not foresee there being any legal issues with building the new school on the campus’ sports fields. In fact, the town may not have to submit an Article 97 application at all, Lorraine Finnegan, an architect at SMMA, the architecture firm on the project, said during a public meeting Wednesday.
Lexington planned to submit its Article 97 application on Aug. 28, but it hasn’t because “some additional information came to light about a legislative action that occurred at the site that may, in fact, eliminate the need for an Article 97 application,” Finnegan said. She did not elaborate on what that additional information was.
“We are trying to make sure that we take that to ground and understand the impacts of it, and the reality of it, and the validity of it before we upload,” she said.
The timeline of the Article 97 submission will be further discussed at the SBC’s meeting on Monday.
I’ve heard opponents of the LHS project state that it’s the teachers, not the building, which make for a great school. If you follow that logic, it’s the people, not the field location, that make for great Little League memories.
Meg:
I follow that logic 500% — glad we agree on something.
Besides the great teachers which we ALWAYS need, we also need a new High School ASAP, but Bloom, if ever built, is a disaster for Lexington for 3 reasons:
(1) Bloom, sized for 2,395 students, fewer than we now have, is too small: we may have over 4,100 new MBTA dwellings within 10 years (1,150 in 11 known projects at https://www.lexingtonma.gov/1496/MBTA-Communities-Zoning plus those on https://docs.google.com/spreadsheets/d/17OpIfyFsvGyrz8u_fQ5nhWYk7rnEDml4/edit?usp=sharing&ouid=116971253884586510151&rtpof=true&sd=true), which will increase Lexington’s population (now 12,000 households) by 30%, so spending $660 million to accommodate only today’s enrollment makes no sense,
(2) Bloom is too expensive, which will limit our ability to hire great teachers, and
(3) the SBC never studied a true 2-phase design, to alleviate LHS’s overcrowding sooner than Bloom and to accommodate many more students than Bloom can once its 2nd phase is completed, all of this at less cost.
It doesn’t look like either law firm covered themselves with glory here. The first firm sent a threatening letter, apparently without having done their homework first. It blew up spectacularly on them. The town’s firm effectively countered them, but with facts they should have known years ago. Now the town is in the awkward position of claiming they don’t need an Article 97 filing they have long been planning, and have made preliminary filings for.
“Can anything get in the way of Bloom?” That could almost be the title. At this point, it feels like a train without brakes.
Yes, LHS needs upgrades and a proper STEM building—but not complete demolition. Even privately funded universities like MIT and Harvard preserve their “nostalgic” buildings while adding new facilities.
Here in Lexington—the most historic town in the U.S.—we should do the same. Preserve the town’s charm. Add without destroying. Let residents continue to enjoy the central open space, gifted to us more than a century ago.
And spend public funds responsibly… (aka, as you own)