Selectmen will allow Duxbury’s town counsel to bill hourly on any legal work they do related to the MacLean’s Way Chapter 40B housing development, a decision they made this week.

Selectmen voted unanimously to support the hourly billing after a discussion Monday with town counsel Arthur Kreiger of Anderson and Kreiger and Judy Barrett, a Zoning Board of Appeals member and chairman for the Board the MacLean’s Way case.

Previously, Selectmen Chairman Shawn Dahlen and Kreiger disagreed on whether the attorney’s work on the 24- unit MacLean’s Way Chapter 40B affordable housing subdivision off Bow Street should fall under the $12,000 monthly retainer the town pays Kreiger, or be separately billed at an hourly rate. Dahlen had said that this was a land use case and should be included in the flat fee, unless it went to litigation.

Chapter 40B is a state law that allows builders to bypass local zoning laws and town committee reviews when developing land, provided that 25 percent of the housing units are kept affordable. Chapter 40B is used in towns that have less than 10 percent affordable housing.

Kreiger and Barrett convinced selectmen that Chapter 40B affordable housing developments were not routine land use cases and that MacLean’s Way, which is in hearings with the Zoning Board of Appeals and has neighbors organized in opposition, was particularly complicated. Also, Kreiger said that this issue will “take up a big chunk of the monthly fee.”

“This is not a typical land use case,” said Kreiger. “It is more like administrative litigation. To do this in the hourly fee is hamstringing me and the board.”

Kreiger said that it was important for the town to have an attorney at all the ZBA hearings, which could range from four to six meetings, in order to both support the board and to make sure the procedures were legal and proper. Also, writing a Chapter 40B decision, with its many conditions was long, complicated and time consuming; these decisions can be as long as 60 pages, he said.

“I think it is fair to do this,” Kreiger said. “The town is getting great service at a real bargain.”

Barrett said Chapter 40B developments are not like other housing developments because of the complexity of the laws, the negotiations between the board and developers, and the decisions that are ultimately made.

“You cannot compare this to other land use cases,” said Barrett. “MacLean’s Way is a new case and there are a lot of issues with it. If it’s going to be treated as part of the flat (legal) fee, I wouldn’t ask for any more help with it.”

Barrett said that the town’s lawyers are indispensable on Chapter 40B cases because they can perform side negotiations that the ZBA is not al- lowed to do under the state’s open meeting laws.

“Which, in this case, could be critical,” she added. 

So far, the town has spent over $2,800 on legal services related to MacLean’s Way.

After listening to Kreiger and Barrett, Selectman Ted Flynn said he supported the hourly billing for MacLean’s Way. Flynn said that Kreiger has saved the town money on litigation by quickly clearing up past cases, including one that had dragged on for ten years, and that he was “confident” that Kreiger’s involvement in this case on an hourly basis was in the town’s best interests.

“It’s a complicated enough case that it is not cut and dried and I think Anderson and Kreiger have done us well so far,” said Flynn.

Dahlen agreed, but added that he was reluctant to spend the extra money and didn’t want to set a precedent that allows town counsel to bill hourly on every Chapter 40B case 

“I think I can live with that,” he said. “I hate spend- ing the money but I want to be supportive of the board. But I don’t want it to be routine.”