Is The Westwood Land Trust Behaving Reasonably?

480 people have signed and helped promote a petition supporting the Select Board’s action on behalf of Westwood Town Residents; I think it shows that there is substantial support for the Select Board’s decision and for the hope that the Bean Farm will be successful and continue operating in our community.

The Land Trust and their supporters have made a number of statements that the Bean family does not “have the right” to farm the subject conservation land. As detailed in the previous update, that is a fact that is not disputed.

The question that is being litigated is what are the rights of the Land Trust and the Town regarding the use of this conservation land. The first part of the answer is in the Conservation Deed itself. At the risk of being repetitive, I will again quote the deed:

The Conservation Restriction as recorded in Norfolk Registry of Deeds, Book 14153 -- specifically pages 231 and 232 – in part reads as follow:

9) “Subject to the approval of the Grantee, and pursuant to a conservation management plan, or other standards as may be established from time to time by Grantee (which may, without limitation limit or regulate the permissible time(s), extent and methods to be utilized):

c) Agricultural activities, including in connection therewith, and without limitation, the use of fertilizers and herbicides, clearing, plowing, planting and similar agricultural activities and (but only with the consent of all of the owners of the Premises, which consent may be withheld by any owner at its sole discretion) the construction and use of a roadside farmstand or similar structures.

I am not an attorney, but my understanding is that the Grantee is the Westwood Land Trust, and the owner is the Town of Westwood. In this case, the Grantee is refusing to permit the land to be farmed as is Land Trust’s right; the owner is approving farming on the land and seeking the Land Trust’s permission as is required based on paragraph 9 above.

The Select Board on behalf of Westwood’s residents has exercised their right to grant their permission to allow farming on the conservation land (not necessarily the Beans as the farmers). The language above seems to indicate that it was anticipated that someone may want to use the land for agricultural uses including farming. Why else would this language be included in the document instead of a statement prohibiting farming?

It may appear that this is a simple case, and that the Land Trust is simply exercising their right to withhold approval. However, it is not that simple. The Land Trust right to withhold their approval is not unlimited.

See the Conservation Restriction III Prohibited Acts and uses; Exceptions thereto; and Grantee’s Rights:

E: Notices and Approvals. Whenever notice to or approval by Grantee is required under the provisions of this Section III, Grantor shall notify Grantee in writing not less than 60 days prior to the date Grantor intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment as to its consistency with the purposes of this Conservation Restriction. Where Grantee’s approval is required, Grantee shall grant or withhold its approval in writing within 60 days of receipt of Grantor’s written request therefor. Unless otherwise specifically stated herein, Grantee’s approval shall not be unreasonably withheld, but shall only be granted upon a showing that the proposed activity shall not materially impair the purposes of this Conservation Restriction. Failure of Grantee to respond in writing within such 60 days shall be deemed to constitute approval by Grantee of the request as submitted, so long as the request sets forth the provisions of this section relating to deemed approval after the passage of time.

So, as seen above, the question is the Land Trust unreasonably withholding their consent or are they acting in a reasonable manner in denying the Town’s request to allow farming on this property.

See Section II A Purpose (from the Conservation Restriction Deed):

A: Purpose. The Premises contain unusual, unique or outstanding qualities, the protection of which in their predominately natural or open condition will be of benefit to the public. These qualities, and the public benefits resulting from the conservation of the Premises include, without limitation:

1. The Premises contain substantial wetlands, forests and open fields, providing a diversity of wildlife habitat, including early successional habitat.

2. The Premises, in its natural state, affords views and vistas across its open fields from Clapboardtree Street (a public way), providing substantial scenic value to the public.

3. The preservation of the Premises in their predominately natural or open condition preserves the historical rural character of the area.

4. The Premises constitute land of conservation interest to the Town of Westwood, and the protection of the Premises is consistent with the Town of Westwood Comprehensive Plan, dated April 1999, which advocates preserving , protecting and enhancing the rural character of the Town, its open space and its wildlife habitat.

5. The protection of the Premises will conserve prime agricultural soils, which according to USDA Natural Resource Conservation Service, are present on approximately 10 acres of the Premises, consisting of Paxton fine sandy loam and Woodbridge fine sandy loam soils (Class II).

The Grantor and the Grantee share the common purpose of conserving the natural values of the Premises for the present and future generations.

Reading the purpose of the Conservation Restriction, it seems that a primary purpose is to preserve the open space, views and rural character. I think it is significant to note that no where does it refer to the property as a “meadow”. In fact, line 5 specifies that it “will conserve prime agricultural soils”. If farming was not anticipated, what would be the point in preserving agricultural soils? What would enhance the “rural character” of the town more than a view of farm fields?

The Land Trust is entitled to their opinion that the meadow is a superior rural view from Clapboardtree Street, but it demonstrably not stated in the Conservation Restriction that its purpose is preservation of the “meadow”.

The Lawsuit contains many documents that most people don’t have the time to read, but if you take the time to read it, I think you will be hard pressed to conclude that the Land Trust has behaved in a reasonable manner. In my opinion, Town Counsel Pat Ahearn went over and above in an effort to come to a reasonable compromise, and the Land Trust and its attorney were not willing to even consider a mediation or compromise.

Below is my brief summary of the documents referred to by their exhibit numbers from the lawsuit that lead me to this conclusion:

E. March 5, 2024 Letter from Counsel Ahearn to Karen Manor, President of Westwood Land Trust. Informs her that Town of Westwood wants to allow agricultural use of the conservation land along with a plan for what the Town is requesting.

F. April 3, 2024 Letter from Kenneth R. Berman, Attorney for the Land Trust. This letter states the Land Trust has consulted with EcoTerra Design and Consulting Group and concluded that, for a variety of reasons, the farming proposed would conflict with the Conservation Restriction’s purpose, and so the Land Trust is denying the request. It concludes with a demand that the Town withdraw its request to allow farming within 14 days, and an apparent threat of legal action: “Those parts give the Land Trust the right to enforce the CR by appropriate legal proceedings, including injunctive relief, and to recover its costs of enforcement, including counsel fees.”

G. April 18, 2024,Town Counsel Ahearn’s response to Kenneth R. Berman’s letter, formally requesting the EcoTerra Design and Consulting Group’s report. It includes a statement that the Land Trust approval may not be unreasonably withheld, and that refusing to supply the report may be considered unreasonable.

H. May 20, 2024, Atty. Berman’s response. In sum, it states that the report was prepared for the Land Trust use and its attorney in anticipation litigation based on an implied threat from the Town. As such he considers it attorney-client privileged material. The letter goes on to delineate other reasons the Land Trust will not allow farming, including discussion with other land trusts, biologists, ornithologists, neighbors and residents of the town. In my opinion it is significant that Atty. Berman states: “The Clapboardtree meadow conservation restriction was placed on the land to preserve the meadow “as is” and protect the view as a meadow- this has been confirmed by Duncan and Ellen McFarland, the donors of the conservation restriction;”

I. May 30, 2024, Town Counsel Ahearn’s response. It says “Ultimately, we seek to find a middle ground where both parties can find a resolution that works for all.” It goes on to suggest mediation using Anthony Antonellis, a former Select Board member, Town Moderator and founding member of the Westwood Land Trust.

June 6, 2024 Atty. Berman’s email response. It asks for what claim is to be mediated and says “At the moment, we know of no facts that would give the Town a basis for a judicial reversal of the WLT’s decision, and thus we are wondering what there is to mediate.”

K. June 26, 2024 Town Counsel Ahearn’s response. It suggests that they should mediate whether or not it is reasonable to withhold the evidence that the Land Trust says supports their position. It also points out that it was Atty. Berman that had suggested litigation may be required – not Town Counsel Ahearn. It further states: “It is in any event, in both parties’ interest to avoid the time, expense and publicity associated with a protracted dispute. We therefore hope you will reconsider your position and agree to participate in mediation of this dispute.”

L. July 16, 2024 Atty. Berman’s email response. “Thank you for your June 24 letter. It does not persuade me to recommend mediation.” It suggests that Town Counsel is ignoring the Land Trust’s points.

M. August 29, 2024 Town Counsel Ahearn’s response. It says that if the Land Trust’s concern is that the land will be used for “commercial farming”, then the Town will consider allowing community farming on the property. “We stand ready to discuss any reasonable concerns your client may have.”

N. September 3, 2024, Atty. Berman’s response. It states that the concern is not just commercial farming, the Land Trust would deny any group seeking to use it in a similar fashion. It further states that Town Counsel has still not addressed the Land Trust’s concerns. It questions the propriety of expending the Town’s funds in support of a proposed commercial user.

O. October 8, 2024, Town Counsel Ahearn’s response. “At this time, rather than continue attempting to read the minds of your clients, I would ask under what terms and conditions would your client allow the Town to exercise the agricultural exemption on a mere 8 acres of the property?”

P. November 11, 2024, Atty Berman’s response. “The board of the Westwood Land Trust (WLT) has considered your question and has concluded it cannot consent to an agricultural use on any part of the restricted land.” “The reasons in my letter to you of April 3, 2024 and May 2024 apply to any eight acre portion as they would to any larger or smaller part of the meadow.”

Perhaps the Land Trust and its attorneys have some documents that show that they have tried to resolve this issue in a reasonable manner. But I think anyone reading the record as filed in Norfolk County Court will conclude that that the Town has attempted to work with the Land Trust to resolve the dispute. Also, by refusing to provide the evidence that they claim supports their position -- using the excuse that it is attorney-client priviledged, they do not seem to be acting reasonably. Unless the Land Trust has contradictory evidence, it appears that it was their attorney that first suggested that this may be resolved in court.

Unless I am misreading the Conservation Restriction, there is no reference to the property as a “meadow”. Furthermore, there are several references as detailed above that seem to suggest that farming may be allowed:

c) Agricultural activities, including in connection therewith, and without limitation, the use of fertilizers and herbicides, clearing, plowing, planting and similar agricultural activities and (but only with the consent of all of the owners of the Premises, which consent may be withheld by any owner at its sole discretion) the construction and use of a roadside farmstand or similar structures.

5. The protection of the Premises will conserve prime agricultural soils,

The prime, indisputable fact in this controversy is in the original language of the Conservation Restriction, which is available for anyone to read as I have done.

If the Land Trust, the McFarlands and anyone else in Westwood wants to see a meadow, they can drive down Thatcher Street or Gay Street where there are still meadows (probably due the generosity of the McFarlands and the foresight of the Town in requiring the Fox Meadow development to leave the land on Gay Street open). They could walk, but it is not particularly safe without any sidewalks. However, there is only one farm left in Westwood, and I don’t think we should risk losing it to preserve a meadow view versus a farm field view.

Everyone is entitled to their opinion about this dispute. Mine is that the Conservation Restriction allows farming as the Town has requested, and the Land Trust is unreasonably withholding their approval. Once again, I support the Select Board’s decision to enforce the Towns’ effort to force the Land Trust to comply with the language of the Conservation Restriction and behave reasonably  We will all see if the court agrees.