Clapboardtree meadow

RESPONSE TO WHITE AND BECKER COMMENTS ON CLAPBOARDTREE MEADOW

To the Editor:

I have read the letters from David White and Kevin Becker recently printed by you, and I would like to respond to several of the points and unfounded assertions that were made therein. I have known David for 40 years; he clerked in my law firm as a co-op intern when he was still a student at Northeastern Law School, and we worked together on many matters over the years. He is a strong and effective legal advocate, and a competent attorney. He is not, however, a land use attorney; he has practiced for many years as a personal injury lawyer. I thank him for his efforts on behalf of the Town while he lived here, but in this instance I think he is off base. Mr. Becker, who I worked with on the Devil’s Den matter to protect that area, is a longstanding resident of the Town and a person who has been active in a very positive way in civic affairs, but he is not an attorney or land use expert. He has likewise has opined on the subject of the donors’ intent. I believe these letters misstate some of the key facts and legal concepts at issue.

I am a land use and conservation attorney, and have been for over 40 years. Land conservation and environmental protection have been a primary focus of my legal career.

At David White’s request, 25 years ago, my firm was hired to draft and file the corporate documents that created the Westwood Land Trust. I have served as a board member or attorney for many land trusts and environmental organizations. In my career, I have represented dozens of land trusts as well as the Massachusetts Audubon Society and other environmental non-profit organizations. As an attorney, I have advised dozens, if not hundreds, of non-profits and individuals in creating and enforcing conservation and agricultural preservation restrictions, and I have represented many municipalities and state agencies in land use protection efforts, including, among others, the Massachusetts Department of Agricultural Resources, the Department of Environmental Protection, and the Department of Fish and Game, and I have been engaged as counsel on federal conservation land acquisition efforts by various federal agencies, including the Department of the Interior and the Fish and Wildlife Service. I am setting out my bona fides to give context to my opinion, as I think my decades of experience gives me a valuable perspective on this controversy.

I live on Milk Street, around the corner from Bean Farm and the meadow in question, in the historic 1760s era Frick farmhouse, in an area of Westwood that was historically home to many farms and dairies. The Frick farm was one of Westwood’s last surviving dairy farms, into the 1940s or 50s so far as I am aware. Unfortunately, it is no longer a farm. Like all the other farms in town, but one, it is long gone. Like many residents, I value the open space open space on Clapboardtree Street, including driving by last small herd of cows in town. But the Clapboardtree Meadow is not the only open space there, it is next to the open space preserved by the Bean Farm next door. They enhance each other. It would be a great loss to see the Bean Farm developed as housing, and this, if it happens, would adversely affect the conservation values preserved by the Meadow. To my knowledge, the small Bean farm is the last working farm in Westwood. It is worth preserving, and, if it does not survive, we are likely to see yet another collection of McMansions in its place.

Our town’s 300 year agricultural heritage is worth cherishing, no less than other open space uses. In fact, while I have not researched this specifically, I am sure the Meadow was farmed in the past, for crops or pasture, likely for 200 years or more. Preserving agriculture often is a primary means and goal of open space preservation; the goals of agriculture and open space conservation are not necessarily mutually antithetical, and they are not in this instance. I also doubt that the meadow is in anything near its “natural” state. It was likely originally mixed climax forest and associated wetlands, until it was cleared in Colonial times for lumber and farm and pasture (unless it was previously cleared by indigenous people using fire, as was common in New England in pre-Colonial times). If left alone it would probably follow a successional path back into mixed second growth forest, `just as has happened over the last 80 or 100 years in nearby Lowell Woods off Gay Street, and as is happening in the meadow at the corner of Gay and Fox Hill Streets, which is now hardly a meadow, as second growth fills in. All of these were unquestionably open farm and pasture land in Colonial and post-Colonial times. In this climate, if you want meadows, you cannot simply leave the land alone, it needs to be managed as open space, by mowing or farming or by controlled burns. To conclude that the conservation restriction required leaving the meadow in its “natural state” makes no sense, if what we want is to preserve un-forested open space. Left alone, it will become scrub and eventually second growth forest.

Open space, a laudable goal, is no less preserved by allowing appropriate farming than by straight on “preservation.” In fact, if farming is done sustainably, with proper techniques and buffer areas, it can sometimes increase or improve conservation values such as biodiversity and soli structure. Farming does not necessarily impair either open space goals or other conservation values. Farming is merely one valid means of preserving open space.

In the letters, the authors go on at length about the intent of the donors. I do not purport to know what was in the McFarlands’ minds at the time of the donation. I suspect there were many considerations to balance: perhaps tax benefits, civic virtue, and a love of open space to name a few. But that is immaterial. As a matter of law, we do not go there when we seek to discern the intent of the donors, unless the document is ambiguous, and it is not. By its specific terms it allows agricultural uses. The inclusion of agriculture as a conditional use conclusively demonstrates intent to reasonably allow it, and this is the end of any inquiry. You can’t include a term and then later deny you intended to include it. One cannot consider using extrinsic parol evidence to discern intent unless the restriction is unclear on this issue. I expect Judge Connolly of the Norfolk Superior Court to follow settled law in this regard, and refer solely to the clear terms of the document in construing intent.

Both writers state that the Land Trust has discretion to disapprove agricultural uses. This is correct so far as it goes, but misleading. Their discretion is not unfettered, far from it: the restriction specifically requires the Land Trust to allow agricultural use in the exercise of its reasonable discretion. I understand that that the Land Trust has made it clear that it will never even consider, let alone approve, any agricultural use. This position is per se unreasonable.

The writers opine that the 2001 Town Meeting approval of Article 33 allowing for “conservation and passive recreation” only on the land “extinguishes the right to farm the land by anybody.” I disagree for two reasons. First of all, farming, done correctly, as noted above, can achieve and enhance conservation values, so it can be considered a conservation use, allowed by the vote. But more to the point, the conservation restriction was granted on May 1, 2000, and it was recorded on May 12, 2000. The 2001 Town meeting was held in May of 2001, a year later. The Town Meeting could not extinguish any terms of the restriction granted over a year previously, without a formal written amendment of the restriction by the parties to it, which would then have had to have been approved by the Massachusetts Secretary of Environmental Affairs. By implication, Article 33 required accepting the conservation restriction as written. The Town Meeting vote could not as a matter of law override the contractual rights of the parties or the terms of the document previously approved at the state level. The assertion that farming use was extinguished by the Town Meeting is without merit, as is the claim that Article 33 demonstrates the intent of the voters to prevent agriculture.

Far from “crushing” a local non-profit, which by the way is hardly being crushed, since presumably they are well funded in the litigation by the McFarlands and others, the Land Trust is forcing the Town to expend scarce tax dollars on an ill-considered and unnecessary dispute in order to try to prevent the Town from exercise of its contractual rights. It’s obviously not about the money, it’s about the character of the town and its support for the last working farm within town borders, and keep it from being developed, which would result in a net loss of open space. If the goal is to preserve open space, let’s work together to find a solution that will not result in the Bean Farm land being developed.

As a resident, a near abutter, a tax payer, and a conservation attorney, I support the Town’s efforts to find a reasonable resolution to this controversy. In pains me to publicly disagree with colleagues whom I respect and admire, and to oppose the McFarlands, who have been great benefactors to the Town, but in this instance I think they are all on the wrong side of the issue. I regret the adversarial nature of the controversy, but I support the Town’s position and its expenditure of funds. The intransigence of the Land Trust has left the Town no other choice. I salute the Selectboard for taking a difficult stand. The Land Trust should release its study so the reasonableness of their denial of permission can be evaluated, and then it should forthwith agree to stay the litigation and mediate, so that a mutually satisfactory solution can be at least be explored. I am sorry that this dispute has resulted in expensive and divisive litigation, but I am troubled by the Land Trust’s refusal to even consider a compromise. We should be working this out as neighbors, not litigants.

Peter Fenn