Clapboardtree Meadow

RESPONSE TO CLAIMS ABOUT CLAPBOARDTREE MEADOW AND THE CONSERVATION RESTRICTION

Because the issues discussed below are the subject of pending litigation, this response is offered solely to correct misunderstandings about the Conservation Restriction and the Land Trust’s role that have appeared in recent weeks in public commentary.

As counsel to the Westwood Land Trust, I have been asked to address several statements made by The Bean Farm and its supporters in the run up to the upcoming special town meeting, as well as statements in the Westwood Minute in a recent letter from an attorney. I am a litigation partner at Nutter McClennen & Fish with many years of experience representing parties in land-use disputes.

Does the Conservation Restriction list agriculture as a permissible use? No.

The Bean Farm has claimed that the Conservation Restriction (“CR”) on Clapboardtree Meadow “explicitly lists agriculture as a permissible use.” Not so. The CR expressly prohibits, among other things, removing existing vegetation, planting vegetation, and using pesticides or biocides—activities that would necessarily occur if the meadow were converted to crop farming.

The only part of the CR that mentions agricultural activities appears in a section titled “Exceptions to Otherwise Prohibited Acts and Uses.” That section provides that otherwise prohibited activities, such as agriculture, may occur “but only if such acts and uses do not materially impair the purpose of this Conservation Restriction or other significant conservation interests.” Agriculture is thus not a baseline permitted use. It is a conditional exception, subject to approval and strict standards.

Has the Land Trust “ignor[ed] the CR’s language or purpose,” as the Bean Farm’s website claims? No.

A conservation restriction is a legally binding easement that permanently limits how land may be used in order to protect specified conservation values. It runs with the land, binds all future owners, and is enforced by a qualified holder, such as a land trust, for the benefit of the public.

Here, the CR protects Clapboardtree Meadow’s “unusual, unique or outstanding qualities” and states that protecting the land in its predominately natural condition will benefit the public. The CR identifies wildlife habitat, scenic values, wetlands, and the land’s natural state as purposes to be protected.

The Land Trust concluded, based on applicable conservation considerations and its review of the proposal, that the proposed agricultural use would materially impair those protected conservation interests. Clapboardtree Meadow is a mature, highly functioning habitat supporting native grasses, wildflowers, and other plants with deep root systems, insects and pollinators that depend on those specific plants, birds that nest on the ground, other birds and mammals that rely on dense cover, and soil organisms that have built up over decades. This ecological system works because it is stable, continuous, and largely undisturbed.

The Land Trust determined, among other things, that the proposed agricultural use would require removing native plants, disturbing soil, altering drainage patterns, and managing the land for crop production on a recurring seasonal schedule; that converting the land to agricultural use would remove natural barriers against, and thus invite, invasive and non-native species; that it would adversely affect nearby wetlands and other protected resources; that herbicides and pesticides would kill beneficial native species of plants, pollinators, and insects and find their way into the soil and groundwater; and that the soil would be worked over and would change. Even The Bean Farm’s own website acknowledges that “There’s a tremendous amount of work that needs to be done to prepare the land for agriculture and horticulture.”

In the Land Trust’s view, converting a mature meadow into a crop field would not merely change how the land is used. It would disrupt, transform, and remove an entire existing habitat, alter soil and water systems that protect nearby wetlands, and create long-lasting adverse ecological impacts, all of which the CR was adopted to protect.

Is this lawsuit in the best interest of Westwood taxpayers?

That is a policy question for residents to decide, but it is important to understand how the litigation is structured.

The Land Trust is a volunteer organization whose purpose is to protect conservation land for the benefit of Westwood’s residents. It did not initiate this lawsuit and did not want litigation. The Town chose to sue after the Land Trust denied approval of a proposed agricultural use that the Land Trust determined would be detrimental to the land’s conservation values. The Land Trust is defending that decision.

The Town is funding this litigation with taxpayer dollars. The proposed agricultural use would not be carried out by the Town itself, but by a private third party under a lease arrangement. If the Town were to prevail in the lawsuit, that private party would benefit from that decision.

But if the Town does not prevail, the CR requires the Town to “reimburse the [Land Trust] for all reasonable costs and expenses (including without limitation counsel fees) incurred in enforcing this Conservation Restriction.” That fee-shifting provision was part of the obligations the Town accepted when it acquired the land subject to the CR.

In practical terms, taxpayers are funding litigation over whether a private party may undertake agricultural use on Clapboardtree Meadow, and taxpayers bear the financial risk of that litigation regardless of the outcome. That reality is relevant as residents consider whether continued litigation serves the interests of Westwood’s taxpayers.

The Land Trust’s role here is straightforward: It is enforcing a recorded conservation restriction for the public benefit, as is its responsibility under the CR.

KENNETH R. BERMAN