Response to Attorney Berman

To the Editor:    Attorney Kenneth Berman, counsel to the Westwood Land Trust, recently posted an opinion denoted a "Response to Claims About Clapboardtree Meadow and the Conservation Restriction. "  He referenced my previously posted letter, and he purports to “correct misunderstandings about the Conservation Restriction,” apparently including my statements. I do not believe that I have misstated anything regarding the restriction or the applicable law. He opines that the statement that the Conservation Restriction explicitly lists agriculture as a “permissible use” is not true.  That is correct insofar as it goes, although I never said that, but that is not the proper analysis.  It does not specify agriculture as prohibited either.

To the extent that he attributes that statement to me, that is not what I wrote. What I wrote was that the Conservation Restriction by “its specific terms allows agricultural uses. The inclusion of agriculture as a conditional use conclusively demonstrates intent to reasonably allow it.” The terms conditional use and permissive use are not coterminous. However, to a degree, this is splitting hairs. The Conservation Restriction contemplates allowing agriculture, with approval at the reasonable discretion of the holder, the Westwood Land Trust. That discretion is not absolute. The key word here is “reasonable.”

Mr. Berman goes on to say that agriculture is a prohibited use that may be permitted as an exception under certain circumstances. This is incorrect. The Conservation Restriction does not list "permitted" uses, per se, nor does it specifically prohibit agriculture. It lists "prohibited" uses (Section IIIA) and then in the following Section IIIB lists exceptions to prohibited uses. Section IIIA specifically states that “[a]ll acts and uses of Area 1 and Area 2 of the Premises not prohibited by the subsection A are permissible.” The meadow is within Area 1. Agriculture is not listed as a specific prohibited use, it is thus, in the plain language of the Restriction, “permissible.”

A fair reading of the Restriction in its entirety supports the position that it was intended to allow for agriculture as a conditional use, in the reasonable discretion of the holder. Indeed, one of the five specified purposes in Section II, Purpose no. 5, states that one of the paramount concerns was to “preserve prime agricultural soils.” What is the purpose of preserving prime agricultural soils, if not for their possible use in agricultural activities?

One of the exceptions in Section IIIB8(a) allows for clearing, mowing and haying; Section 8(c) allows for agricultural activities “including, and without limitation, the use of fertilizers and herbicides, clearing, plowing, planting and similar agricultural activities…”; Section 8(d) allows the “pruning, cutting or removal of trees or other plants or plantings, or the removal or invasive or exotic species, and the planting or trees or other plants or plantings”; and Section 8(e) allows for the “use of pesticides or biocides.” These uses are all agriculture in nature, at least potentially, and particularly, clearing, mowing and haying would be generally be considered agricultural uses; they certainly would not be undertaken to preserve the meadow in its so-called natural state. And, if it is not periodically mowed or hayed or cleared, it probably will return to its natural state, or something like it: scrub and second growth forest, not open space.

Of course these uses, or any of them, are subject to the reasonable discretion of the holder, but to claim or imply that the Conservation Restriction was drafted to prohibit agriculture is a material misstatement and a misconstruing of the clear terms and intent of the document. It was unequivocably drafted contemplating conditional agricultural activities, approval of which must, again by the specific terms of the Conservation Restriction in Section III9, “not be unreasonably withheld.” All of this supports the position of the Town and of the Bean family that the possibility of future agricultural activities was contemplated when the instrument was negotiated, drafted and recorded.  Why else include these conditional uses?

Mr. Berman also makes an threat directed at the use of Town resources, and claims that if the Town is unsuccessful in the litigation it will be responsible for reimbursing the Land Trust for its litigation costs, including Mr. Berman's fees.  This is highly unlikely to be true. The Conservation Restriction's Grantor and its successors (ie., the Town) agreed to reimburse the holder for fees and expenses incurred in enforcing the Restriction.   The lawsuit is not an enforcement action.  No one has alleged that the Town is in breach of the Restriction; it has merely sought declaratory relief and an interpretation of the terms of the Restriction.  The only possible breach is that of the Land Trust in refusing to reasonably exercise its discretion, if it is found to have acted unreasonably.   Of course the Town must pay its own attorneys, but I doubt it will ever be required to pay Mr. Berman or to reimburse the Land Trust.

Many of Mr. Berman's  assertions are at best misleading. The question here is not whether the Conservation Restriction allows for agriculture if certain conditions are met and approval is secured. It does. The question is whether the denial of approval has been unreasonable.

Peter Fenn