Is the WLT acting to Protect the Meadow or Simply to Fulfill the Donors’ Wishes? Shouldn’t the WLT Demonstrate the Same Transparency Demanded from The Select Board?

Is the WLT acting to Protect the Meadow or Simply to Fulfill the Donors’ Wishes? Shouldn’t the WLT Demonstrate the Same Transparency Demanded from The Select Board?

Nowhere in the Conservation Restriction is there any mention of a “meadow”. Yet somehow the Land Trust asks us to accept that they have a duty to protect the meadow.

Contrast that with the explicit language regarding farming (I don’t think I need to repeat it here), with the permission of the Land Trust. The Land Trust argues that farming 665 Clapboardtree Street will destroy the biodiversity that the meadow provides. If the purpose is to preserve the meadow, and farming will destroy the meadow, how does it make any sense that language allowing farming and protecting the agricultural soil was included in the CR in the first place? No one has explained this, and I don’t think they can.

The McFarlands would have us believe that because the Land Trust’s permission was required, it proves that he never intended that farming be allowed (see Oct 10th Letter to Select Board). Again, why didn’t he insist that the Conservation Restriction explicitly state that farming is not allowed if he never intended it?

Is the Westwood Land Trust an independent group of volunteers making decisions based on what is best for the land they are protecting, or are they simply complying with the donor’s wishes?

Why does this matter?

Note one of the arguments presented for why 8 acres of 665 Clapboardtree cannot be farmed was that the donor says he wants it maintained as a meadow. Some agree with this and believe that should be the end of the story. I think this is a reasonable opinion; however, it is not supported by the terms of the Conservation Restriction that is being litigated. Nowhere in the CR does it state that the WLT is charged with ensuring that they follow the intent of the donor/Grantor. I think The WLT will agree they are obligated to follow the terms of the CR and cannot add additional terms.

Despite this fact, at the Jan 13th Fin Com meeting, the WLT President, Atty. Nancy Dempze stated “we have a sworn duty to uphold the conservation purpose in the Conservation Restriction and to follow the intent of the donors.” 

I think there is much more to the story of the WLT and the McFarlands of which people may not be aware.

What is the relationship between the McFarlands and the Westwood Land Trust?

At the Fin Com meeting, Dan Bailey identified himself as Duncan McFarland’s lawyer for this matter. Nancy Dempze, President of the Land Trust, also spoke. If people are not already aware, Nancy Dempze is married to Dan Bailey. (Correct me if I am wrong.)   I think it may be significant to note that Attorney Dempze did not reveal her home address at the start of her comments.

Perhaps when Atty. Dempze made a presentation to the Fin Com, she should have stated that, as it seems that it may be relevant, and it may have led to questions regarding whether she was speaking as a representative of the WLT or the McFarlands.

For those that “speculated” that there was a quid pro quo relationship between Select Board Chair Rob Gotti and Chuck Bean ($1,250 in campaign contributions over two election cycles,) would it surprise you to learn that there have been hundreds of thousands of dollars in payments from the McFarlands Charitable Trust to the president of the Westwood Land Trust’s law firm?

The Bromley Charitable Trust (BCT) was formed in 1994; Duncan M. McFarland, Ellen McFarland and Nancy Dempze are all listed as Trustees. This Trust has been used to finance many worthy causes and the McFarlands should be commended for their generosity and substantial good works.

Nancy Dempze is a partner in the law firm Hemenway & Barnes. There is a long history of the BCT making payments to Hemenway & Barnes for legal matters. Substantial payments have been made as are disclosed in public records available for all to see as follows (a sampling below); all are taken from Form 990-PF Return of a Private Foundation:

In 2006, the BCT made $1,725,909 in grants paid, including $50,000 to the WLT. The BCT also paid $22,507 in legal fees that year to Hemenway & Barnes. The form contains the following statement:

The Foundation occasionally pays a fee for legal services to Hemenway & Barnes. Nancy E. Dempze, one of the Trustees of the Foundation, is a partner of Hemenway & Barnes. The services provided by Hemenway & Barnes are reasonable and necessary to carry out the Foundation’s exempt purpose. The fees paid to Hemenway & Barnes are not excessive and are calculated in the same manner as other clients of Hemenway & Barnes. The payment of this compensation is an act excepted from “self dealing” within the meaning of Regulations Section 53.4941(d)-3(c).

In many years, the filing includes this same statement.

In 2008 the BCT made $1,911,090 in grants paid, including $30,000 to the WLT. The BCT also paid $23,364 in legal fees that year to Hemenway & Barnes.

In 2011 the BCT made $2,721,909 in grants paid, including $445,000 to the WLT. The BCT also paid $16,849 in legal fees that year to Hemenway & Barnes.

In 2012 the BCT made $2,638,826 in grants paid, including $25,000 to the WLT. The BCT also paid $40,116 in legal fees that year to Hemenway & Barnes.

In 2014, the BCT made $2,895,982 in grants paid, including $25,000 to the WLT. The BCT also paid $41,506 in legal fees that year to Hemenway & Barnes.

In 2015 the BCT made $4,299,250 in grants paid, including $25,000 to the WLT. The BCT also paid $74,847 in legal fees that year including $64,313 to Hemenway & Barnes.

In 2016 the BCT made $1,019,678 in grants paid, including $25,000 to the WLT. The BCT also paid $92,138 in legal fees that year, including $57,780 to Hemenway & Barnes.

In 2017 the BCT made $1,870,345 in grants paid, including $10,000 to the WLT. The BCT also paid $78,973 in legal fees that year, including $59,262 to Hemenway & Barnes.

In 2020 the BCT made $1,781,414 in grants paid, including $25,000 to the WLT. The BCT also paid $61,169 in legal fees that year to Hemenway & Barnes.

In 2021 the BCT made $3,810,422 in grants paid. The BCT also paid $43,412 in legal fees that year to Hemenway & Barnes.

In 2022 the BCT made $3,648,404 in grants paid. The BCT also paid $75,859 in legal fees that year to Hemenway & Barnes

In 2023 the BCT made $2,672,366 in grants paid, including $25,000 to the WLT. The BCT also paid $72,020 in legal fees that year to Hemenway & Barnes

In 2024 the BCT made $6,683,466 in grants paid. The BCT also paid $74,259 in legal fees that year to Hemenway & Barnes.

As can be seen above, there is a substantial legal and financial relationship between the BCT and WLT President Dempze’s law firm Hemenway & Barnes. (Atty. Dempze is also a Trustee of at least one other of the McFarland’s Charitible Trusts). These payments are just pulled from public records; as far as I know, payments by anyone (including the McFarlands) made to Atty. Dempze for her services in her actual area of expertise such as Estate Planning and Wealth Management are not a matter of public record, so I cannot track them.

To be absolutely clear, I am not implying or stating that there is anything illegal or unethical about the payments being made by the BCT to the WLT or Hemenway & Barnes.  However, in my opinion, Atty. Dempze should have disclosed this relationship. Honestly, I am beyond impressed with the generosity of the McFarlands and the Charitable Trust they have established.

That said, the payments raise a few questions in my mind:

How does WLT President Atty. Dempze differentiate between when she is acting on behalf of the WLT and their responsibility to enforce the terms of the Conservation Restriction vs. the McFarlands and their expressed desire for how the protected land should be used?

Has Atty. Dempze disclosed her financial and legal relationship with the McFarlands and the BCT to the other WLT board members?

If Atty. Dempze has disclosed the relationship, has she recused herself from votes where the desire of the McFarlands may not be consistent with the terms of the CR they are enforcing? (Note: I am not clear on the law in this area and whether she should or not.)

Do any of the other WLT board members have similar potential conflicts of interest?

How does this fit with the portrayal of the WLT by its supporters as a group of volunteers if the President is being paid (not by the WLT but by what appears to be its chief benefactor’s Charitable Trust)?

As far as I can tell, the WLT does not file the same level of detail in their public filings, so I could not establish where their funding is coming from, and what it is being spent on. However, based on the BCT’s generous gifts of $635,000 documented above, I don’t think that Atty. Fenn was unreasonable in his speculation that the WLT has the McFarland’s backing, and as such, probably has access to more legal funding than the Town. As Professor Tewari will confirm, money is fungible, so unless specific contributions to the WLT are paired with specific expenses, there is no way to know what a particular contribution to the WLT is actually used for.

Was the Town wrong to file a lawsuit to question whether the Land Trust reasonably withheld their permission?

Is the Land Trust behaving “reasonably” in denying the Town’s request to allow farming?

There really is no reason to discuss this, it has been presented to the judge, and she will rule on this issue. However, I think anyone reading the exchange between Town Counsel Ahearn and WLT Atty. Berman will be hard pressed to conclude that the WLT has been reasonable. Personally, I believe that Atty. Berman has recognized this and has thus attempted to amend his filing and present new claims.

Consider the alternative to filing a lawsuit: the Select Board takes the position that when the Land Trust says no to their request, they must simply accept that “no means no”, and choose not to file a lawsuit to have the Court interpret the Conservation Restriction. Thereby, the Westwood Land Trust would effectively control 665 Clapboardtree through their interpretation of the Conservation Restriction; the Town would have no say in how it used. If the Town accepts that the Land Trust has absolute, unchallengeable authority over 665 Clapboardtree Street, then what does the Town actually own?

I would argue that the Town owns nothing except the potential liability that comes with ownership of any property including these 29 acres. If someone falls and hurts themselves on the property -- who will be sued? If hazardous waste is found on the property -- who will be responsible for the clean up?

Some people have questioned what is the economic benefit to the Town of allowing farming on 665 Clapboardtree? I think an even better question is:  what is the economic benefit of holding the deed to a “meadow” that we have no say in how it is used?

I know that by the Town accepting the deed to 665 Clapboardtree Street, we are receiving no taxes, no revenue and have potential liabilities. In hindsight, why would the Town accept the deed if we have no say in how it used? It is something that the Town should consider in the future before accepting title to any property.

The McFarlands have generously donated land to the Town for preservation; I think we all agree they should be thanked for this. No doubt they received tax write-offs for doing this, but they certainly could have made much more by developing the property (just as the Beans could by developing their farm).

The Special Town Meeting

Don’t let the WLT supporters mislead you about your vote; read the four articles -- all of which are written as a variation of a request to drop the lawsuit. Despite the petitioners claims that the articles are about “transparency”, etc., there is nothing in the petition about the “transparency” of the Select Board.  Much as OJ’s lawyers told the jurors to ignore the evidence and use the verdict to send a message to America, the WLT supporters are asking you to ignore what their petition actually says, and vote to send a message to the Select Board.

If you vote yes, you will not be hurting the Select Board; you will be hurting farming in Westwood and sending a message to Massachusetts residents about who Westwood is.

Hopefully, Town Moderator Jim O’Sullivan will allow the Petitioner to read her four articles, but not allow her to expound on what she believes your vote actually means beyond the plain language of the articles. If the petitioner wants to share her opinions with the Town’s voters, she should have the same three minutes as everyone else.

If you believe that the duly elected Select Board is doing the right thing by spending $12,000 to file a lawsuit asking the Court to affirm the Town’s right to allow farming at 665 Clapboardtree Street, then in my opinion you should follow the Fin Com's recommendation and vote for Indefinite Postponement on the four articles.

I know which way I will be voting.