WESTWOOD’S SELECT BOARD MUST DO THEIR JOB (PROTECT WESTWOOD’S PROPERTY RIGHTS) AND LET THE JUDGE DO HERS

Should Westwood residents be determining what is the intent and interpretation of the Conservation Restriction on 665 Clapboardtree Street?

By demanding that the Town drop the lawsuit concerning 665 Clapboardtree Street, Erin Sibley is essentially asking Westwood residents to act as Judge and Jury for the dispute -- and not allow the judge to issue a ruling. The lawsuit is asking the judge to determine whether the Town’s or the Westwood Land Trust’s (WLT) interpretation of language and meaning in the Conservation Restriction (CR) is correct. If the lawsuit is dropped, neither side will have the answer regarding who is correct, and the Town would, in effect, be ceding all rights and control of this Town-owned property (and potentially others) to the WLT.  If the Town were to drop the suit, the Select Board would actually be in breach of their fiduciary duty to protect and preserve the Town’s assets. The Town owns the Clapboardtree property with the attendant rights to lease the property. They need to enforce those rights.

Does a Judge consider intent not written in a contract when making a legal interpretation?

The WLT and some of their supporters have pointed to the donors’ intent as determinative of the correct CR interpretation and meaning. My understanding is that while intent of the donor may in certain circumstances be significant, it is the intent of the donor at the time that a CR is signed that is legally relevant, and under the law, that intent is determined from the terms of the document itself, unless the terms are ambiguous or internally inconstant. It’s known as the four corners rule. If the intent can be determined within the four corners of the document, then the Court will not go outside and hear extrinsic evidence.

Unless the Judge decides that she cannot rule based on the content of the CR, what the McFarlands or the Beans say now about their intent 25 years ago is immaterial. The purpose of this rule is to prevent exactly what is happening here: arguments supported by memories that are less reliable than written contracts. Also, a donor cannot subsequently exert control over a donated property for which they have taken a tax write-off.

In this case, what if the Judge decides she needs to consider intent?

If the Judge decides that she cannot determine the intent from the document itself, this raises the question: What was the intent of the donor when the CR was signed? In the Town vs. WLT case, we have two competing statements about what was the intent of the CR: one by the Beans, and one by the McFarlands.

If we are to act as Judge and Jury, we need to assess which of the two stories are credible.

Following is Chuck Bean’s version of what transpired regarding the 665 Clapboardtree property:

“My late father, Charles ‘Charlie’ S. Bean II, a long-time Westwood resident and farmer since the 1950s, had agricultural roots in New England dating back 12 generations to 1652.  In the late 1990s, my father learned that his neighbor, Richard Prout, was in the process of selling his 29 acre property called Prout Farm at 665 Clapboardtree Street (consisting of one residence, 8 acres of open field and the rest forest and wetlands), to a developer who intended to build 68 condominiums -- which would have wrapped around 2 sides of our family's farm. My father wanted to prevent this property from being developed and, with legal advice, he formed the Clapboardtree Preservation Society [later called the Westwood Preservation Society] and then rallied the community's support. Lacking the funds needed to purchase the land himself, he sought and found neighbors with financial means to purchase and protect the property, Duncan and Ellen McFarland.  My father and the McFarlands worked together to protect and conserve this property from development.

It was very important to my father to ensure that the 8 acres of open, dry field within the 29 total acre parcel would be available for agricultural use in the event a future farmer in our family (or another owner of the Bean Farm) wanted to farm the field down the road.  Through all of my father's efforts to preserve this land, he had just one request:  include language within the Conservation Restriction permitting broad agricultural uses within the open field.  This language was drafted by the attorney, circulated and agreed among all parties, and signed by the 3 Select Board Members and Duncan McFarland.  If you carefully read the CR, there is absolutely no mention of the word ‘Meadow’ throughout the document; this term was coined many years later by the Westwood Land Trust.  The document does, however, reference ‘prime agricultural soils’ that exist throughout the property as designated and documented by the United States Department of Agriculture.”  --Chuck Bean (son of farmer ‘Charlie’ S. Bean, II)

Following is the explanation the McFarlands have provided (in a letter sent to the Select Board) explaining their intention for 665 Clapboardtree Street:

“We never intended or expected that Clapboardtree Meadow would be used for commercial farming by the Bean family, or anyone else. If we had so intended, we could have explicitly addressed that in the Conservation Restriction or other documents prepared at that time. The fact that the Conservation Restriction allows for the mere possibility of agricultural use at the WLT’s discretion proves that neither the Bean Family nor anyone else has a right to use the land for that purpose.” --Duncan and Ellen McFarland

My evaluation of the competing versions:

Simple common sense tells us that at the time the land was put under a Conservation Restriction, if it was Mr. and Mrs. McFarland’s intention that it always be maintained as a meadow without any agricultural use, they could have written that into the documents. In my opinion, their statement to the Select Board is reversed; if they did not want farming, they could have stated it explicitly in the CR.

Clearly the Beans do not have the “right” to farm 665 Clapboardtree Street, meaning that they cannot farm it without the owner’s (Town of Westwood’s) and WLT’s permission. The relevant question is: does the Town have the right to allow farming of any nature on 665 Clapboardtree Street? That is the subject of the pending lawsuit.

It is obvious that the CR allows farming with the approval of the WLT (the relevant language is quoted below for anyone interested). Please note that nowhere in the CR is there any mention of a “meadow”, but it does allow for agricultural use including a Farm Stand to be built on the property.

I can think of three possible reasons for the discrepancy between what the CR says, and what the McFarlands say was their intent.

1) It was approximately 25 years ago and the McFarlands may have forgotten what their intent was and what, if any, the agreement with Charlie Bean was. I know I would be hard pressed to recall what exactly were my intentions on actions I took that long ago.

2) The McFarlands may have changed their minds and now would like to see the property maintained as a meadow. This would not be the first time they have changed their minds. In April 2003, the McFarlands submitted a preliminary plan to Westwood’s Planning Board to subdivide 682 Clapboardtree Street into three house lots. That plan was subsequently approved. On November 19, 2004, the McFarlands signed a Deed of Conservation Restriction on 682 Clapboardtree Street having apparently changed their mind about the proposed development of the land.

3) The McFarlands may have included the language regarding farming to placate Charlie Bean, but made it a conditional use that required the WLT’s approval. As detailed in a Westwood Minute post on Jan 30, 2026, the law firm of the WLT President has been paid hundreds of thousands of dollars by the McFarlands’ Family Charitable Trust. This brings into question whether the WLT is truly, independently administering the CR or is more concerned with the McFarlands’ opinion regarding how it should be administered.

The President of the WLT is also being sued in Rhode Island for a similar situation in which she and her firm -- as trust fiduciaries -- are alleged to have a conflict of interest between mother and children of the Metcalf family, and not acting in the best interest of the trust’s beneficiaries (the children), as reported on Go Local Providence:

In a lawsuit filed in Providence Superior Court, “levied against two lawyers and the law firm in which they practice -- named are Nancy Dempze, Stephen Kidder, and the Boston-based firm Hemenway & Barnes LLP (H&B).

The lawsuit claims [defendants including Mrs. Charlotte Metcalf – the mother] ‘[Charlotte] also ensured that H&B attorneys would always be able to appoint other H&B counsel as successor trustees of the trust. Dempze and H&B undertook these actions to benefit their interests and ignored legitimate and valid objections voiced by [plaintiffs] Hannah, Jesse and Lucy [the Metcalf children] as current beneficiaries of the trust. These actions by Dempze and H&B further evidence their ongoing conflict of interest and their willingness to put the interests of their firm over those of trust beneficiaries [bolding added] to whom they owe fiduciary duties and duties of loyalty and care.’

The four-count lawsuit seeks:

- Removal of Dempze and Kidder as Trustees of the 1984 Trust; 

- Removal of Dempze as Trustee of the Marital Trusts 

- An order prohibiting H&B from acting as counsel to the Metcalf Trusts or to trustees of the Metcalf Trusts”

My Evaluation and “vote as Juror”

The fact that the CR documents require WLT’s approval for agricultural use doesn’t prove that its use is not allowed, only that the WLT has the discretion to review and approve any proposed agricultural use. Note, however, the CR states the WLT must be reasonable in using that discretion.

In my opinion, the Beans explanation that Charlie Bean (a farmer) wanted to ensure that farming would be allowed at 665 Clapboardtree Street in the future is credible, and the language in the CR reflects that (again note that it discusses various agricultural activities, conserving prime agricultural soils and even allows that a farm stand be erected on the property).

I don’t find the McFarlands’ explanation as credible; however, to truly assess their version we need further information from them:

1) If they did not want to allow farming, why did the language in the CR allow for farming (even with the WLT’s permission) rather than simply listing it as a prohibited use? I also note that in the McFarlands’ letter, they specify that they never intended that the property be used for “commercial farming”, leaving open the question if they are also saying that they never intended that non-commercial farming be allowed.

2) Why was 665 Clapboardtree Street conveyed to the Westwood Preservation Society (previously called the Clapboardtree Preservation Society) whose President, Charlie Bean, was farming the abutting property? Did the McFarlands not anticipate that the Beans would want to revive the property’s use for farming?

Reading the purpose of the Conservation Restriction (see excerpt below), it seems that the 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?

In conclusion, although I certainly have an established viewpoint on this matter, I think that Chuck Bean’s explanation seems to make sense and as a juror would vote in favor of the Town’s position.

Furthermore, I think the WLT and their President have a conflict of interest that they have not publicly disclosed or admitted, and should not be overseeing the CR; that role should be transferred to Westwood’s Conservation Commission.

Conservation Restriction Excerpt:

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.

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).