Transparency Check: Why Continuing the WLT Lawsuit Defies Economic Logic

There is one thing I agree with in your post:

Anyone believing the Town of Westwood v Westwood Land Trust lawsuit is the most important issue in this election, and wants the lawsuit dropped immediately, knows who to vote for. They will do so despite the fact that the Special Town Meeting (STM) petitioners caused the Town to spend approximately $30,000 – twice the amount that was spent seeking a summary judgement in the lawsuit.  They will do so despite the fact that the petitioners could have addressed their four articles at the Annual Town Meeting – at no cost to the taxpayers. The STM was promoted by the petitioners as a forum for everyone’s voices to be heard, but the first three speakers that spoke on their behalf were Mrs. McFarland, Dan Bailey (the McFarland’s lawyer) and Nancy Dempze, (WLT President and recipient of hundreds of thousands from the McFarland family Trust). Yet they continue to claim there is no association between the WLT and their “grassroots” supporters.

While we are all entitled to our opinions on the lawsuit, your post is factually in error and misleading:

1) As Attorney Peter Fenn explained, the Town is not responsible to pay the WLT’s legal fees as you state.

2) Your “economic analysis” is predicated on a statement that a lease on agricultural land in Norfolk County is only worth $73/acre/year. Perhaps you could help resolve this issue by identifying land in Westwood that can be leased for that price. I am relatively certain that you know there is no such land.

3) As for “good money after bad”, you may not be aware that I have offered to raise the funds in supporting future expenses to stay the course and assert the Towns right’s on this property.

I think people forget that the only reason there is a lawsuit is because the WLT refused to compromise in any way. Is that really a position you want to support?

Although your “economic analysis” is unrealistic, I think that it helps identify the reason that the Massachusetts Government, City and Towns, and Land Trusts all make an effort to support their local “commercial enterprise” a/k/a farms. (WLT appears to be the sole exception).

We all know that in Eastern Massachusetts the remaining farm land is far more valuable if it is developed. That is why it requires support from those willing to continue farming it and foregoing the immense profit they can reap by developing it.

Farming is a hard, low margin business; we all owe a debt of gratitude to anyone willing to continue the tradition in Westwood, or any of the surrounding communities.

Kevin – I appreciate your consideration and reasonable tone. I think that Ms. Sibley’s petition success largely flowed from people that were upset with Select Board’s handling of the FS-1 situation and the perceived lack of transparency. The in-person meetings of the Select Board are a positive result. I also believe that the Westwood vs WLT issue simply became the forum to address that issue.

I agree -- as Lynne Viti pointed out in response to my post -- if the Land Trust tries to collect their attorneys’ fees for expenses on the case, the judge will rule on whether they are correct.

In my opinion, if people could take the time to study the issue (as you have), they will be supportive of the Town’s position. In regard to the payment of the WLT’s legal costs, the discussion between Attorneys Berman and Fenn that was posted in the Westwood Minute is a great source.

The judge will rule on whether the Land Trust has been reasonable in their denial of the Town’s request to allow farming on 665 Clapboardtree Street. Why is the WLT pressing the Select Board to drop the lawsuit before the Judge has a chance to issue her decision, if the Town will have to reimburse their expenses?

Ultimately I believe that Attorney Fenn’s explanation hinges on this portion of the language:

“all reasonable costs and expenses (including without limitation counsel fees) incurred in enforcing this Conservation Restriction or in remedying of abating any violation thereof."

In your post you stated that “The Conservation Restriction requires the town to pay the WLT legal fees regardless of who wins the lawsuit”

I think if you read Lynne Viti’s post and Attorney Fenn’s legal analysis, you may agree it is not that simple. Personally, I think based on his professional knowledge and experience, Atty. Fenn’s opinion of the likely outcome (if the Land Trust seeks reimbursement for their expenses) is far more relevant than yours or mine.

It seems to me that if Atty. Fenn is incorrect, and the meaning of language is as clear as your post would suggest, Atty. Berman and the Land Trust would already be submitting their legal bills to the Town for reimbursement.

Based on the Towns accounting of the legal costs to date, I believe that no such bills have been submitted. I think that it is safe to assume that Attorney Berman’s hourly rate is far greater than the $250 per hour the Town is paying its counsel.

Regarding the question of the lease value of farm land in Norfolk County being $73/acre per year, I tried to find the source document from the website, but could not. Please post it if you have it.

How ever they have determined that figure, the point is moot as I believe there is no farm land available to lease in Westwood.

Regardless, the premise of your post is that the Town should sell the land to the McFarlands for $475,000 because that makes economic sense. I think that many may agree with you. Here is why I do not:

1) Duncan McFarland signed a legally binding Conservation Restriction on 665 Clapboardtree Street; he needs to abide by the terms spelled out in that agreement.

2) There is a dispute between the owner of the land (the Town of Westwood) and the WLT who is responsible for the enforcement of that CR. That dispute is being litigated and a judge will rule on whose interpretation is correct. It should be noted that based on the President of the WLT’s conflict of interest it is reasonable to question whether she is simply enforcing the CR, or acting on behalf of her client (the McFarlands Charitable Family Trust)

3) Duncan McFarland is wealthy and able to pay $475,000 for 665 Clapboardtree Street, and thereby circumvent the pending lawsuit. This will not allow the judge to rule on the meaning of the language in the CR.  I don’t think that is right; not everything is for sale.

4) I don’t think you can put a price on the value of Westwood continuing its history as a farming community. If you were to try, I would argue it far exceeds $475,000.

I appreciate your point of view. As a friend of mine used to say, reasonable men may differ.