To the editor:
In my opinion, the Board of Selectmen made a wise decision last night [Monday, Aug. 12] to put the focus on the land donated by Williams College, which can be developed in a timely and non-controversial fashion, rather than continue to consider Lowry and Burbank. Nevertheless, townspeople and various board/committee members alike have asked that a determination be made about the status of Lowry and Burbank as Article 97 land for future consideration. While a logical next step, reaching such a determination may not be as easy as one might think. I want to offer a few thoughts from a lawyer's perspective, although I no longer practice law.
What is most clear about the status of Burbank and Lowry as Article 97 land is that it is unclear despite the best efforts of many smart people. Therefore, how do we determine the status? Regardless of what anyone may or may not want the outcome to be, it is a legal decision based on the laws and the cases of the Commonwealth. Thus, not only is it unfair to ask any particular board, such as the ConCom, to determine the legal status, such a determination will provide no certainty. At best, it will be a well-informed, educated guess. It is like asking your dentist to tell you if you have lung cancer.
Is there a state agency that will provide the answer? Doubtful. The ConCom reached out to the AG's office and they were not willing
Can the town have a lawyer make a determination? The town can have its own counsel offer an opinion, or can engage any number of outside attorneys to do so. The better the firm/attorney, the closer we will get to the right answer, but even top lawyers often disagree in areas of uncertainty. Therefore, a lawyer's opinion also will not give the town the level of certainty it could rely on to move forward without the chance of a protracted legal challenge in court.
So who's left? The only way to get certainty is through the courts. However, under the Constitution, courts cannot make any such determination unless there is an actual controversy. That is the "cases and controversies" clause you hear referred to every now and then. Basically, a court cannot act unless a plaintiff has suffered actual harm caused by the defendant and the court's ruling would actually redress that harm. A court cannot make any ruling or even offer advice in advance of an action. So, in terms of Burbank and Lowry, the only way to get a court to make a determination would be for the town to actually take the land out of conservation and begin the development process. If the town is sued, then, and only then, would a court review the town's actions. Whatever ruling a lower court made would be subject to review up the chain to the Massachusetts SJC if the parties had the money and stomach to take it that far.
Even assuming a court rules in favor of the town, or if there is no challenge, that isn't carte blanche for the town to do whatever it wants on Burbank and Lowry. There are then myriad other statutes and rules governing removing the land from conservation (regardless of Article 97 applicability), preparing environmental impact statements under NEPA and MEPA, studying soils and wetlands, and on and on.
So, in my humble opinion (and others may disagree or know things I do not), under the current state of affairs, the town will never have certainty as to the status of Lowry and Burbank unless it is ready to traverse an extremely long, difficult and expensive bushwhack (no pun intended, but there is no ready-made path here) to develop Burbank and/or Lowry. I cannot imagine such a process taking less than seven to 10 years at a minimum. The town would need incredible resolve and be willing to commit much of its treasure, with no guarantee of success.
In light of such uncertainty, Lowry and Burbank quickly become a lot less appealing from the town's point of view. It is a money drain that the town simply cannot afford when the process cannot be started without reasonable certainty as to the outcome.