WILLIAMSTOWN - Documents recently submitted to the Conservation Commission support the view that the Lowry and Burbank properties on Stratton Road are protected by Article 97 of the State Constitution. Uncertainty surrounding the status of the lands has been a major obstacle in determining their feasibility for affordable housing.
A definitive answer may still be weeks or months away, but if Article 97 does apply, then releasing the properties from conservation will most likely require a unanimous vote of the Conservation Commission, a two-thirds vote at town meeting and a two-thirds vote of the State Legislature.
There would also be specific guidelines the Conservation Commission would need to follow - including the consideration of alternative sites for affordable housing - before it could make a decision.
A request to release the properties was initiated by the Affordable Housing Committee on July 2, and approved by the selectmen, but the commission returned it to the selectmen to be reworded. It was further revised by the selectmen on Monday.
The most recent version, which the Conservation Commission acknowledged on Thursday, asks that 10 of the 30 acres at Lowry and 30 of the 139 acres at Burbank be released, and specifies that within 45 days of the request, the Affordable Housing Committee must determine which portion of the Burbank property is to be considered for development.
On June 27, the commission had already begun collecting documents and testimony in anticipation of the request.
Among the documents submitted on July 11 was a printout of a chain of emails between commissioner Henry Art and various state environmental agencies whose advice in regard to status of the Stratton Road properties Art had been seeking since last November. He said the agencies had been reluctant to offer advice on an issue that was not currently pending review.
On the morning of July 11, Art had spoken on the phone with Andrew Goldberg, Assistant Attorney General, Environmental Division, who finally provided some authoritative insight into the Article 97 question. Art said it was "highly likely," based on their conversation, that the lands are in fact Article 97 lands.
According to Art's notes, which he submitted along with the emails, Goldberg cited two Supreme Judicial Court cases that dealt with Article 97 and conservation lands: Mahajan v. DEP from 2005 and Hanson v. Lindsay from this past March.
The same two cases were also cited in legal opinion letters provided by Town Council Joel Bard of Kopelman and Paige, who argued in November and again in March that since the Lowry property was originally acquired in 1955 for the purpose of building a high school, it does not qualify for Article 97 status.
"The protections of Article 97 only apply to land that was originally acquired for Article 97 purposes (for example, for conservation, recreation, water supply protection among others)," Bard wrote.
An alternative opinion was provided by Sydney Smithers of Cain Hibbard and Myers on behalf of the 54-member Stratton Hill Condominium Association, whose homes abut the Lowry property. The letters by Bard and by Smithers have been submitted to the Conservation Commission.
In the Hanson case, which Goldberg said most closely resembles the situation in Williamstown, the town of Hanson had voted to place into conservation a parcel of land that had been taken for tax purposes, and the court ruled that Article 97 did not apply. The transfer was to be made through a deed.
Kopelman and Paige had represented the town of Hanson in the case. Bard felt the facts were the same as those in Williamstown: "property acquired for one purpose and subsequently designated for conservation purposes."
But Goldberg and Smithers both pointed out that no action had been taken on the town's vote in that case and that "no deed of transfer was committed." In Williamstown, however, action was taken, since a 1987 town meeting vote transferred the properties to the "care, custody, management, and control" of the Conservation Commission. Goldberg said that having implemented the will of the town makes the situation fundamentally different.
"Both the 'Mahajan' and 'Hanson' cases clearly indicate that subsequent actions and uses need to be taken into consideration in determining the application of Article 97 to conservation lands," Art wrote. Goldberg said the case for Article 97 status is strengthened by the commission's active management of the lands since 1987.
Art wrote that according to Goldberg, "The only action with more heft would be a Conservation Restriction riding with the deed of the property."
Goldberg said it would be premature for the Attorney General's office to provide a written opinion on the matter, but he emphasized that they feel it is a "significant case" and he hopes to be provided with more documentation regarding the history and past uses of the properties.
Art said on July 11 that the commission's growing catalog of documents and testimony could serve that purpose and that the entire catalog will eventually be available online. Residents can also make appointments to view any of the submissions in person at Town Hall.