WILLIAMSTOWN -- At a Special Town Meeting to be held by the end of April, residents will vote on whether to assign the Lowry and Burbank properties on Stratton Road to an independent holder, who would then be granted a conservation restriction that would protect the land from future development indefinitely.
Sarah Thurston, a resident of Stratton Road, created a petition calling for the meeting, in light of the town's affordable housing efforts becoming more strongly focused on the 30-acre Lowry property, 19 acres of which is farmland. She collected 302 signatures that were certified by Town Clerk Mary Kennedy last week.
The meeting is expected to take place within 45 days of Thurston's announcement of the petition at the Board of Selectmen meeting on March 11.
The conservation status of the two properties came into question following a talk by Town Manger Peter Fohlin at the annual Susan B. Anthony Dinner, hosted by the League of Women Voters on Feb. 26.
During the talk Fohlin expressed his views regarding the town's affordable housing efforts, and stated that the Lowry property was not true conservation land, as many had assumed. The Lowry and Burbank properties, as well as Stone Hill, were transferred to the "care, custody and management and control" of the Conservation Commission at the annual Town Meeting in 1987. But Fohlin said the Lowry property is not true conservation land
Much of the confusion surrounding the property's status has been whether it was placed in Article 97 protection, which is more difficult to reverse than land that is simply in the care of a Conservation Commission.
"If Lowry had been acquired for conservation purposes, it would have Article 97 protection under the Massachusetts Constitution," Fohlin wrote in an email. "It would require votes of town meeting, the Conservation Commission, and the legislature to be repurposed."
Without Article 97 protection, land under the care of the Conservation Commission requires only two steps to be transferred to the Board of Selectmen for the purpose of development: a vote of the Conservation Commission and a vote at Town Meeting.
Many local conservationists are not convinced that the Lowry property is exempt from Article 97. Tad Ames, president of Berkshire Natural Resources Council, believes the conditions under which the properties were transferred implied Article 97 protection, even though it was not mentioned explicitly. He has consulted with Fohlin and with the Williamstown Agricultural Commission to help clarify the status of the properties and identify the town's options for securing more permanent protection for the land.
Ambiguity surrounding conservation land in Massachusetts is common, he said, "and I've seen it many times in the Berkshires, where a town believes that their land is really not conservation land, but when they drill deep they come to understand that it is.
"But I guess every case needs its own process," he said. "So we're just encouraging the town to seek that clarification from the state."
Rather than waiting for state environmental review processes to sort things out once development proposals are made, Ames recommended that the town consult the office of the Secretary of Energy and Environmental Affairs, which would offer the most definitive opinion on the legal implications of Article 97.
"If [land is] acquired for just general municipal purposes, then it's not subject to Article 97," Ames said, "but the Town Meeting vote to place it under the care of the conservation commission, which is established for conservation purposes - that, basically, by definition put it under Article 97."
Even if a small portion of the land - which is mostly open space and farmland - were developed for affordable housing, there would likely be other legal hurdles designed to mitigate damage to the environment, said attorney Elisabeth Goodman, of Ware and Goodman LLP in Williamstown.
Development projects that use state funds, she said, must abide by The Massachusetts Environmental Policy Act, which requires developers to indicate, among other things, whether new development will require the conversion of farmland, and to identify alternative sites.
Funding for affordable housing development in town will likely rely on some form of state funding.
Although the town applied for a $6 million FEMA Hazard Mitigation Grant after Tropical Storm Irene left most of the residents of The Spruces Mobile Home Park without homes, that money would technically not be used for development, so additional review processes associated with federal funds may not be necessary.
Under the proposed agreement, Morgan Management, which owns the park, will receive approximately $4.5 million from FEMA, $3.75 million of which it will then donate to the town, along with the Spruces property.
The terms of the grant require Williamstown to use the remaining funds to help the current Spruces residents relocate. Those residents would likely be given first priority for spots in new affordable housing in town.
Goodman mentioned Section 1 of Executive Order 193, issued by Gov. Edward J. King in 1981: "State funds and federal grants administered by the state shall not be used to encourage the conversion of agricultural land to other uses when feasible alternatives are available."
Along similar lines, Section 5 of Executive Order 385, issued by Gov. William F. Weld in 1996 states that revitalizing previously developed areas "shall be deemed preferable over construction of new facilities or development of areas with significant value in terms of environmental quality and resources, unless otherwise provided and supported by local or regional growth management plans."
MEPA will "decide what your environmental review will consist of and whether you've done a proper analysis," Goodman said. "But the end result is that you have to determine that you are avoiding damage to the environment. And if you have to do damage to the environment, you've minimized and mitigated it."
The open space at Lowry is considered prime farmland by the USDA and is being cultivated by Kim Wells of East Mountain Farm to grow hay; the former site of the Photech Mill on Cole Avenue and the former site of the Town Garage on Water Street - two other potential development sites - have been vacant for several years. Under those conditions, Executive Orders 193 and 385 will likely come into play if state funds are used.
If the town votes at the Special Town Meeting to convey a conservation restriction to an qualified holder (which may be the Conservation Commission itself), the holder will be required to maintain the terms of the restriction, which would include annual (or more frequent) inspections of the land. But the town would remain the landowner and would decide how the land is used. That could include determining what crops are grown and who can farm the land, Ames said. The town could also sell the land to another farmer.
The land would be a no-cost gift made by the town to the holder.
Reversing the restriction would require votes of the Conservation Commission, the town, and the state legislature. Ames said the decision would amount to a recognition that the properties placed into the care of the Conservation Commission in 1987 are in fact Article 97 lands.
"Our position isn't that it's affordable housing versus farmland, simply that there is a process that exists," he said. "We believe this land is in conservation and if the town is going to proceed with an affordable housing project, apart from any position we took on whether the town should do it, we just would insist that the process should be followed properly."