Walking the Berkshires

Green Copy

Two articles appear under my byline in this week's edition of the Lakeville Journal (readable on-line with free registration).  The first is my biweekly story under the Nature Notes column that greets readers on page 1 below the fold.

Old Stories, Written in Stone:  (Excerpt)

"...Many cemeteries are among the most significant green spaces in our urban regions.  Mt. Auburn Cemetery outside Boston is renowned as a major stopover for neo-tropical migrants on the Atlantic flyway as well as for being the premier example of the America’s rural cemetery movement and the design ethic that arose after 1830.  In the spring at Mt. Auburn, when the cherry and dogwood blossoms perfume the air, one may encounter dozens of warbler species in a single hour.

Because old burial grounds were managed differently than surrounding agricultural land, they often preserve rare plant species and natural community types that have all but vanished elsewhere.  One such graveyard in southeast Massachusetts preserves one of only a handful of known populations of sandplain gerardia, a globally rare plant that thrives only when its competitors are kept at bay through frequent mowing or fire.

Some of the only unplowed land in what was once Tallgrass Prairie is found in old Illinois pioneer cemeteries like the fictional one in Spoon River.  Untilled land retains the soil complexity and seed reserves required to sustain remnants of this once-pervasive habitat type, and even where prairie restoration efforts seek to reclaim old farmland, the resulting habitat is significantly less diverse than was the unplowed prairie. 

For these reasons, as well as their recreational value and the low odds that they will convert to other uses, the Litchfield Hills Greenprint Program (which I direct) treats rural cemeteries as permanently protected open space...."

The other was intended as a press release but got tagged with my byline.  I stand by what is written, but in the interest of full disclosure it relates directly to my professional work and to the CT State Committee of the Highlands Coalition of which I am co-chair.  It is all good conservation news, and recognizes the first use of federal highlands act funds to protect important places in Connecticut, but just so we are clear on the source ;-)

State, federal, local groups pull together to protect 300-acre DeLuca property in Cornwall, Falls Village:

(Excerpted quotes from the article)

"...Connecticut Department of Environmental Protection Commissioner Gina McCarthy said, “The acquisition of the DeLuca property was an especially important addition to the state’s open space holdings. This property expands on existing protected land in the area and aids our efforts to enhance the quality of the Housatonic River. The purchase was possible only with the financial support DEP received from the Cornwall Conservation Trust and the Federal Highlands Fund. This is a perfect example of the types of partnerships we need to build to succeed in meeting this state’s open space goals..."

“...The closing on this property represents the culmination of focused efforts at every level of government to achieve a gigantic victory for conservation” said state Sen. Andrew Roraback (R-30). “The cooperation that led to this success should be emulated at every opportunity as we continue working to keep Litchfield County the special place that it is.”

“Timing is everything” said Cornwall First Selectman Gordon Ridgway. “We were just lucky to have a motivated seller and that the state had the resources to put toward protecting this unique property.”

Falls Village First Selectman Pat Mechare said, “This acquisition by the state continues a conservation trend for the town of Canaan [Falls Village] of having one of the highest rates of land protection in the state.”

“CCT and its donors are delighted to have brought some local, private funds to this important project in the Housatonic watershed and are glad to be a part of a ‘first’ for the Highlands,” said Hector Prud’Homme, president of the (Cornwall Conservation) trust. “Whenever another opportunity arises, we will again join forces with public funding sources to protect precious open space for the benefit of future generations.”

I though Pat Mechare's statement managed to recognize the conservation achievement while also acknowledging its impact on a community that is 46% permanently protected open space, has only a handful of children in its kindergarten class, and the lowest grand list of any town in the County.  There was a time not long ago when one heard conservation land called in Falls Village "The Green Noose."  Now the town is a leader in a regional planning collaborative and looking for ways to protect what is special about the community while being fiscally responsible and looking especially to the need for more affordable housing.

Finally, I modified my recent Fall Forage post for the Nature Notes piece that ran two weeks ago under the same title:  More on feral apples and shaggy manes here.

Hurdle Cleared: Town of Wareham Voters Overwhelmingly Support Saving Windrock

Once again, the people have spoken. And once again, the citizens of Wareham, Massachusetts at their October TownMeeting have voted in numbers far exceeding the required 2/3 majority to use their Community Preservation Act funds to purchase a conservation interest in our family's "Windrock".  And on a night when it is blowing a gale and rattling the casements of this old house, I finally can exhale.  This was the big hurdle set before us by the selectmen when they declined to sign off on our Conservation Restriction last June, so now it goes back to them for their formal endorsement.  After that, it is a matter of settting a closing date and other due diligence, but realistically this could cross the finish line by Thanksgiving, and certainly before the New Year.  Yogi Berra be my guru, cause it ain't over 'til it's over, but once again it seems the end we have all worked so hard for is coming clearly in view.

Hanging Fire

The voters of the Town of Wareham met as a deliberative body at 7:00 last night and after 3 tortuous hours managed to complete discussion and vote on the first 10 articles on the Town Warrant.  Our's was the 11th, and because the good citizens of Wareham had had enough for a night, they failed to extend the meeting to cover the final two Community Preservation Act articles with the 2/3 majority needed to do so.  So instead of riding last night's trend of approving expenditures from this dedicated conservation fund when all other aspects of the Town budget are in smoking ruins, we are the first item to be discussed and voted on tonight.

Faced with driving home in the early morning hours without seeing this through to resolution, I elected instead to work from Windrock today and return to Town Meeting tonight.  The house is shut down for the season but warm enough inside not to require any heat.  There are dark gray rain clouds out across the bay and the air is cool and still.  There isn't much food in the house but I am not hungry.  May this day in the place we love grant me patience and clear eyes to see the way forward.

"Once More Unto the Breach": The Next Chapter in Saving Windrock

Tonight at its annual Fall Town Meeting, the voters of Wareham, Massachusetts will be asked to once again confirm their desire to see our family's land conserved using a dedicated source of municipal funding.  The warrant article "To see if the Town will vote to appropriate from Community Preservation Funds, under the category of open space, $400,000 for the acquisition of a conservation restriction" on 19.55 acres of our property." differs from that which the voters strongly supported last year in that there is no possibility of regaining the state Self-Help Grant money which the Town leaders declined to use to protect our land last June when they unanimously rejected the conservation restriction at the 11th hour.  The full $400K, then, falls on the Community Preservation Act Funds of the Town, which can only be used for open space or recreation lands.  The money is there.  Will the voters be also?

We are the 11th item on the warrant and are not competing with a Red Sox world series game for voter turnout.  If it passes once again, then the only obstacle to our concluding this transaction and saving Windrock for future generations is the formal approval of the easement by 3/5 of the Select-board.  I will not hazard a guess as to how that might go, but I will be in the audience tonight to see the outcome of the Town vote firsthand.  I'd like to drive home in the wee hours tomorrow morning with a big smile on my face.  We shall see.  Meanwhile the full warrant as it appears before the voters - with the Finance Commitee's faint praise endorsement - is below.  I shall refrain from further comment until after the vote:

ARTICLE 11

To see if the Town will vote to appropriate from Community Preservation estimatedannual revenues under the category of Open Space and Recreation, the amount of$400,000 for Phase II of the Great Neck Conservation Project; the acquisition of aconservation restriction with respect to approximately 19.55 (+/-) acres (a plan ofwhich, titled "Plan of Land Showing Conservation Restriction to be Created at GreatNeck Road- Assessor's Map 27, Lots owned by the Barker Family Trust, as described onAssessors Map 27, Parcels 1000 & 1009 in Wareham, Massachusetts (PlymouthCounty)," dated May 30, 2008, prepared for Robert H. Barker, Jr. by J.C. Engineering Inc., is on file with the Town Clerk), being a portion of a 33-acre parcel of land identified as Assessor's Map 27, Lot 1000 and described in deeds recorded with the Plymouth County Registry of Deeds in Book 9983, Pages 292 and 294, owned by the Barker Family Trust, such real property to be jointly under the care, custody and control of the Conservation Commission of the Town of Wareham and the Wareham Land Trust, a non-profit organization, and to be managed jointly by said Conservation Commission of the Town of Wareham and the Wareham Land Trust; and further to rescind the Town's vote under Article 26 of the October 2007 Town Meeting appropriating funds and authorizing borrowing for such purposes, or to do or act in any manner relative thereto. Inserted by the Board of Selectmen at the request of the Community Preservation Committee

OCTOBER 27, 2008 FALL TOWN MEETING WARRANT (CONT’D)

The Board of Selectmen Voted: Favorable Action 4-0-0

The Finance Committee Voted: Favorable Action 6-0-1

Explanation:

The intent of this article is to place a Conservation Restriction on 19+ acres which would be jointly under the care and custody of the Conservation Commission of the Town of Wareham and the Wareham Land Trust. The article further seeks to reverse the Town Meeting vote on Article 26 of the October 2007 Town Meeting.

The Finance Committee Recommendation:

The positive aspect of this article is that it would provide limited access to the area along designated paths and preserve it for future generations without development.

The negative aspects of this article is it will provide inadequate parkingspaces and joint control, but not majority control by the Town of Wareham.

Black and White and Read All Over

My first two articles moonlighting as a freelance journalist appear in today's issue of the Lakeville Journal (readable on-line with free registration).  One is a regular feature called Nature Notes that appears below the fold on page 1 that I write on weeks alternating with Fred Baumgarten.  The other covers the Open Forest Day held two weekends ago at Great Mountain Forest on Canaan Mountain.  A taste:

Of seeds and serpents Tim Abbott October, 09, 2008

This appears to be a mast year for oak trees, a time when there is a dramatic increase in acorn production. More small rodents will survive the winter after a mast year when food is plentiful, and that in turn could mean a bonanza for their predators in the coming spring.

I was musing along these lines while hiking in the mountains recently when I came upon two timber rattlesnakes.  Nothing sets the heart to racing quite like finding a fat-bodied pit viper, more than 4 feet long and thick as your forearm, lying beside the trail or coiled in your flower bed...

Sign up and read the rest of Nature Notes here and also the Great Mountain Forest piece here.

Scarce Resources

What can you do without?  Clean air?  Clean water?  The local dairy farm?  A forest forever wild?

In times of economic uncertainty, public funding for these things generally ends up on the cutting room floor.  The environment cannot compete with bailing out toxic mortgages, and to compound the matter further, private philanthropic dollars contract when the market crashes.

When the federal budget has insufficient funds to combat western wildfires - a situation which has become chronic but which is likely to be even more acute in this economy - all Forest Service funds that have not been officially obligated are liable to rapid reallocation.  Conservation Projects funded under the Forest Legacy Program and Highlands Conservation Act are particularly vulnerable to losing funding in this way.

If a core function of politics is the allocation of scarce resources, the squeakiest wheels get the grease.  Rural voters need the support of their urban counterparts to ensure that the conservation of the air we all breathe, the water we drink, the natural areas where we recreate, the local farms that provide us with food and the ecology of our wildlands are not left as unfunded mandates.  We also have to do our part to put our personal resources and those of our municipalities on the table.  There is nothing like a leveraged dollar to bring a smile to a bureaucrat's heart.

There are bargains to be had as land values fall. But without the money to act on them, these properties may end up in a speculator's portfolio. 

Open Space and a Cold Case

When the (now ex-) president of the Litchfield Land Trust was arrested for growing marijuana on land protected by his own conservation organization in northwest Connecticut, it made all the papers.  Now the Land Trust is in the news again, and though not through any fault of its own, the story is even more outrageous.  It also has a bearing on my day job as Director of the Litchfield Hills Greenprint, as the news story alerted us to the existence of land protected by the Land Trust in the nearby town of Morris where we were unaware that the Trust had any protected holdings.

According to this story in the Hartford Courant, the Litchfield Land Trust must have at least one easement in Morris, because the police apparently needed its permission to dismantle a stone wall there looking for the remains of a man who has been missing since 1978.  This cold case got suddenly hot about a year and a half ago, when a man under indictment for possession of more than 100 pounds of marijuana walked into the police station with a bag containing the skeletal remains of a human arm.

"(Kenneth Gelormino Jr.)  told police the bones belonged to Lester "Chip" Stewart, who had been reported missing in January 1980, 16 months after he was last seen in Litchfield County — in September 1978.

Police had long suspected that Stewart was the victim of a drug deal gone bad.

Gelormino, who lived in Torrington, told authorities he got the bones from his father, Kenneth Gelormino Sr. The son said his father, facing a life-threatening disease, told him a gruesome secret: He and another man killed Stewart, burned his body and buried it under a stone wall.

The elder Gelormino had kept the bones as collateral to blackmail his former partner, and he wanted his son to use the bones to continue to extort money from the man, who had since moved to Arizona."

This story reads like something out of a Robert B. Parker novel.  Stewart was a drifter thought to have been be a drug runner between Florida and Connecticut in the 1970s.  DNA tests on the bag of bones show a positive match with its contents.  The current owner of the land purchased it subject to the conservation easement and was not the owner at the time of Stewart's disappearance.  The new President of the Litchfield Land Trust agreed to cooperate with police and to let them dismantle the stone wall, which certainly looks like the proper call.  I am sure it is not the kind of press attention the Trust was looking for, but it is the talk of the town.

Buzzard's Eye View

(photo credit Jay Heard)

This is Windrock from the air.  The photographer has managed almost exactly to capture the full frontage of the property - roughtly 400 ft' -  on Buzzards Bay.  It runs a mile back into those woods.  The advance of that line of houses in the background is what our pending conservation easement with the Town of Wareham and Wareham Land Trust is meant to prevent. 

We are going back before October's Town Meeting for a reauthorization of the purchase of our easement using Wareham's Community Preservation Act funds.  Stay tuned.

Making a Federal Case of It

The Litchfield County Times has a story today about a federal lawsuit brought against the Town of Sharon, Connecticut by a land owner concerned about unauthorized vehicular use of a public access easement that enters her property.  At issue is a former Town road that was discontinued in 1993, moving into private ownership by abutting landowners but with the Town reserving "the right to use the road as a recreational path for pedestrians, bicycles and horses."  There was a subsequent sale in 2003 of one of the properties along the discontinued road to the plaintiff in the suit, who according to the article was fully aware of the easement at time of purchase and has built a new residence there. 

Apparently there were vehicles using the discontinued road to remove stones from walls on the property and the landowner erected a gate with the authorization of the former 1st selectman.  Two residents who were subsequently unable to ride their horses on the recreational easement complained to the current 1st Selectman, and despite efforts to resolve the problem informally the issue has reached an impasse and now the Town, the board of selectmen and three members of the board both as individuals and town officials are named as defendants in a federal lawsuit.  According to the news article;

"The suit claims denial of procedural due process and of substantive due process, as well as a non-federal claim concerning the maintenance of easement."

While making a federal case of it is rare in our area, conflicts between private landowners and local boards and commissions over procedural issues are far more common.  So, too, are issues pertaining to decades old easements.  They stay in place when land changes hands, frequently contain ambiguous wording, and often have been inconsistently monitored by the easement holder.  Municipal easements are especially problematic, and often lack proper documentation.  I am aware of some "conservation set-asides" accepted on paper in subdivision plans before land use commissions and never formally accepted by the municipality.  Conservation easements held by conservation non-profits can be held to the standards set by the Land Trust Alliance, though these, too, range in quality, stewardship, and legal monitoring.

The landowner in this case believes that the Town has an obligation to maintain its recreational access easements and has failed to do so.  Depending on the wording of the retained rights, that may or may not be true.  This is a valid concern for private landowners, who often must accept public access as a condition of their voluntarily placing a conservation easement on their property.  Our family is in that situation with the sale of a conservation restriction over 2/3 of our land in Wareham, MA, and we spent a great deal of time in negotiating the easement terms addressing the potential negative impacts of public access.  I would suspect that the decision to discontinue the local road with the Town retaining recreational access rights did not involve such legal language.  In cases like this, it usually turns out that the Town decision to retain the ROW easement when the road was discontinued was probably made during a session of the board of selectmen and is reflected in the minutes and subsequent deed transfers but without other easement language relating to stewardship, monitoring, and rights and obligations that are customarily addressed in conservation easements granted by private landowners to conservation entities.  If I am wrong about this, then perhaps the landowner has a case concerning the maintenance of the easement, but my guess is that the Town has no legal obligation to do so because the language establishing the easement is likely to be quite sparse.

As for the questions of due process, volunteer boards and commissions are vulnerable here, whether or not their behavior falls to the level of being "unreasonable, arbitrary and capricious and a gross abuse of governmental authority" as this federal lawsuit alleges.  I have no idea if these charges have merit in this case, but I have certainly witnessed behavior that fits this description in other places.  Usually, though, the errors made are those of well-meaning amateurs. I take my hat off to any citizen willing to serve on a town planning and zoning board, as you are guaranteed to have people mad at you at every meeting.

Small towns do not have the resources to defend themselves against well financed lawsuits and sometimes landowners use the threat of litigation to force a community to back down.  The very best advice I can offer to those who grant or accept easements it to get the language right from the start and do not skimp on the legal documentation and monitoring.  These things are perpetual, and forever is a long time.

The "Green Lining"

The Trust for Public Land got some prime, earned media exposure today on American Public Media's Marketplace: Morning Report.  Anytime you get that kind of attention it can work to your advantage, even if the facts are not always correct or presented the way you would have preferred.  There were two parts of this generally favorable story that raised this insider's eyebrows. 

I'm pretty sure TPL has saved a great deal more than "a thousand acres all over the country since last Fall."  Heck, we've got land trusts in Connecticut that did that much in 2007, in a year when many landowners moved to close before December 31st to take advantage of extremely generous charitable deductions for gifts and discounted sales of conservation easements. 

I also suspect TPL's President Will Rogers would have preferred that the reporter not characterize his and other conservation non-profits as "tend(ing) to have a lot of cash on hand. So they're able to buy land outright or secure better financing than private developers who rely on credit."   TPL definitely does not have a lot of fungible cash on hand, and what capital funds it does secure are highly leveraged and extremely dependant on public sources of conservation finance.  As for operational funds, those are scarce as hens teeth in this economic climate.  Folks are getting laid off, not rolling in slush.

The Marketplace piece was interested in showing that when real estate values go South, conservation deals start to look more competitive than when land protection organizations are going head-to-head with developers.  This so-called "green lining" to the real estate storm clouds is certainly a factor, but even when land gets more affordable, financing is still a significant challenge for conservation groups.  Conservation dollars are among the first to get red-lined from government budgets in tough fiscal times, and when private donors are feeling decidedly less flush in their investments they tend to cut back on their philanthropy.  They are also getting hit up by every non-profit they have ever supported as these groups struggle to maintain the capital they need to operate, let alone buy interests in conservation land.

Now is a very good time to invest in potential conservation real estate if you have the financing and can afford to buy and hold.  There are some very large conservation organizations with access to revolving funds, but even these tend to be committed to existing projects and need to be replenished.  The real opportunities in my part of the world are for significant conservation coupled with thoughtful development.  In fact, some developers are finding that with today's financing constraints, having fewer houses to sell and some conservation dollars in the deal makes better sense than trying for full subdivision and build out potential.  Such subdivisions also may stand a better chance with local land use commissions. 

Even if it wasn't a perfect piece of reporting,  the Trust For Public Land story helps with another kind of development.  The kind that happens with donors.