Posted on 12/20/2001 3:20:36 AM PST by brityank
[MA] Landowners Take On State
Boston Globe 12.06.01GRAFTON - Tom Casale hasn't actually seen a ringed boghaunter dragonfly lately. But if he did, he'd probably swat it dead.
"My mother always used to say they'd sew your lips closed if you let them get too close," Casale said, standing on the porch of his A-frame house in the woods off Old Upton Road.
The dragonfly is one of five rare species whose preservation led the state to designate 8,700 acres in Grafton, Upton, and Hopkinton, including Casale's land, as the state's 26th Area of Critical Environmental Concern, part of a program to protect ecologically sensitive land.
The program has been in place in Massachusetts since 1975, but Casale and several other landowners in Grafton and Upton say that environmental-concern designations are being used with more vigor as a tool to control growth. In a lawsuit currently in the appeals process, they contend the designation diminishes the value of their land by imposing broader regulations on development.
"It's not right," Casale said. "Why should one half of the town be under this jurisdiction while the other side of town is not? It's a land-taking, and the thing that has us really up in arms is, they tried to push it through in a covert manner."
The clash in this land of thick woods, rolling hills, and dairy farms has become another flashpoint in the war on sprawl, as environmentalists seek to protect undeveloped land and landowners raise constitutional objections based on property rights.
The issue reached the US Supreme Court recently, in the case of a Rhode Island man prevented from building on his land because of wetlands regulations, and another case set to be heard this term of a Lake Tahoe, Calif., woman who says the government should compensate her for imposing a moratorium on development.
In the ACEC program, in which 100,000 acres have been protected thus far, there is no ban on development but, rather, an increased level of regulatory scrutiny on the designated land. Any 10 people can nominate an area for ACEC designation by showing the land has four of 11 characteristics that make it environmentally sensitive - a habitat for rare species, for example, or a wetlands ecosystem.
Massachusetts officials say the program is mostly about educating people about precious resources in the state, not slowing development. A Worcester Superior Court judge agreed, saying there was no evidence that any landowner had been economically harmed by the Grafton-Upton-Hopkinton designation.
But landowners say the designation makes it more cumbersome for farmers to clear land for hayfields, and has put a chill on development and potential land sales in an area outside the Interstate-495 loop and north of Worcester.
"They blatantly lied to us, saying it wouldn't affect development. It will, financially," said Lee Robinson, who owns about 400 acres in Grafton. "We have land planners who estimated there would be $10,000 more in permitting costs per lot under the ACEC. For a 50-lot project, that's half a million dollars. And we were told it wouldn't affect us at all."
Donna Williams, who as chairwoman of the Grafton Conservation Commission spearheaded the ACEC effort, said in an interview that the designation "has no regulatory impact except for existing regulations."
But even a small project in an ACEC must go through the Massachusetts Environmental Policy Act, or MEPA, review process, which is normally reserved for large projects.
Having a lower threshold at which MEPA kicks in "adds cost, for going through the environmental review; but, more importantly, it adds uncertainty by adding another step in the development process," said R.J. Lyman, former head of the MEPA office and now an attorney at Goodwin, Proctor & Hoar.
"Any time there is uncertainty and cost, developers will tend to look elsewhere," Lyman said.
Williams defends the process that led to the ACEC, saying "there was nothing secretive about it." She accuses Casale and a handful of others of "spreading a lot of misinformation, and putting a lot of fear into people that was totally unjustified."
Grafton state Representative George Peterson, a Republican who initially supported the designation and then turned against it, said the notification process for the ACEC program is flawed. He has proposed a bill requiring a public meeting with all affected landowners present, at the very beginning of the process.
"Once that nomination is in, the train has left the station and it's difficult to turn it around," he said. "I was not happy with the process."
The Grafton-Upton-Hopkinton ACEC, slightly downsized from the original proposal, was signed by Environmental Affairs Secretary Robert Durand, over the objections of local legislators, selectmen, and planning board members. State officials make no apologies for identifying sensitive areas in a fast-growing state.
"It does not prohibit development. It's not designed to prohibit development. What it does is educate people about what they have in their backyards and what they share with other communities," said Leslie Luchonok, director of the ACEC program. "This is a very public process," he added.
The Grafton-Upton-Hopkinton ACEC was the first case in which an ACEC challenge reached the courts in 26 years of the program, Luchonok said. Two more designations are in the pipeline, in the Nashua River watershed.
The controversy has left a bad taste in an area known for its rural conventions, though only roughly 50 miles from Boston.
"Some of these Yankee farmers are pretty stubborn. And they have good reason," Casale said. "They say we've been good stewards of the land, but then they come in and say, `We'll take it from here."'
Williams, the Conservation Commission chairwoman, said that "the landowners have been good stewards of the land. No one is arguing that." But, she said, "can they continue to be good stewards? Not with the development pressures you have in this region. We can't be certain of the future. It's necessary to have this kind of review to protect these resources."
The 8,700 acres that were designated represent an ecological system "that works, and there aren't a whole lot left in the state that haven't been impacted. So why not protect it and celebrate it?" Williams views the ACEC showdown with some bitterness as well. In an article for Sanctuary magazine, a publication of the Massachusetts Audubon Society, for which she works, Williams castigates "property rights zealots."
On the subject of seeking ACEC designations, she advises against bringing elected officials into the nomination process, because they will "fold up like paper parasols on grapefruits when buffeted by a political breeze. You need only 10 nominators. Use committed environmentalists with strong spines."
To Casale, her advice is proof that the ACEC program is in the hands of environmentalists opposed to development.
The nomination process needs to be beyond reproach, he said, and elected officials representing the views of constituents should not be so readily dismissed.
"Of course they want to put the brakes on growth. But not this way. This is back-door," he said.
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Then I read your comments further, and saw your reference to the second amendment. 'Okay,' I sez. 'Now he's got my attention.' Some of you FReepers know how to segue one politically sensitive issue into another....very adroitly, I might add.
Sort of on the subject at hand (different state; same homegrown insanity):
I have a friend in our township who designed his own home and had chosen the perfect spot on his twenty-acre tract of woodland upon which to construct it. After all of the preliminary surveying, building permit obtaining, etc. (I don't know the actual specifics regarding what bureaucratic department did him dirty, and it's too late at night to call him for that info :), he was told that he could not place the house on the spot he had chosen (or anywhere within a stone's throw of that ideal location) because what amounted to three (by my personal description) 'puddles' (not even standing water -- simply somewhat 'mushy' areas of ground), the largest being no more than maybe twenty feet in diameter) had been declared 'wetlands' (no doubt by some dolt in the employ of none other than our own EPA).
My parenthesis key is wearing out.
Note: When he purchased the property, he had not intended to relinquish his freedom to do with it as he pleased in favor of supplying a habitat for ducks (or frogs, or salamanders, or snail darters, or the like). Little did he realize that his (of the people, by the people, for the people) government has re-interpreted the Constitution so as to afford ducks (or frogs, or salamanders, or snail darters, or the like) just as many rights (and sometimes more) than (human) taxpayers.
After much teeth-gnashing, and (foolish) visions of perhaps bucking the system in the courts, he simply caved to the powers that be (in this case, not necessarily the decision of a coward, but rather the decision of a realist who had other options at his disposal, and whose time is too valuable to fight the insanity....this go round, at least.)
They've just got to be amazed that they've got this far as it is without being tarred and feathered, then hung.
Can't agree with you there, Mr. Landru. They' are not amazed at all. They are cowards who, if there were the slightest chance of their being the object of a tarring and feathering -- let alone a hanging -- they would cease and desist immediately. (They do not really feel our pain, but they are acutely aware of the potential for their own). They know full well that the chance of a public outcry grows smaller by the day (due, at least in part, to the results of your they've had our kid's minds via the schools for years observation). These are the people who govern, finger to the wind, by polls and frequent measures of political climate. Yes, they have a fixed agenda, but they do not ever attempt to put each incremental piece of it into place until they have mapped out their (generally covert, specific and devious) plan of action, and until the sheep have been suitably prepared for shearing.
Can you tell that it's been a long day and I'm cranky? Pass the eggnog....
These "pave and pack" developers meet a legitimate market need for affordable housing solutions. If they didn't, they wouldn't be in business.
In reality, those developments are strikingly ugly, almost without exception. The houses are crammed together, and the designs are generally very unattractive. It need not be that way -- as the layout of older developments demonstrates. The design constraints behind "Pave and Pack" are various, but one major design consideration is indeed to maximize the number of houses within a given space.
Beyond that, standard house design (drive into garage/enter house, and the lack of useable front porch) tends to keep people out of their front yards -- it's harder to maintain a "neighborhood feel". (Having lived in newer and older areas, I know this to be true.)
Finally, the usual approach is to build a huge number of houses in a formerly rural area. Existing infrastructure is generally vastly undersized, which means that the city/county taxpayers are forced to pay for arterial development, drainage, fire/police protection, etc.
Your opinion. They are attractive enough to sell or the developer losses money.
it's harder to maintain a "neighborhood feel".
Obviously not a great concern to those doing the buying, or again the developer's houses would not sell.
Existing infrastructure is generally vastly undersized, which means that the city/county taxpayers are forced to pay for arterial development, drainage, fire/police protection, etc.
Then you should be tickled pink that the developer has maximized the number of taxpayers per acre. This creates a larger tax base and reduces everybody's share of the increase.
A little NIMBY always seems to crop up amongst those that have already "got theirs".
This is right in my neck of the woods...next town over as a matter of fact.
I am a Town Meeting member and this type of "get it done quick while nobody is looking" type of thing goes on all the time up here.
We've caught the town Board of Selectmen and the Sewer Commission a couple of times, trying to ramrod warrants through that would benefit industry at the expense of residents.
They're like little kids. You have to watch them every second of the day.
The NIMBY label is usually dispensed by those who claim that whatever is being put in my back yard, imposes no actual costs upon me. To see whether the label applies to a personal concern about housing developments, let's see if we can identify any legitimate costs that they impose upon me.
One additional cost I face is higher taxes to pay for the aforementioned infrastructure improvements. Thus, it's not NIMBY, it's NIMW (not in my wallet). You tacitly admit this when you say: This creates a larger tax base and reduces everybody's share of the increase.
IOW, the development raises my taxes, just not as much. Of course, my taxes wouldn't increase at all if the development wasn't built in the first place, or if the developer/home-buyers paid for the imposed costs.
I'll take your comment as an admission that the new developments involve real monetary costs to ME -- which was the point that editor-surveyor refused to acknowledge.
Beyond taxes, if the development is near me, I face increased noise, pollution, and traffic. This is not NIMBY either, as these factors impose real costs on me.
By affixing the NIMBY label, you're apparently really saying that I have no legitimate grounds for complaint, given that the development isn't on my property. However, that's only true if the development imposes no costs on me -- and as we see, that is not the case. Of course the developments do impose costs.
Whether the benefits of the development outweigh the costs is a different question. But to deny that there are costs -- as editor-surveyor did, and you appear to be doing -- is ludicrous.
Having the developer pay for the imposed costs is within your reach through zoning laws that require the same. If this cannot be accomplished in a cost effective manner, the developer will be forced to abandon the project and those that would have bought new the new homes are just "out-of-luck."
On the other hand, aren't you fortunate that those who arrived before you didn't feel the same way about you.
Well, yes. Of course, the developer has a substantial financial stake in opposing that sort of law. The ensuing battle pits a few average citizens against a large developer who can afford to make campaign contributions to the right people, and who can afford to have folks working full-time to get the development approved without such changes. It's generally very difficult to beat the developers at this game.
If this cannot be accomplished in a cost effective manner, the developer will be forced to abandon the project and those that would have bought new the new homes are just "out-of-luck."
Either that, or the developers build anyway, under the assumption that the taxpayers will pick up the difference.
Either way, the taxpayers generally end up footing part of the bill.
The imposed costs and the manifest difficulty of fighting the developers head to head, explain the popularity of the tactics used in the Massachusetts case that started this thread. It's not right, but it's understandable.
My original point was simply that there are two sides to the issue: there are wrong reasons to oppose development, but also some legitimate ones.
Always.
I don't have any stake in MA housing developments (and based on the strength with which you voice your concerns I don't think I would invest in any right now!) But, I have always had a soft spot for those who are willing to risk their own money in the pursuit of greater wealth, it must be my inner capitalist.
The unemployment lines will always contain an insolvent developer who gambled and lost. It's not a career that guarantees security. However, the opportunity for substantial profit will always keep the field well stocked.
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