[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.
