Land Bank Aid for Woodlands

Land Bank Initiative Offers to Pay 80 Per Cent of Conservation Cost for Southern Woodlands if Oak Bluffs Takes Land


The Martha's Vineyard Land Bank gave a promise in the form of dollar signs to the town of Oak Bluffs Wednesday morning - agreeing to contribute 80 per cent of the cost if the town takes by eminent domain some 276 acres of the southern woodlands.

In a letter from land bank executive director James Lengyel to Oak Bluffs selectmen, Mr. Lengyel said: "The land bank supports public conservation of this land, in its entirety."

"In the case of a full conservation plan, the land bank offers to pay 80 per cent of the expenses leading up to the determination of value. After the court has set the price, the land bank would ask its six town advisory boards to support the issuance of a bond or like instrument to pay for 80 per cent of conservation real estate costs," the letter continues. If the land is only partially conserved, the land bank is willing to negotiate a smaller share of the costs, the letter said.

Two hundred Oak Bluffs citizens signed a petition in late February asking selectmen to take the southern woodlands by eminent domain "for the purpose of conservation, passive recreation, affordable housing and watershed protection, and/or to establish a public camping area." Oak Bluffs residents will vote March 26 at a special town meeting on this article in addition to another petitioned article calling for the withdrawal of Oak Bluffs from the Martha's Vineyard Commission.

Both petitions landed in the selectmen's office after the Feb. 21 decision by the Martha's Vineyard Commission to deny - for the second time in three years - plans by developer Corey Kupersmith to build a luxury golf course in the southern woodlands.

The future of the southern woodlands also hinges on plans by Corey Kupersmith to build a 366-unit housing development under Chapter 40B legislation. Chapter 40B projects allow developers to bypass local zoning regulations if 25 per cent of the houses are committed to "affordable housing." The Martha's Vineyard Commission is currently fighting for the right to review the housing development in the state land court.

A withdrawal of Oak Bluffs from the Martha's Vineyard Commission would give the town planning board the responsibility to approve or deny any potential development proposals for the southern woodlands and any other town land.

The land bank's monetary commitment makes the acquisition of the southern woodlands property by eminent domain more of a viable option for the town.

"Once again, the land bank stepped up to the plate," said Kerry Scott, an Oak Bluffs resident who helped draft the eminent domain petition.

"It's obviously something we've been talking about for quite a while. It was what we hoped and what we expected," said Michael Dutton, chairman of the Oak Bluffs selectmen.

"Obviously they can't give us a dollar amount, and they are allowing themselves room to walk away if the price is too high," he added.

While the price of the property is largely speculative, low estimates based on land value if the area is divided into three-acre parcels come to roughly $14 million. If value is determined based on parcels less than three acres, the price could escalate well beyond $18 million.

If Oak Bluffs takes the property by eminent domain using Chapter 80A , the value of the property would be determined by three court-appointed commissioners. When the commissioners set a final price, the town could decide not to proceed with the sale. In that case, the town would still be liable for costs accrued by the property owner for delayed use of the land. The land bank agreed to cover 80 per cent of those costs as well.

Two-thirds of the voters at the March 26 special town meeting must approve an eminent domain taking in order to grant selectmen the power to take the property. Selectmen, however, are not obligated to proceed with the taking, Oak Bluffs town counsel Ron Rappaport said.

Even if the voters approve the taking and selectmen proceed, the town could face a legal challenge to the eminent domain purchase.

Mr. Rappaport presented a seven-page memorandum to Oak Bluffs selectmen during Tuesday night's selectmen's meeting to explain the legal implications of an eminent domain taking.

Only two cases in the state of Massachusetts serve as precedent for a town taking land slated for a Chapter 40B development. The Massachusetts Supreme Court, in both instances, evaluated the town's "good faith" attempt to acquire the disputed land prior to development applications.

The court ruled in favor of the town in a 1976 case in Chelmsford because the town already had attempted to vote to take the land before the developer filed his 40B application. The vote had not been taken, however, after town counsel noticed a technical problem. The meeting was in the process of being rescheduled when the housing application was filed.

In 1987, the court ruled against the town of Burlington. The developer filed a Chapter 40B application in July of 1985, and the selectmen pushed for an eminent domain taking at a September 1985 town meeting. The court ruled the attempted taking had been reactionary to the 40B application.

"The bottom line is that I can't predict with certainty what the court will do - if it can survive a judicial challenge," Mr. Rappaport said.

After detailing the two previous cases in Massachusetts, Mr. Rappaport said: "Our situation is somewhat more complicated."

At a special town meeting on March 7, 1996, Oak Bluffs residents passed an article to appropriate $38,000 for a feasibility study for a town municipal golf course on the southern woodlands.

On April 3, 1997, an article "to acquire by purchase, eminent domain or otherwise, the land described . . . as the site for a municipal golf course and related facilities [and] that the sum of $7,500,000 be hereby appropriated to acquire such land. . . ." was defeated at the annual town meeting.

On Oct. 3, 1997, a similar article appeared before voters to develop a municipal golf course on land that included part of the southern woodlands. The majority of voters approved the article, but it did not receive the necessary two-thirds vote.

On Jan. 21, 1999, Oak Bluffs voters passed two articles which called for the investigation of possible acquisition of the southern woodlands for passive recreation and watershed protection. The town appropriated $20,000 for the appraisal of the southern woodlands in addition to a feasibility study to evaluate the "need of protecting, possibly by acquisition," the southern woodlands.

On April 13, 1999, the town approved (231 to 6) the enlargement of the zoning density in the southern woodlands to three acres. At the same meeting, voters adopted the Southern Woodlands District of Critical Planning Concern Overlay District.

Lastly, Mr. Rappaport said that a number of Oak Bluffs town boards openly supported the developer's "attempts to utilize the land for a golf course, with the property being protected from further development by a conservation restriction."

The town's long, detailed history and interest in the southern woodlands, however, does not absolutely prove "good faith" attempts to acquire the land for purposes stated in the petitioned article.

"Based on the extent of the town's interest in this property prior to the Chapter 40B filing, however, it is my belief that there is a credible basis for defending a taking - and I would do my best to defend the will of the voters," Mr. Rappaport concluded in his memo.

The land bank's 80 per cent commitment to the property for conservation and passive recreation still leaves the town with the remaining portion of what will certainly be an eight-digit sale.

But news came from Cape Cod this week that the state in conjunction with the towns of Mashpee and Barnstable purchased 215 acres already slated for a golf course development. The state kicked in a third of the $9 million purchase.

"The state has been clear how important [the southern woodlands] are," Ms. Scott said, hopeful Oak Bluffs could tap state money for some portion of its 20 per cent share.

"If we pass the article in March, then the work really begins. We must identify funding sources," Ms. Scott said.