Judge Rejects Neighbors' Pleas Over Katama Farm, Supports Current Usage

Gazette Senior Writer

In a detailed decision that explicitly recognizes the value of a 190-acre, town-owned farm in the Great Plains section of Edgartown, a superior court judge late last week soundly rejected a request from a group of neighbors who are trying to shut down Katama Farm.

"The public has a strong interest in Katama Farm not being left vacant," declared the Hon. E. Susan Garsh, an associate justice of the superior court. In a 16-page ruling issued on Friday afternoon, Judge Garsh denied a request for a preliminary injunction to halt the startup of a new operation at the farm.

The ruling is a serious setback to the four neighbors who have mounted a public campaign against the town and the farm in recent weeks.

The FARM Institute, a fledgling nonprofit group dedicated to promoting sustainable agriculture through education and active farming, is in the final stages of inking a long-term lease for Katama Farm. Acquired by the town in 1979 through a unique joint town and state conservation purchase, Katama Farm has been leased out for a series of farming operations over the last quarter of a century. The Edgartown conservation commission is the landlord.

The conservation commission voted four months ago to grant a lease to the FARM Institute; the lease is not yet complete, but the conservation commission gave the institute permission to begin some activities at the farm, including haying and fence building.

Ten days ago Katama neighbors Seth Welcom, Thomas Burke, Robert Jackson and Robert Farwell went to court in an effort to block the startup.

Among other things the neighbors claimed that the conservation commission had no authority to enter into a lease for the farm, that active agriculture is not a stated public purpose for the farm under the terms of a state Self-Help grant, and that the new farmers are violating the terms of the original purchase by limiting public access, i.e. fencing the fields.

Arguments were heard in Bristol County Superior Court on Tuesday last week on the request for a preliminary injunction.

Three days later Judge Garsh ruled against the plaintiffs on every point, finding that their chance of success on the merits is about zero.

"The plaintiffs are unlikely to prevail," the judge wrote repeatedly throughout the decision. "And any injuries on which they base standing are speculative, remote and indirect," she also wrote.

The judge found that at Katama Farm open space, conservation and agriculture are not at odds with each other and in fact are in concert - both in stated goals and in actual practice.

"Members of the public who wish to enjoy the open space of Katama Farm have access to its open land. Two large signs at the farm's entrance state that Katama Farm is open to the public. The public has vehicle access to all dirt access roads and parking in the barnyard area," the judge wrote. She also wrote:

"The plaintiffs are not likely to prove that the activities the Institute proposes to do on Katama Farm . . . fall outside the scope of agricultural, conservation and passive recreation purposes. . . . It is extremely unlikely that meeting the obligation ‘to be open to the general public' will be deemed to require that every inch of the property be left in its natural state for walking upon with no fencing to contain animals and no plantings."

The judge also noted that the plaintiffs omitted key information from their complaint, including a special town meeting vote in 1993 that gave the conservation commission exclusive authority to be the landlord for the farm, an act of the legislature in 1994 that allowed long-term leases for the farm and the complete list of stated goals in the Self-Help grant, which include open space, recreation and agriculture.

In an unusual footnote, Judge Garsh said she would consider a request by the town attorney to award fees and costs if the case goes forward.

An award of fees is extremely unusual in Massachusetts courts.

The 1979 Katama Farm purchase was done through seven town meeting articles and three separate acquisitions - a five-acre parcel, a 23-acre parcel and a 160-acre parcel. All buildings are restricted to the five-acre parcel. The remaining two parcels are dedicated to open space and farming. The 160-acre piece was also the subject of a state Self-Help grant.

At a special town meeting in 1993 Edgartown voters unanimously endorsed two extra steps in connection with the farm:

* They granted the exclusive authority to the conservation commission to execute leases for the farm.

* They approved a home rule petition asking the legislature to pass a bill authorizing leases that run for longer than 10 years and exempting the farm from the state public bidding law. The legislature passed the bill in 1994.

Both steps were necessary in the aftermath of a state supreme court ruling in a case between the town of Duxbury and a cranberry grower. The attorney for the plaintiffs in the Katama Farm case failed to note the 1993 town meeting votes and the vote of the legislature a year later.

Yesterday Ellen Kaplan, an Edgartown attorney who represents the four neighbors, was circumspect about the ruling.

"I think it's a very thoughtful decision that is very instructive to both sides," Ms. Kaplan said.

She declined comment on the omissions of key information. She also could not say whether the plaintiffs will go forward and press the case on the merits.

Edgartown town counsel Ronald H. Rappaport hailed the ruling as an important victory for the town and also for farming on the Vineyard.

"The judge thoroughly examined every document pertaining to the town's acquisition, ownership and management of Katama Farm for the last 25 years, and she specifically found that the town through its conservation commission has acted appropriately, responsibly and consistent with the wishes of town meeting," Mr. Rappaport said.

"These plaintiffs have only one resort and that is to go to the public hearings just like every other citizen - but they have no special standing and no special rights," he said. "We draw comfort from the judge's explicit finding - which is very unusual - that should this case be pursued, she will consider whether the town will be awarded costs and attorneys' fees."

Mr. Rappaport did not stop short of calling the case frivolous.

"Yes, it is, because there is no legal basis to support it. This case belongs in the political forum and not the legal forum," he said, concluding:

"The conservation commission should be applauded for acting in the public interest. This is a really hard job. People who are involved in farming on the Vineyard know that it is very hard to operate a working farm - the soils are tough, the economics of it are tough and the conservation commission over the last 25 years has done the best job it can to try and keep farming alive at Katama Farm. They should be applauded for that and not criticized."