Conservation Commission member Hank Art shared what he learned from his discussions with the attorney general's office.
WILLIAMSTOWN, Mass. — The Conservation Commission on Thursday began the process forming an official opinion on the conservation status of town-owned land under its care, custody, management and control.
At issue, primarily, is the status of the Lowry and Burbank properties and whether they are protected by Article 97 of the Commonwealth of Massachusetts.
Although the immediate controversy that swirled around the lands last year has died down, the uncertainty about their status — particularly in light of an opinion rendered by town counsel — drove the commission to study the matter further.
"Make the assumption we determine that Property A is covered by Article 97, then we are able to put that in the land record," Chairman Philip McKnight said. "It's not binding as far as the law is concerned until a judge makes a determination ... but our opinion would be on the record.
"We can't put it on the deed, but we can put it on the land record and it would be associated with the deed. ... It would be part of a title search."
Several times during Thursday's meeting, it was noted that a judge's decision — and the lawsuit that would necessitate such a decision — may be needed to settle the question of whether the land is covered by Article 97.
Such a resolution appeared to be in the offing a year ago when the Board of Selectmen asked the Con Comm to consider relinquishing all or part of either the Lowry or Burbank parcels for the purpose of building affordable housing.
While a lawsuit may or may not have been in the cards, Commissioner Hank Art told his colleagues on Thursday that at the very least the attorney general's office may have provided some clarity had the Selectmen not withdrawn their request a few weeks after making it.
"The attorney general's office didn't want to opine on a hypothetical," said Art, who was acting as the commission's liaison with the state office. "As long as the Selectmen requested land be used for a purpose other than conservation, [the AGO was] warming to the idea of giving an opinion. As soon as the request was withdrawn, the AG said they were not involved."
Art said representatives from the attorney general's office did tell him off the record that they were not sure how Williamstown's town counsel arrived at its opinion.
Art offered his own suggestion that the question of the lands' status was settled by the fact that the town had, by a two-thirds, "super majority" placed them under control of the Conservation Commission. At one point, he said the commission's current deliberations may be moot.
Most of the commission's deliberation on Thursday revolved around the process of those deliberations. But several comments from town residents went more directly to the heart of the matter.
Kenneth Swiatek of Stratton Road, a frequent and vocal advocate for non-development of the Lowry property during the height of the controversy, offered the commission as part of its evidence a recording of the 1987 town meeting when the land was transferred to the control of the Con Comm.
Swiatek read from the transcript of his reporting, in which, he said, the town manager at the time could be heard explaining to voters that the motion before them would make the land impossible to get out of conservation without "a two-thirds vote of the Con Comm, a two-thirds vote of town meeting and a two-thirds vote of the Legislature." In other words, the meeting was being told its vote was making the land subject to the restrictions associated with Article 97.
Two residents addressed the commission to ask it not take any action that would put Lowry or Burbank off limits to future development.
The secretary of the nonprofit Higher Ground reminded the Con Comm of the loss of more than 200 homes at the Spruces Mobile Home Park that sparked the most recent appeals to build on Lowry.
"Higher Ground recommends no further restrictions be placed on the properties ... until such time as the town finds uses that better serve the public good," Carol Zingarelli said.
Higher Ground President David Mangun picked up on the "public good" theme, telling the commission that the land should be available for use "without months or years of delay."
Mangun went further, saying that the opposition to developing Lowry came from " a small but vocal group interested in personal and private uses of the land."
"A view from an already-established housing development is not furthering a public good," Mangun said, likely referring to the Stratton Hills Condominium Association, which last year hired the Pittsfield law firm Cain Hibbard and Myers to draft a counter to the town counsel opinion on Lowry's status.
The Con Comm offered no direct response to the appeals from Zingarelli or Mangun.
After a 40-minute discussion of the issue, McKnight outlined a plan for the commission's next meeting, noting he did not expect a resolution of the complex issue at a single meeting.
"It's a complicated process because whatever we do, nothing is going to go on the land records until Town Counsel has approved the language," McKnight said. "It's an area we as a commission have not entered before.
"Let's agree this evening to try and narrow whatever it is we're intending to do at our next meeting by agreeing to the number of properties that are appropriate to subject to further discussion."
As a guide, the commission will rely on research it conducted in the spring and earlier this summer on all nine of the properties under its control, with a particular eye on the question of how each property came to be under its control.
In other business Thursday, the commission:
• Endorsed Art's candidacy to the Berkshire Regional Planning Commission's Woodlands Partnership Committee; the Selectmen is scheduled to make the appointment at its July 28 meeting.
• Approved payments for a cost overrun regarding Margaret Lindley Park's new well to provide potable water to the bath house. The project was running about $6,600 over budget, but the commission was able to cover the expense from an old bank account the current commissioners were unaware of until recently; the account held about $7,300 dollars, leaving a small remainder after the additional expense.
The cost overrun resulted from two unanticipated expenses, Conservation Agent Andrew Groff told the commission. The original plumbing in the building needed to be replaced because it froze and was damaged when it was not maintained after the previous pump failed. And the Department of Environmental Protection required the contractor working on the project to obtain a decommissioning permit on the failed well that was being replaced.
• The commission OK'd three projects for local homeowners and continued a hearing on a fourth.
It allowed Gabriel Pesce to expand an existing driveway at 490 North St., John Denaro and Joel Van Liew to replace the foundation of a single family home at 214 Bressette Road and Bruce Kieffer to replace a septic system in a wetland buffer zone at 350 Hoppper Road.
The commission also faced a request for a new driveway and site improvements for a lot on Summer Street. But after a site visit on Thursday, the commissioners raised concerns about how the wetlands on the site are currently being maintained and how they might be protected if the site is sold as a home lot. Engineer Brent White of Pittsfield's White Engineering, representing the applicant, asked the commission to continue the hearing until its next scheduled meeting on Aug. 14.
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