The town owns about 148 acres of the non-working farm within Dalton; another four acres is across the border in Windsor. The APR has been in place for 30 years.
DALTON, Mass. — Town officials are wading through regulations that complicate their attempts to sell the Bardin property.
The 148 acres of land made up of three parcels came into the town's possession in 2016 in a taking for delinquent taxes. The town had first placed a lien against the property in 2009.
However, there's a fourth parcel still owned by the Bardin estate in Windsor and an agricultural preservation restriction that covers all four contiguous pieces of the farm that would seem to prevent Dalton from selling its portion.
This issue was apparently not brought up in land court when the town took the land.
The invitation for bids is still being finalized and reviewed by the town's legal counsel to discern the best language to use. Officials expect it to be ready by next week for publication.
A resident raised the issue of the Windsor land at that meeting, warning that selling only the Dalton land could violate the state APR. He suggested having one entity buy both the Dalton and Windsor land as a way to resolve the problem.
However, town officials cannot guarantee that since the town has no control over the privately owned Windsor land.
The state Department of Agricultural Resources paid the late James Edgar Bardin $260,000 in 1991 to place an APR on his farm. The agreement also gives the state the right of first refusal if the land is to be sold. A waiver from MDAR would be required for a sale to any other entity.
The preservation program was the first of its kind in the nation when it was enacted in 1977 to
encourage farmers to maintain their land for agricultural use by paying them the difference between the fair market value and the fair market agricultural land value.
In exchange for this payment, there is a "permanent deed restriction which prevents any use of the property that will have a negative impact on its agricultural use," according to MDAR's guide.
"Since its enactment nearly 1,000 farms totaling more than 73,000 acres have been protected allowing farm owners to access the equity in their land while still maintaining ownership of it," said MDAR spokesperson Phu Mai.
According to the agreement, the APR cannot be subdivided and can only be sold when unified. But the problem is that the APR became subdivided when the town took possession of three lots located in Dalton, separating them from the four acres in Windsor.
A lot of variables, including the soil and property viability, is considered by the field representative and landowner when considering what parcels to place under a restriction, APR Acquisition Planner Michele Padula explained.
Depending on the situation, a farm may be made up of multiple APRs or a single APR will be placed on multiple parcels.
MDAR does not want a viable farm to slip up into a bunch of small pieces without approval. So if it finds that several different parcels are viable and they make up one viable property, then they are protected under one restriction.
If there are separate APRs for multiple parcels, then they could all be sold separately and there will no longer be a viable farm.
Mai said the only way to release the APR is if the owner is able to demonstrate that the land is not suitable for agriculture or horticulture.
Last month, the board reviewed the draft of a bid invitation developed by town counsel KP Law, the state Inspector General, and Town Manager Thomas Hutcheson.
The original language specified that a "successful proposer" must own or have an enforceable contract to acquire the four acres in Windsor, read Chairman Joseph Diver, "prior to or concurrently with the closing on the property" with the intent to unite the APR under single ownership.
However, state procurement laws require bidding be competitive and this language did not seem to meet that standard.
Select Board member John Boyle strongly opposed Diver's proposed language saying, he is not in a position to "change what has been legally determined to be the best solution to this problem" by "the best legal advice available in the commonwealth."
The board then approved Diver's proposal to change the original language to say a "successful bidder will be liable to clear all issues with MDAR" and that "any bidder who hasn't a purchase and sale agreement with the Windsor parcel on the date of the bid is not eligible to bid" unless that agreement is voided prior to the bid date and time.
The goal of this language would keep the bid competitive to fulfill the state procurement laws.
"If the town was aware that someone had a contract on the property that would be problematic, but if the town was not aware of a current contract, that would be considered to be competitive bidding," said attorney Katharine Klein of KP Law, who attended the meeting. "I think this is a very, very difficult situation … I think it would be in lieu of the language that's there now and I do think that that would be legal."
Klein said the language could be cleaned up but noted that it is unclear what the end result will be. If someone bid for the property in Dalton without having the ability to buy the Windsor property, MDAR may not sanction the transaction, she said.
"I personally think that MDAR is being unreasonable and has been for a long time, but that's just my personal opinion," she said following this explanation.
The situation became more complex when Boyle claimed there has been a purchase-and-sale agreement in place for six months on the Windsor property that town counsel and other board members were unaware of.
If the town is aware of the agreement, then the bidding becomes noncompetitive.
Diver said in a follow-up interview that the town as a last resort may have to call on its representatives to introduce a home rule petition to the Legislature to resolve the situation.
State law does provide for the lifting of an APR
should "two-thirds of both branches of the general court, by a vote taken by yeas and nays, vote that the restrictions shall be released for the public good."