What does the Wekepeke restriction actually say?

Even though the Clinton Board of Selectmen has voted unanimously to reject Nestle’s Wekepeke proposal (and you know it had to be a bad proposal for it to be rejected by a 5-0 vote…Clinton could resolve that the sky is blue and it would only pass by a 3-2 margin), there are still important questions facing the board that will affect the future of the Wekepeke.

Foremost is the question of the Conservation Restriction, which needs to be worked out in the next few weeks if Clinton is to receive $353,000 in grant money to help preserve Rauscher Farm. From the Item:

Selectmen entered into closed executive session to discuss a conservation restriction on the Wekepeke. Clinton and the state have an unfinished deal on the table and both sides have agreed to finalize it. Clinton gets ownership of 17 acres of land next to Mossy Pond from the state. The state gets a conservation restriction on the Wekepeke....

In 2004, the state legislature approved creating a conservation restriction. The state said, with the restriction in place, “the town of Clinton retains the rights to use water in the Wekepeke watershed lands as a potential water supply for the town.”

This and every other article I have seen on the issue refers nebulously to “a conservation restriction” without actually specifying what the conservation restriction says. I have searched “the Google” and come up empty; I’ve looked on the town website and found nothing; I’ve checked the state Division of Fisheries and Wildlife site and drawn blanks. Which begs the question: What is in the Conservation Restriction?

Some evidence in the local press suggests that whatever is in the CR, it has been changed due to the questions that have arisen in the discussion around the Nestle proposal. Take this note from Tony Marini’s column in the October 3 Times & Courier:

The story behind this conservation restriction is too involved to be discussed in this column, but it should suffice to say that the language of the restriction has been changed in a manner such that Clinton will be allowed to fully realize the future potential of this valuable town resource. The state now is in possession of the modified conservation restriction, and the Department of Conservation and Recreation promised prompt action to ratify this agreement.

Why should it suffice? Tell us what the changes are. For that matter, if there have been changes tell us what the draft said before the Nestle controversy. I can’t find any document stating one way or the other, and since the Board of Selectmen routinely goes into executive session when discussing the restriction, I guess no one really knows for sure. Isuppose Marini may have information about the restriction, considering that he is a vocal supporter of both the Rauscher purchase and of the three members of the Board of Selectmen who make up its majority on the bulk of the town’s issues. Was his comment on the CR an informed one?

Why does the board goes into executive session to discuss the CR? As far as I can tell, a discussion of a Conservation Restriction is not one of the nine reasons that a public board can go into executive session. Only one of the nine reasons even remotely applies:

Exception Six - "To consider the purchase, exchange, lease or value of real property, if such discussions may have a detrimental effect on the negotiating position of the governmental body and a person, firm or corporation."

This exception recognizes that public discussion of negotiations might increase the eventual price paid by the government. As with the collective bargaining and litigation exception, the governmental body must show that an open meeting might have an adverse impact on the body's negotiating position with a third party.

But the Board of Selectmen is not discussing any issues that would "increase the eventual price paid by the government." Clinton isn't paying anything. I don’t see where the Board has a basis to meet behind closed doors. It only takes three registered Clinton voters to force the Selectmen to either open the CR meetings or show cause for why they should be held in executive session…are there not even three Clintonians who want to know what is going on with the CR?

In any event, unless someone forces the Board to "show that an open meeting might have an adverse impact on the body's negotiating position with a third party," we are left to guess at the terms of the CR. Right now, we only know what the Conservation Restriction could be. The 2004 act that authorized the conservation restriction states (relevant sections quoted, emphasis mine):

SECTION 2. The town of Clinton may convey fee interests, easements or lesser interests in land through conservation restrictions under sections 31 and 32 of chapter 184 of the General Laws in certain lands it owns in the towns of Sterling and Leominster....

SECTION 3. The purpose of these land transfers is to ensure the preservation and protection of wildlife and habitat, and for passive recreation and consistent purposes. The parcels known as the Wekepeke Watershed Lands were taken or acquired by the town of Clinton and used for watershed and water supply purposes. The conservation restrictions authorized herein shall allow for the continuation of such purposes on all or a portion of the parcels, however the conservation restrictions may restrict or regulate, but not unreasonably limit, the acts or uses associated with conducting such purposes....

SECTION 4. The town of Clinton retains the rights to use water in the Wekepeke watershed lands as a potential water supply for the town.

A lot has been made about Section 4 (the paragraph from the Item at the top of this post appears verbatim in a number of their stories on the subject, they clearly just cut and paste it from one article to another); Section 4 is self explanatory (although it doesn’t suggest whether or not a Nestle-style plan would fall under a “potential water supply for the town." Opponents say it doesn’t.). Section 3 suggests that the conservation restriction “may restrict or regulate, but not unreasonably limit,” those “water supply purposes.” Would a prohibition on a Nestle-style plan unreasonably limit Clinton? It’s not specified.

But while Sections 3 and 4 are important and relevant, Section 2 is also important since references the General Laws in defining what activities can be permitted or limited under the definition of a conservation restriction. Here is the section referenced in the act (bullet format added for clarity):

A conservation restriction means a right…to permit public recreational use, or to forbid or limit any or all

• (a) construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground,
• (b) dumping or placing of soil or other substance or material as landfill, or dumping or placing of trash, waste or unsightly or offensive materials,
• (c) removal or destruction of trees, shrubs or other vegetation,
• (d) excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance in such manner as to affect the surface,
• (e) surface use except for agricultural, farming, forest or outdoor recreational purposes or purposes permitting the land or water area to remain predominantly in its natural condition,
• (f) activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation, or
• (g) other acts or uses detrimental to such retention of land or water areas.

So what are the terms of the CR? Is it simply to "permit public recreational use" but not restrict any other activities? Did the earlier drafts forbid or limit construction, or the removal of vegetation, or excavation? Would “activities detrimental to…water conservation” or the “retention of…water areas” have be prohibited? If so, is the Clinton Board of Selectmen using their executive sessions to change the restriction “in a manner such that Clinton will be allowed to fully realize the future potential of this valuable town resource”?

The Clinton Board of Selectmen should hold these deliberations in public so the townspeople can see the terms of the agreement, and so they can see if the agreement has been changed due to the discussions with Nestle.

Previous coverage of the Wekepeke:
April 11: Clinton does the right thing
April 9: Sterling should offer to buy Wekepeke at Nestle's price
April 6: Sterling selectmen to oppose Wekepeke plan, but to what extent?
April 4: Vermont looking to restrict Wekepeke-style projects
March 27: This can't be helpful
March 25: Tough decision ahead for Clinton
March 21: Nestle's proposal could change everything
March 21: Nestle nominated for "Corporate Hall of Shame"
March 19: Sterling Selectmen disappoint at Wekepeke forum
March 16: Sterling should oppose Nestle...the right way

Tags: Massachusetts Clinton Sterling Nestle Wekepeke