Press Release: October 5th, 2020
FOR IMMEDIATE RELEASE
Mass. Appeals Court Sets Precedent for Conservation Land Damage
Wellesley Conservation Land Trust Wins Appeal with Support of The Trustees of the Reservation and Massachusetts Land Trust Alliance
Under new case precedent, an owner of Conservation Restricted property who violates the Restriction by clearing the land may be required to pay money damages in addition to restoring and replanting the land, according to a decision issued by the Massachusetts Appeals court on August 10.
In response to a Wellesley Conservation Land Trust (WCLT) lawsuit against Wellesley landowners, the three-judge Appeals Court unanimously held that monetary damages can be awarded to the WCLT for the landowners’ violation of a Conservation Restriction. The landowners had cut and removed 23 mature trees to construct a sports court, fencing, and lighting on a portion of the clear-cut land.
Initially, the case was brought to the Superior Court by the Wellesley Conservation Land Trust when it was known as the Wellesley Conservation Council. The Council was responsible for enforcing the Conservation Restriction established by the Haffenreffer family in the 1970s to keep the land in its natural, undeveloped state. The present landowners, Robert and Cheri Pereira, admitted they were aware of the Conservation Restriction when they violated it.
The landowners argued that they had restored the land by removing the sports court and planting saplings to replace the decades-old trees they had cut. When the Superior court ruled that no further damages could be recovered, the WCLT successfully appealed that decision.
Judges Vuono, Lemire, and McDonough of the Appeals Court agreed that the removal of the sports court and the planting of saplings did not compensate for the actual time it would take for the land to return to its original state, given that some of the mature trees were up to 36 inches in diameter. The case has been remanded to the Superior Court for further proceedings.
According to lead attorney, Andrew Phelan, “The Wellesley Conservation Land Trust plans to return to Superior Court to seek reasonable monetary damages beyond the mitigation work the landowners have already performed. The Trust will use any recovery to further the conservation goals of its charter.”
In response to the Appeals Court ruling, WCLT President Frederick Fortmiller said, “There are many good reasons for a landowner to establish a Conservation Restriction on property to preserve it from development. The benefits that generous landowners confer on property are significant and well known. In return, the landowner benefits from lower property taxes on the land, so in this case, seeking monetary damages for a violation seems appropriate.”
Mr. Fortmiller added, “The WCLT is extremely grateful for the supporting ‘amicus’ briefs given to the Appeals Court by The Trustees of Reservations, the oldest land trust in the nation, and the Massachusetts Land Trust Alliance, an association of land trusts in the Commonwealth.”
The WCLT President gave “particular thanks” to Mr. Phelan, the law firm of Morgan, Lewis & Bockius, and attorney A. Lauren Carpenter for their contributions to “the precedent-setting conclusion.”
The Appeals Court Case is “Wellesley Conservation Council, Inc. v. Robert W. Pereira and Cheryl L. Pereira et al,” Mass. App. Ct. No. 2019-P-0753.
The WCLT is a 501(c)3 non-profit staffed by volunteers to maintain and promote land conservation to benefit the public and protect the environment. It is responsible for enforcing Conservation Restrictions entrusted in its care since 1958. The granting of the Haffenreffer Conservation Restriction was approved by the Wellesley Board of Selectmen and the Secretary of the Massachusetts Executive Office of Environmental Affairs. More information at www.WellesleyConservationLandTrust.org.
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For Press Inquiries:
Frederick V. Fortmiller, President, Wellesley Conservation Land Trust
fortmiller@comcast.net
Andrew C. Phelan, Phelan Law LLC
Phelan.law5@gmail.com
Tel: 617-306-1673