To: From: Date: Re:

Members of the Amherst Conservation Commission Cinda Jones 5/22/2013 Town Meeting Article 43 (Eminent Domain taking), and ROFR Consideration

This memo will outline a few of the reasons why the Amherst Conservation Commission should oppose Town Meeting Article 43, a petition article asking that the town invoke the seldom used power of eminent domain. The points in this memo also recommend against the Town using its Chapter 61 Right of First Refusal on the subject parcel. 1. The Town of Amherst and Cowls have a generations-long relationship and partnership based on mutual respect for conservation and development objectives. We share maps and information about conservation priorities and development opportunities. Just a few past examples of the Town and Cowls working together include Cowls providing land around Atkins Reservoir for watershed conservation; Cowls selling the town its Market Hill Road Water Treatment Plant parcel; Cowls selling an Agricultural Preservation Restriction on its Meadow Street land that was identified as a town priority for conservation; Cowls allowing miles of town recreational trails over its timberland. The Town of Amherst map to the right shows in grey Cowls timberland; in green Town of Amherst Conservation land; and in blue Town of Amherst watershed land. Missing is town recreation land (like Cherry Hill Golf Course) which even further connects our parcels together. Over the years, the Town of Amherst has prioritized parcels it wants to conserve in order to expand its existing contiguous conservation land base and protect its watershed. The Parcel targeted by Article 43 does not rank high as a conservation priority of the town, or of local land trusts. It has no Natural Heritage bubbles or any endangered species or rationale for protection other than its a large contiguous parcel of forest land. Of the 600 acres Cowls owns in North Amherst (map of Cowls land to left), its the least worthy for conservation. 2. Conservation Groups Will Not Be Interested in this Site. This parcel is not ecologically unique; its development potential and cost to acquire are high; and its acres gained

for dollars to acquire are low. Much larger tracts nearby, with higher conservation value, (such as Cowls 1,300 acre Pelham Hills parcel) can be bought for comparable money as 150 developable acres in Cushman. The Petition Article asks the town for 30% ($1,200,000) of the funding required and says that the additional 70% will come from other sources. The targeted funding amount is insufficient to reach Landmarks $6,500,000 offer, therefore passing Article 43 would potentially put significant financial liability on the town. Moreover, the list of conservation funders identified on the Save Cushman list of donors to approach are conservation partners of Cowls -- many of whom partnered in the recent protection of the Paul C Jones Working Forest a 3,486 acre Conservation Restriction the largest parcel of land the state has ever protected. To reiterate a point made above, 96% more land (3,486 of the highest conservation priority acres manifesting in a conserved a mountain range), have been protected within sight of the Cushman parcel for just 27% more money than it would cost to take the 150 acre Landmark property. Asking past and future conservation partners of Cowls to fund petitioners confiscatory Eminent Domain Takings of 150 acres from Cowls is not likely to be considered favorably. Its not in these organizations best interests to act against Cowls when it could jeopardize several alreadyidentified, much larger and more desirable future conservation projects. Conservation organizations as a rule only participate in land conservation projects when theres willing seller. By definition Eminent Domain means the seller is NOT willing. 3. The Town of Amherst has Actively Assisted and Planned for the Development of this Site. When Stan Ziomek was the Department of Public Works director in Amherst, he negotiated the town buying the water treatment site property (large pink structure on photo to right) from Cowls. In addition to monetary payment for the land, the town stubbed a future subdivision road entrance and led utility hook ups to Cowls land to the southwest of the water treatment facility in order to facilitate future development of this parcel. Development of this parcel has obviously been in the long term plans of the town. 4. Salamander Habitat will be respected by Landmark even though Yellow Spotted Salamanders arent threatened, nor endangered, nor legally/environmentally protected in any way. Landmark understands that the town loves its salamanders and has agreed to study and respect the integrity of salamander habitat, and build away from Henry Street. 5. Landmark isnt going away if this site does. The second most desirable and viable location for a student housing development is Cowls 150 acres around Cherry Hill Golf Course. Landmark has expressed interest in several parcels of Cowls land. With Cowls, Landmark determined that the Cushman site was most appropriate and least environmentally impactful of all other possibilities. If the Cushman property is taken off the table by the town or for any other reason, the Pulpit Hill location will be pursued next. The town ranks the Pulpit Hill site higher than the Cushman site as a conservation priority. Of the four Cowls-owned large parcels identified in #1 above, the Cushman site is the only one in a Village Center circle and on town water and sewer. Its also the only site, identified as developable that doesnt have natural heritage areas, aquifer

tributary status, or any significant connecting town conservation parcels. Of all the development options available, the Cushman Center parcel is the most reasonable. 6. Article 43 is not legally defensible. Town Meeting Article 43 proposes that the Town seize by Eminent Domain a Conservation Restriction on W.D. Cowls private property for the express purpose of stopping a residential subdivision to house students. There is a "public purpose" requirement for Eminent Domain takings. Massachusetts court cases have blocked eminent domain takings done by town meetings to block housing projects. Stopping development projects has been determined in courts not to qualify as a public purpose. Stopping the Retreat student housing project has been clearly expressed in video and writing as the reason for petitioners Article 43. 7. Amherst already owns or has protected a third of the town. This map to the right shows that Amherst has already permanently protected 27.3% of its land base a whopping 4,849.5 acres out of a total of 17,762 in town. With all the demand we face for affordable, senior, family, and student housing, isnt it time to allow something to be built somewhere? 8. A huge percentage of Amherst remains forested. The master plan map to the left clearly shows in dark green all the forested land in Amherst. 7,591 out of 17,765 acres are forested Proving, despite what project opponents claim, the Retreat parcel is absolutely not the last forested parcel in North Amherst. 9. Where can we build? The 2005 Town of Amherst map of developable land to the right demonstrates there arent a lot of choices left for places that can be developed. And there are no ideal sites. All the easy sites and sites in close proximity to UMass are already built. The below map to the left demonstrates that 33.5% of Amherst is already developed. 10. The newest development proposal is always too far out of town, and the people who live in the last subdivision protest the next. When Barry Roberts dad, Ev Roberts wanted to buy the downtown Amherst block thats now restaurants and stores (including Souper Bowl and Food for Thought books), the First National Bank of Amherst would not loan him the money because the president said That location is too far out of town and its not a good investment. So Ev bought it with cash. When Pufton Village was built on what was once part of the Swartz Family Farm land, everyone said it was too far away from UMass. Time and population growth change perspective. 11. Landmarks Cushman site achieves a major Master Plan goal to push future development inside the Village Center Circles and on town Water and Sewer systems. This map shows the Retreat site is within the and mile from Cushman Village Center circle targeted. Its equidistant to UMass as Cowls Road in North Amherst, another VC site on the bus route - one where a majority of Town Meeting members feel development should occur. Note: There is a

star at the Salamander Crossing indicating that this is a special place identified by people at the focus groups. Landmark respects this wish and will work to avoid this area with its development. In conclusion, it should be pointed out that there is conservation opportunity in development. A conservation-minded development could be encouraged with allowed density built on the smallest footprint possible. All undeveloped land beyond the footprint of the Retreat could be potentially donated to the town as permanently protected open space. At a time when Cushman Common is growing smaller and less easy to access through traffic, this project could benefit the Community of Cushman and the towns conservation goals by providing a very large parcel of public land for recreation, gatherings, and events. The salamander area could be owned by the town and served by the Hitchcock Center for the Environment. Please help permanently protect a majority of this parcel by enabling a smart conservation subdivision on the rest. We dont have to buy every acre to protect it permanently. Thanks for your consideration of these points. Sincerely, Cinda Jones 9th Generation and President