Regional Open Space Planning With True Local Control

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James Lengyel
Author Info

Abstract

Martha's Vineyard Island was given the privilege in 1986 of imposing a special fee on most real estate transfers occuring on the island; the proceeds are used to purchase and manage open space for the benefit of the public. A unique power- and revenue-sharing arrangement was made among the island's six towns to implement this law, one which respects local control while allowing regional leadership.

Introduction

While regional governments offer planners the prospect of coordinating their efforts across a number of communities, many citizens mistrust these organizations. They are criticized as unaccountable, too large, too expensive. The Massachusetts League of Women Voters, for example, has declined to support regional government in concept on the belief that voters cannot effectively influence these organizations.

The six towns on Martha's Vineyard Island, seven miles off the coast of Massachusetts's Cape Cod, have historically had little reason or will to coordinate their efforts. County functions were ordinarily quite limited and some residents have boasted of having let 40 years pass before needing to travel to the far end of "up-island" or over to Chappaquiddick Island. And yet by 1970 a regional perspective was needed, since overdevelopment was a common threat ... a threat which would be abetted by towns which could be played off against each other by clever developers.

Incentive for Cooperation

It took the threat of federal action to rowel the towns into any sort of coöperation. The Nantucket Islands Trust bill, drafted in 1972 and plunked down in front of townspeople, proposed to conserve generous swatches of each of the various islands in the sound: Nantucket, Tuckernuck, Muskegat, Chappaquiddick, Martha's Vineyard, Naushon, Nashawena, Pasque, Cuttyhunk, Veckatimest and smaller others. Proceeds from a special tax on off-shore fuel exploration would fund the project.

Judgment was swift. Islanders loudly rejected the plan, fearing that it portended a "Cape Cod National Seashore South" which would overpower them. They called for Congress to defeat the measure.

The Massachusetts governor, Francis Sargent, understood what was at stake and offered Vineyarders a deal: the federal legislation would die aborning if a regional planning board -- with extraordinary authority to protect Martha's Vineyard's "unique natural, historical, ecological, scientific, [and] ... cultural" resources -- were established.

The path was tortuous, but eventually the Martha's Vineyard Commission was chartered, in lieu of the trust bill. It was animal of great power and for a while islanders had reason to rest rather comfortably, since few other American citizens had such broad clout over their futures. Developments over a certain size were restricted against petitioning for town approval without first having obtained prior commission sanction, and under the charter a town's zoning code was not necessarily a guideline to the commission. Developments instead had to pass a test showing that they were "essential or especially appropriate" given other alternative locations for them. Essential or especially appropriate! More important, though, was the commission's prerogative to create "districts of critical planning concern" -- a line drawn around areas of the island which, upon designation, were subject to a year-long moratorium on building permits and a wholesale wipe-out of grandfathered rights.

Discouragingly, it still wasn't enough. The commission was able to make inviolate all beaches and farmfields and adopted "country roads" regulations which were designed to conceal new houses behind the woodland buffers along the public ways, but it hadn't any ability to reserve land for public conservation. It could prohibit or delay destruction of a particular resource until a town or the county could pony up to purchase it but taxpayers could realistically buy only a portion of what needed protection.

By the mid-1980s, interest was growing in the land bank concept. It was already working to great applause on Nantucket and, seeking to borrow from this model, Dukes County Commissioners voted in 1984 to create a Martha's Vineyard land bank study committee.

The Towns Stand Up To Be Counted

The study committee saw much in Nantucket's system, not the least of which was its nimbleness. The Nantucket land bank could eye a property, fix a price and acquire it in as few as forty-eight hours. No need to wait for the annual town meeting or organize a special town meeting; in the 1980s real estate market this strategic advantage was key. Vineyard conservation planners sought the same flexibility and proposed a single island-wide land bank commission to transact business.

Towns balked. Only a few years earlier had the towns united to form a regional trash disposal district and already there were whiffs of discontent -- some believed it to be too independent of the towns. (The trash authority, incidentally, would stay intact for only little more than a decade before it was dismantled by protesting towns .) Town leaders told the study committee that the land bank would not become law on the island unless the towns retained veto power over all land bank decisions, from acquisition to management. Furthermore, they added, land bank revenues -- to be generated by a two percent surcharge on arms-length real estate transfers -- should not be pooled but instead dedicated for spending in the town where they were spawned.

Committee members were disappointed but pragmatic. To their credit, they wasted little time in contesting this reality and redrafted the proposed legislation to include "town advisory boards." What resulted is an effective and unique way to balance local and regional goals.

Structure Of The Agency

The law, drafted with assistance from the Conservation Law Foundation, passed by a majority in each Vineyard town and the first dollar was collected on May 12, 1986. It created a Martha's Vineyard land bank commission and a town advisory board in each town.

Each town elects a single member of the land bank commission. The commonwealth's secretary of environmental affairs appoints a seventh member, but no business can be transacted unless at least four of the six town representatives are present. In addition, the commonwealth's vote can never be dispositive on matters of land acquisition; at least four of the six town representatives must agree before any land is acquired.

The commission is empowered to hold title to land and to all revenues. It negotiates to purchase properties and it drafts management plans to oversee them. It hires staff. It issues promissory notes and revenue bonds. It invests money.

But every dollar generated by the so-called "transfer fee" is split in half. Fifty cents is deposited in a central fund and can be spent anywhere on the island, subject only to a majority vote of the land bank commission. The remaining fifty cents is deposited in a "town fund" corresponding to the town in which the revenue was generated. While the land bank commission owns all of the monies in the town funds (and no town government can lay claim to these dollars), they cannot be spent without the approval of the particular town's advisory board.

A town advisory board can spend its money in its own town, or it can allow the commission to use some or all of its cash to purchase land in other towns. As a matter of practice and custom, land acquisitions are divided on a 60-40 basis; town funds will pick up 60% of any purchase price and the central fund is responsible for the remainder. This allows the central fund to pay for all administrative and land stewardship expenses, sparing the town funds from any overhead.

"Advisory" is thus either a misnomer or a euphemism. The towns thoroughly control the land bank.

Does it work?

There were not a few skeptics at the time of the land bank's creation. They saw no reason for the towns to coöperate on regional open space planning and predicted that parochial considerations and infighting would doom the land bank to fecklessness. Local observers also theorized that the land bank law's simple sunset clause -- towns can withdraw at any time with a majority vote at town meeting, effective once all of the debt which has been authorized by that town's advisory board has been amortized -- would soon be exercised, or at least liberally raised as a threat.

12 years and 1200 acres later, the partnership between the towns and the land bank commission is strong and positive. The partnership works because of insight on the part of island public officials, as well as a solid good attitude.

The first step in forging an alliance was the land bank commission's decision to take the position that its job was to implement municipal, rather than regional, open space goals. Town master plans and open space plans are cited in the land bank law as essential guidelines. In addition, the commission turned over the task of prioritizing prospective acquisitions to the towns. Commission staff assembled a list of all properties in each town which were ten acres or greater (or fewer than ten alone but greater if combined with abutting land in common ownership) or any vacant waterfront property of any size. These lists, dozens of pages long, were mapped. Each town advisory board slogged through its list, property by property, and ranked lands from four stars down to zero stars. These rankings were then mapped and each board composed a list of desired trail connections. Letters were sent, by the commission staff but on the boards' behalf, to owners of top priority properties and negotiations began.

Early on, the commission also organized a formal opportunity for the towns to meld their interests. It proposed to raise $10 million using a revenue bond, backed by the central fund and each of the six town funds. A mini-legislature was convened, as the commission and all of the boards met to compose a single island-wide list of lead priorities. For a variety of reasons, not the least of which was the current availability of certain properties, not all of the towns had a property on the island-wide list. Towns were confronted for the first time with the idea of spending their money out-of-town.

More was at stake than the mere sentimentality of joining hands together. Forty percent of all land bank revenue arises out of real estate sales in the town of Edgartown; four percent of the total comes from the town of Gay Head. When the West Tisbury town advisory board -- whose average annual town fund revenues is $175,000 -- needed two million dollars to acquire 165 acres along the Tisbury Great Pond's Tississa and Tiah's Coves, it needed Edgartown revenues. Implicit in the discussions was the property's future management plan, which the West Tisbury board and the land bank commission controlled. Before the Edgartown board was prepared to spend its monies across the border, it needed to hear that the property would enjoy adequate public access, enough to inspire an Edgartown family to visit it on a Sunday afternoon. (No concern was raised, or need have been raised, about possible legal restrictions on access to land bank properties by nonresidents, since the land bank law prohibits any such domicility requirements.)

Not only did all towns commit to the bond issue, but several properties have since been purchased on an all-island basis independent of the bond. Annual Chilmark town fund revenues average $165,000, but $3,225,000 was raised in 1997 from all of the funds in order to protect thirty acres along the Great Rock Bight on the Vineyard's north shore. Board members from all of the towns assembled to examine the property's beach, a sandy cove flanked by fifty-foot bluffs, and its rolling, grassy upland (sort of a Prospect Park-by-the-sea, situated in Chilmark rather than Brooklyn). They put their cash on the table when they read the preliminary management plan, in which the Chilmark board pledged to create up to thirty parking spaces, if needed. The combination of a handsome tract of land and reasonable management goals is enough for the six boards to blend their monies.

The Cross-Veto

Under the law, however, the commission and each of the boards enjoy the privilege of a cross-veto against each other. While rarely exercised, the prospect of finding oneself subject to it is enough to keep the commission and boards moving forward cooperatively.

There have been some losses as a result. When the heirs of Roger Baldwin, the founder of the American Civil Liberties Union, were unable in 1993 to agree on how to divide up the remaining 100 acres of his estate ("Windy Gates"), the land bank commission considered whether it could help. The property sat high atop a cliff over the Atlantic Ocean and was bisected by the divagations of a lowland stream. It fronted on a paved public road near Beetlebung Corner, which is Chilmark's center and crossroads, and abutted the town forest. It was an exquisite property.

The town advisory board wished to see the land protected but it didn't think that the land bank was the proper vehicle. Not far from Windy Gates's aerie is the town beach, whose management headaches were fresh in all board members' minds. To them it wasn't sensible to risk repeating the woes they already had at Lucy Vincent Beach, only this time even closer to busy Beetlebung Corner and twice as popular because of its dramatic cliff (which itself, posed questions of emergency access). The board vetoed the acquisition.

Commissioners asked staff to dream up solutions to this problem. Public transportation was planned, as was a relatively small reservations-only on-site trailhead (the land bank's expression for "parking lot"). A computer would be programmed, with terminals in each town hall, to take reservation requests and issue barcode passes to enter the property. Attendants would roam the beach and parking area to enforce good conduct.

It wasn't persuasive. The board voted to request that the commission cease all discussions on this matter and focus in other prospective beach acquisitions in town whose sites were "capable of supporting intense public use." That was that.

The land bank commission used its end of the cross-veto several months later in the town of Edgartown. Starbuck's Neck Park, one of the prettier spots in town, is a 12-acre conservation area along the outer harbor. Edgartown lighthouse sits in the middle of it and all of Chappaquiddick Island's western shore is visible across the water. The town advisory board became enthusiastic in 1995 about the possibility of purchasing two nearby vacant lots and a life-estate on a modest house between the lots and the park.

Total size: 1 acre. Total price: more than two million dollars. The debate at the commission level centered around whether it should stand in the way of a purchase which was advocated by an advisory board whose annual town fund revenues totaled $500,000: if the board can afford it and wants it, why should the commission intefere?. In the end, the commission vetoed the purchase in favor of a four-acre hilltop crest across the bay on Chappaquiddick for a quarter of the price; the board was satisfied.

Resolving conflicts between town advisory boards

The Edgartown cross-veto, in part, prompted the commission to consider guidelines for reviewing board recommendations. An objective standard was needed which could be enlisted during times of difficult debate. Draft goals were drafted in 1996 and send into public hearing in each of the towns.

After a bit of wrangling the goals were adopted. They constitute the general acquisition priorities of the Martha's Vineyard land bank -- i.e., essentially regional goals which have been endorsed by the towns. More than anything else they are financial guidelines, since the land bank is free to purchase lower priority properties if it wishes; the higher priority properties are those for which the land bank is willing to save up or perhaps consider paying a small premium:

Higher Priorities
(not arranged in any particular order)

It is assumed that all "higher priority" land, by virtue of its size and other characteristics, is perforce good wildlife habitat or potentially good wildlife habitat.

Lower Priorities
(not arranged in any particular order)

The Sticky Wicket

The hardest problem for the land bank has not been nimbleness or adequacy of funds or relations between the towns. The hardest problem is to convince neighborhoods that public conservation land is an asset and that the land bank should be welcomed.

Few neighbors seem to cheer when the land bank announces the signing of a contract to acquire nearby land. As a matter of custom, the land bank staff telephones or corresponds with each of the abutters, in order to introduce the land bank and solicit questions. Fear and doubt are the two most common responses, since there seems to be a sense that any public land -- even public conservation land -- will bring noise, trash, assignations and unattractive behavior. Abutters are invited to be part of the management planning process, at the very least to attend the public hearing which precedes every management plan.

Sometimes these emotions collect into a groundswell and boisterous public hearings have resulted. But the safety value is that these hearings and all of the important decisions about the plan are conducted on the town level. The management plan is the land bank commission's and it is its staff which performs the species inventories and composes the draft, but the land bank law prohibits any use of the property until the town advisory board has blessed the plan. When the boisterousness erupts, it is directed at the town, since the advisory board was a co-architect of the purchase. Insults and epithets against regional government -- the easy target -- can be lobbed, but they lack their sting because of the town's collaboration. Simply put, the boards are the land bank's political base in each community.

Conclusion

For most communities, obtaining permission from their legislatures for a conservation tax or fee is the most significant obstacle they face in performing their open space planning; administrative structure is a difficulty which perhaps pales in comparison. But on a local level, structure is important, especially when revenues vary between towns and sound principles of planning call for these revenues to be shared across town boundaries -- or at least call for an organizational model which allows for such sharing, if the constituent towns so wish.

The Martha's Vineyard land bank is such a structure. Financial and political powers are evenly distributed between region and municipality, which leads to a fortuitous conclusion: regional leaders hear and heed municipal concerns, while local leaders can be persuaded to consider and advance regional goals.

James Lengyel
Martha's Vineyard Land Bank