MASSACHUSETTS CONSERVATION COMMISSION HANDBOOK MASSACHUSETTS
CONSERVATION COMMISSION
HANDBOOK
PREPARED and PUBLISHED
by the
MASSACHUSETTS
DEPARTMENT OF NATURAL RESOURCES
and the
MASSACHUSETTS
ASSOCIATION OF CONSERVATION COMMISSIONS
PUBLICAT CATION OFPHIS DOCUMENT APPROVED BY ALFRIiD C.IIOL[.AN D,STATE PURCHASING AGENT.3300-5-6H-947429 Estimated Cost Per Copy: S.31
MASSACHUSETTS
1
CONSERVATION COMMISSION
HANDBOOK
1968 EDITION WITH ANNUAL SUPPLEMENTS
by
STUART DEBARD, ESQ.
MASS. ASSOCIATION OF CONSERVATION COMMISSIONS
84 STATE STREET
BOSTON, MASS. 02109
and by
MASS. DEPARTMENT OF NATURAL RESOURCES
100 CAMBRIDGE STREET
BOSTON, MASS. 02202
' Table of Contents
(Index at Back)
Sec. Page
Table of Contents . . . . .. .. . .. .. ... .. .. .. . .. . . . . . iii Chapter S.How to Acquire and Maintain Land
Foreword . .. . . ... .. . . . .. ... . . . . .. .. . ... . .. .. . v Introduction .. . . . . . .. . . .. . .. .. . .. . . . . . .. . 5.01 14
Control of Conservation Land .. . .. .. . . . . . . . 5.02 14
Chapter 1. Introduction Conveying Land .. .. .. . . . . . . .. . . . . . . . . . . . 5.03 14
History of the Handbook .. . .. . .... . . . . .. . . 1.01 1 Gifts of Land . . . . . . . . .. . . . .. .. . . . .. . ... . . 5.04 15
The Style of the Handbook . . ... . .. . . .. .. ... 1.02 1 Gifts of Land in Trust . . . . . . . . . . . . . .. . .. . . . 5.05 15
The Aim of the Handbook . . . . . .. .. .. .. . . . . 1.03 1 The Formalities of Purchase . .. .. . . . . . . . . . . . 5.06 15
Definitions 1.04 1 Takings by Eminent Domain . . .. . . . . . . I . .. . 5.07 16
Findin*Things in the Handbook . . . .. .. .. .. . 1.05 1 "Second Chance" Eminent Domain,
Obtaining Supplies of the Handbook Condemnation . . . . . . . . . . . .. .. . . . .. . .. . . 5.08 16
and its Supplements . . . . ... .. .. . . . .. .. .. 1.06 2 Gifts Subject to Reverter,on Condition
and Leases . .. . . . . . .. . . . .. . . . . . . .. .. . . . 5.09 17
Eminent Domain Takings for Highways . .. .. . 5.10 17
Chapter 2.What are"Conservation"and Borrowing to Buy Conservation Land . I. . .- 5.11 17
"Commissions" Should Betterments be Assessed to Abutters . . . 5.12 17
Introduction .. .. . . . . . . . . . . .. .. .. . .. .. .. . . 2.01 3 Agreements and Options . .. . . . . . . . . . . . . .. . . 5.13 18
The Association . ... .. . .. .. .. . . . .. . . . . .. . . 2.02 3 Tax Title Land=Selection . . .. .. . .. .. . .. . . 5.14 18
What is"Conservation of Natural Resources" . . 2.03 3 Tax Title Land- Strict Foreclosure . . . .. .. . . 5.15 18
The Productive or Economic Function . . . .. .. 2.04 3 Low Value Tax Title Lands . . .. .. . .. .. . . . . . 5.16 18
The Water Management Function .. .. . . . .. . . . 2.05 3 Tax Title Land-Transfer . . . . . . . . . .. . .. . . . 5.17 19
The Outdoor Recreation Function . . .. .. .. .. . 2,06 4 Tax Title Land-Purchase . . . .. .. . . . . . . .. . 5.18 19
The Preservation Function . .... . . . .. .. .. . .. 2.07 4 Tax Title Land- Registration . . .. . .. .. . . . . 5.19 l9
The Design Function . . . .. . .... . . . .. .. .. . .. 2.08 4 Tax Title-Eminent Domain . . . . . . . . . . . . . . 5.20 19
Natural Beauty .. . . . .. . . . . ... . . . . . .. . . . . . 2.09 4 Assuming Control of Other Town Land . . . . . . . 5.21 20
Coordination 2.10 4 Contracts for Maintenance . . . . . . . .. . .. I. . .. 5.22 20
Liability for Accidents on Conservation Land . . 5.23 20
Legal Assistance . . . . . . . . . . .. . .. . . . .. .. . .. 5.24 20
Chapter 3.Operating a Massachusetts
Conservation Commission
Outline of Powers . .. . . .. . . . .. .. . .. .. .. .. . 3.01 5 Chapter 6. Easements for Conservation
Why a Commission .. . .. .. . .. . . . . . . . .. .. .. 3.02 5 Introduction . . .. . . . . . .. . ... . .. .. . .. .. . . . . 6.01 21
How to Adopt the Act . . . .. . . 3.03 5 Kinds of 1-and to be Acquired in Fee . .. . .. .. . 6.02 21
How Many Should be Appointed . . .. .. .. .. . . 3.04 5 Kinds of Land for Easements . . . .. . . . . . . . . . . 6.03 21
Who Should be Appointed . . .. .. . . . . . . . .. . . 3.05 5 What Land will Earn Money . .. . . . . . .. . .. . . 6.04 21
How to Organize a Commission . . . . .. .. .. . . . 3,06 6 The Quid Pro Quo for Easements--Cash .. . . 6.05 22
Kinds of Meetings . .. .. . .. ... . .. . . . .. .. - 3.07 6 The Quid Pro Quo for Easements-Alternate
Open Meetings . ... .. .. . .. ..... . . .. .. . . . . . 3.08 6 Plans 6.06 22
What about Associate Members . . .. . . . .. .. .. 3.06 6 The Public Purpose in Easements .. . .. . . . .. . 6.07 22
Records, Plans, Subcommittees . .. . . . . . .. .. . 3.09 6 Kinds of Easements . .. .. . .. . .. .. .. . . . . . . .. 6.08 22
Relations with the Selectmen ... .. .. . .. 3.10 7 Access by Townspeople . .. .. . .. .. . . . .. . . . .. 6.09 23
Relations with the Finance Committee .. . ... . 3.12 7 Formalities .. . .. .. . . . . . . . . . . . . . . . . . . . . .. 6.10 23
The Commission Budget, Expenses . . . . . . .. . . 3.13 7 Duration 6.11 23
The Commission Budget, Land .. .. .. . .. .. .. 3.14 8 Conservation Restriction Act . . . . . . . . . .. . .. . 6.12 23
The Commission Budget,the Fund . . . . . . . . . . 3.15 8
Budget Item or Special Article .. .. .. . .. .. . .. 3.16 8
Gifts of Money to a Commission . . . . .. . .. . . . 3.17 9 Chapter 7.Taxation and Conservation
Relations with the Planning Board . . .. . . . .. . . 3.18 9 What Taxes Apply . . . . . . . .. . .. . . . .. .. . . . . . 7.01 24
The Planning Board-Subdivision Control . . . 3.19 9 Income Tax Deduction . . . . .. . . . .. . . . . .. . .. 7.02• 24
Relations with the Board of Appeals . . . . .. .. . 3.20 10 Saving the Capital Gains Tax . . . . .. .. . . . . . . . 7.03 24
Relations with the Tree and Park Commission The Bargain Sate .. . . . .. . . . .. .. . . . . . . . . . . . 7.04 24
and Public Works Department . .. . .. . . L. .. 3.21 10 Gift Tax and Estate Tax Considerations . . .. . . 7.05 24
Is Conservation Land"Park Land.. . . . . .. . . .. 3.22 10 Taxation of Reserved Life Estate . .. . .. . . . .. . 7.06 25
Relations with the Board of Health . .. . . . .. .. 3.23 10 Real Estate Taxes . . . . .. . . . . . .. . . . . . .. .. .. 7.07 25
Relations with the Water Department .. .. .I . . 3.24 11 Real Estate Taxes on Land Subject to Easements 7.08 25
Relations with Other Town Officials and Bodies 3.25 1 l Tax Deferral . . . . . . . . . . .. . .. .. . . . . . . .. . . . 7.09 25
Chapter 4.Conservation Districts and Chapter 8.State Conservation Programs
Their Federal Programs Introduction . . 8.01 26
. .. .. . .. .. . .. .. . . . . . .. . . . . .
Introduction . .. .. .. . .. .. ..... . . .. . . . . . .. . 4,01 12 The Self-Help Act-Use Requirements .. . . . . 8.02 26
Powers and Duties of Supervisors .. . .. .. .. . . 4,02 12 Self-Help Planning Requirements . . . . . . . . . . . 8.03 26
Financing a District . .. .. . . . . .. . .. .. . 4.03 12 Self-Help Program-Funding Requirements . . 8.04 27
Present Organization of Districts . .. I. . . I . I . . 4.04 12 Self-Help Program---Mechanics .. .. . . . . . .. . 8.05 27
Relationship between a District and its Self-Help Act-Legal Procedures . . .. . . . . . .. 8.06 27
Occupiers 4.05 12 State Programs . . .. . . . . . . . .. . .. .. . .. .. .. . 8.07 27
Services of a District in Soil Planning . .. . .. .. 4.06 13 The Hatch Act,Administration . . . . . . . . .. . .. 8.08 27
Role of Districts in Watershed Work . .. . .. . . . 4.07 13 The Jones Act,Coastal Wetlands . .. .. . . . . . . . 8.09 28
The Resource Team Approach .. .. . . . . . .. .. . 4.08 13 Inland Wetland Act . . . . . .. . 8.10 28
Working with a District . . . . .. ... . . .. .. . .. . 4.09 13 Coastal Wetland Act
State Association of Conservation Districts . . . . 4.10 13 The Division of Water Pollution Control . . , , . 8.12 29
The United States Soil Conservation Service . .. 4.11 13 Pollution Abatement Districts . . . . . . .. . . .. .. 8.13 29
Achievements of Districts . . 4.12 13 Public Access Board . . .. .. . .. .. .. . ... . . .. . 8.14 29
[lI
Chapter 9.Federal Grant Programs Salt Marshes, Local Action . . . . . . . . . .. ... . .. 10.15 38
Introduction . . . . . . . .. .. . . . .. .. . . .. .. . . . 9.01 30 The Hatch Act . . . .. . . . . . . .. . . .. . . . .. . . . . . 10.16 38 '
The Open Space Land Program . .. .. . .. . . . . . 9.02 30 The Shade Tree Act . . .. . .. . .. . . . . . . . . . . . . . 10.17 38
Open Space Program, Funds Available . . . . . . . 9.03 30 Defacing Natural Scenery . . . .. . .. . .. . .. . .. . 10.18 38
Open Space Land Program, Requirements . . . . 9.04 30 Junk Cars . . . . . . . .. .. . . .. . .. . .. .. . . . . . . . . 10.19 39
Open Space Program-Percent of Payment .. 9.05 30 Pollution Control Acts . . . . . . .. . .. . . . . .. . .. 10.20 39
Town Meeting Authorization&Agency Soil and Gravel By-Laws . . .. . .. . . . . .. .. . . . 10.21 39
Approval 9.06 30 Nuisance .. . . . . .. . .. 10.22 39
The Bureau of Outdoor Recreation, Addresses . 9.07 31 Mosquito Districts . . .. .. . . .. . . .. .. . .1 — — 10.23 39
Bureau of Outdoor Recreation,Projects Assisted 9.08 31 Authorities Cited in Chapter 10 . . . . . . .. . . . . . 10.24 39
Small Watersheds-F.L. 566-Addresses . . . 9.09 31
Small Watersheds- Purposes . . . .. . .. . .. . . . 9.10 31 Chapter 11. Private Conservation Corporations,
Small Watersheds-Agreements . . .. . . . . . . . 9.11 31 Trusts and Clubs
Urban Beautification, Addresses .. . .. . .. . .. . 9.12 32 Introduction . . . .. .. . . .. .. . . .. . .. . . . . . . . . . 11.01 40
Urban Beautification, Projects . . . .. .. . .. . . . . 9.13 32 What Legal Entity is Needed . . . . .. . . . . .. . .. 11.02 40
Highway Beautification . . . . .. .. . .. . .. . .. . . . 9.14 32 Creating a Corporate Land Trust .. . .. . .. ..I . 11.03 40
Federal Water Project Recreation Act . . . . . . . . 9.15 32 Functions of a Land Trust . . . . . . . . . . . . .. . . . 11.04 40
Water Resources Planning Act . . . .. . .. .. . .. . 9.16 32 Comparison of Powers-Commissions and
Water Quality Act . . .. . .. . .. . .. .. . .. . .. . .. 9.17 32 Land Trusts . . .. . .. . . . . . 11.05 41
. . .. . .. .. . . . . . .
Shore Protection Works . . .. . . . . .. . . . .. . .. . 9.18 32 Summary of Powers . . . . . . . . . . . . .. . .. . .. . . 11.06 41
Navigation Works . . . . . . . .. . .. . .. . . . . . . .. . 9.19 33 List of Private Conservation Groups . . . . . . . . . 11.07 41
Flood Control Work . ... . .. .. . .. . . . .. . . . .. 9.20 33 Four Professional Organizations . . .. . . . . .. . . 11.08 45
Small Projects and Emergency Works . .. . .. . . 9.21 33
Assistance through the Job Corps . .. . . . I . . . I . 9.22 33 Chapter 12.Statutes
Neighborhood Youth Corps . . . . . .. .. . .... . . 9.23 33 Massachusetts Conservation Act . .. .. . .. . . .. 12.01 46
Miscellaneous Federal Programs .. . . . .. . .. . . 9.24 33 Massachusetts Constitution . . . . . .. ... .. . .. . 12.02 47
Conservation Fund Act . . . . . . . .. . .. .. . ... . . 12.03 47
Massachusetts "Self-Help" Act . .. .. . .. . . .. . . 12.04 47
Chapter 10.Zoning and Other Police Powers The Hatch Act .. . .. .. . .. . .. . . . .. . .. . . . .. . 12.05 47
Introduction . .. . . . .. .. . . . .. . . . .. . .. . .. . . . 10.01 35 Coastal Wetlands Act . . . . . . . .. .. . .. . .. . .. . 12.06 48
The Zoning Power .. .. . .. . .. . . . .. . .. . .. . . . 10.02 35 The Jones Act . . .. . .. .. . .. . . . . . . . . . . . . . .. 12.07 49
Learning about Regulations . . .. . .. . . . . . .. . . 10.03 35
Large Lot Zoning . . . . . .. . . . . .. .. . .. . .. .. . 10.04 35 Chapter 13. Forms
Cluster Zoning . . .. . . . .. .. . .. . . . .. . .. .. . . . 10.05 35 Form I Purchase in Fee . . . . . .. .. . . ... . .. . 13.01 50
Flood Plain Zoning, Legal Basis . .. . .. . .. .. . 10.06 36 Form 11 Gift in Fee in Trust . . .. .. . .. . . . . .. 13.02 50
Flood Plain Zoning, Limitations . .. . .. . . . .. . 10.07 36 Form III Restriction and Easement over
Miscellaneous Zoning Matters . . .. . . . .. . .. .. 10.08 36 Whole Parcel . . . . .. .. .. . . . . .. .. .. . . .. 13.03 51
How is the Zone Bounded .. . .. . .. . .. . .. .. . . 10.09 36 Form 1V Restriction and Easement over a
"Conservancy" Zoning . . .. .. . .. . .. .. . . . . . . 10.10 37 Strip .. .. . .. .. . .. . . . . . .. .. . . . ... .. . .. 13.04 52
The S. Volpe and Co., Inc.Case . . . .. . .. . .. . . 10.11 37 Town Meeting Vote to Establish Commission . 13.05 53 '
The Inland Wetlands Act . . .. . .. .. . . . . .. .. . 10.12 37 Flood Plain District By-Law . . .. .. . . . .. . .. . 13.06 53
Salt Marshes,the Jones Act .. . .. . . . . .. . . . .. 10.13 37 Rules and Regulations .. . . . .. . .. .. . .. ... . 13.07 53
Salt Marshes,the Coastal Wetlands Act . .. ... . 10.14 37 The Conflict of Interest Law . . . . .. .. . . . .. . . 13.08 54
1
IV
Foreword
By Robert L. Yasi, Commissioner of the Department vation Commissions to make sure that they devel-
of Natural Resources. oped an active program.
The Department sponsored an all-day conference
The State of Massachusetts is fortunate that many in 1959, which sparked the formation of the Associa-
thousands of acres of land have been acquired for tion and a great increase in the number of Commis-
public use over the years. Much of the land is in state sions. Since 1963, it has been also entrusted with
forests and preserves located in the western part of responsibility for Conservation Districts.
the State. As the population concentrates near the The Department has published several pamphlets
large urban centers, the State has not been able to of assistance to Commissions and Districts, but the
properly assist in preserving significant areas of open Association has done a sufficiently comprehensive
space where the large majority of the people live. job in publishing materials and advice for Commis-
Henry David Thoreau wrote: "It would be worth- sions so that the Department is happy to cooperate in
while if in each town there were a committee ap- the publishing of a revised version of its"Handbook"
pointed to see that the beauty of the town received no written by Stuart DeBard. While matters of opinion,
detriment." The Legislature invented the Conserva- the forms and style are the sole responsibility of the
tion Commission in 1957, following Thoreau's ad- Association, matters of fact and statements as to
t vice. My predecessor, Charles H. W. Foster, was a Department policies are believed accurate. Annual
whole-h8arted supporter of the new Conservation supplements will be prepared by the Association to
Commission movement. He originated the "Self- keep the Handbook up to date. It will be republished
Help" program by which half of the cost of acquisi- by 1970 or 1971.
tion of natural land was reimbursed to municipalities. The partnership of interested, dedicated local
As his Administrative Assistant, I was privileged to Commissions and Districts with the Department of
work directly with most fledgling Commissions. Later Natural Resources has been fruitful for Massachu-
Bruce S. Gullion, Albert H. Zabriskie and Arthur W. setts and has been copied by other states in New
Brownell, successive directors of the Division of England. The participation of Federal funds and ad-
Conservation Services, have counselled, helped and vice is also insured by cooperation either directly
encouraged Conservation Commissions all over the with the towns or through the Department. The De-
State. They, their deputies or officials of the Associa- partment looks forward with pleasure to continued
tion, usually attend preliminary meetings in cities or work for preservation and proper use of open space
towns wanting to establish Commissions. Later they with the assistance of 275 Communities and 15
attend numerous night meetings of the new Conser- Districts.
' Chapter 1 Introduction
1.01 HISTORY OF THIS HANDBOOK special problems involved in the work of a Commis-
sion but the treatment of legal points is not exhaus-
The Massachusetts Association of Conservation tive. References to cases and statutes appear as foot-
Commissions is proud to collaborate with the Divi- notes: i.e. (23). Cross references to other sections
sion of Conservation Services, Arthur W. Brownell, appear thusly (Sec. 10.33).
Director, and with the Department of Natural Re-
sources, Robert L. Yasi, Commissioner in publica- 1.04 DEFINITIONS
tion of this handbook. The Association, through
Stuart DeBard, a practicing attorney and its part-time As used in this Handbook, the following words
Secretary-Treasurer, published newsletters with some will mean:
matters of permanent interest from 1960 until 1964. "Department" — The Department of Natural
In that year the Massachusetts Audubon Society Resources of the Commonwealth of Massachu-
commenced publishing The Conservation Leader, a setts.
bi-monthly newsletter primarily for Conservation "Division" — The Division of Conservation
Commissions. At the same time, the Massachusetts Services of such Department.
Forest and Park Association began intensive work on "Handbook"—This opus.
legislation with frequent printed reports. The Asso- "Commission" -- A conservation commission
ciation then assembled the basic legal advice and under G.L. Ch. 40, Sec. 8C (Many references to
forms from its "Bulletins" into a "Handbook" with a Commissions will apply to Districts whether or
supplement. It reached 95 mimeographed pages by not so stated.)
1967. Some 20,000 individual pamphlets or chapters "District" — A conservation district of the
had been sent out to members of Commissions in Commonwealth of Massachusetts.
those seven years. The Department published a guide "Statute" or "Chapter" — A section of the
1 in 1961 and other materials for Commissions and in General Laws of the Commonwealth of Massa-
1965 printed a Handbook for Conservation Districts. chusetts, as of January I, 1968.
The Division of Conservation Services and the Asso- "Supplement" — A loose leaf insert to be
ciation have collaborated to revise the Association's added annually to the Handbook.
Handbook for printing as a state document. "Association" — The Massachusetts Associa-
tion of Conservation Commissions, Room 500,
1.02 THE STYLE OF THE HANDBOOK 84 State Street, Boston, Mass. (Tel.
617-523-3060).
The writing of this guide has been kept as bright "Town" — Includes towns and cities of Massa-
and cheerful as a technical subject can stand. Bits of chusetts but city financial procedures are nol
humor are attempted from time to time. Statements included in discussion of towns,
of opinion are made on the author's responsibility
and do not reflect the opinions of the 1,300 members 1.05 FINDING THINGS IN THE HAND-
of Commissions or of the entire Board of Directors of BOOK
the Association, to say nothing of the dedicated and
able people in the Department of Natural Resources. The numbering system has a figure representing a
Statements of fact are jointly vouched for. chapter, and a point followed by figures from 00-30
representing sections. The Supplement, when
1.03 THE AIM OF THE HANDBOOK published, will have the same numbering system so
that a quick glance at the Supplement section num-
The Handbook is designed to be included in a bers will pin-point changes since the Handbook was
three-ring notebook carried by each member of a printed. A trip through the Table of Contents is
Commission and a Conservation District to be avail- worth the time it takes. A full Index is at the back.
able for ready reference when problems arise. It has The old Association mimeographed Handbook
statutes relating to conservation, (Ch. 12) suggested mixed statutes, forms and suggested by-laws in with
forms for deeds, vote and by-laws, (Ch. 13) and text. the text. Here, the text is separate with cross refer-
It will be of some use to attorneys in the rather ences. Sections are kept short and each has a title in
l
dark type. A good introduction to conservation can plied for (1) town counsel, (2) the selectmen, (3) the
be gleaned by skimming the pages and reading the town accountant and (4) the park department. A '
section titles. Serious minded Commission and Dis- supply of both will be available, at the Association's
trict members should, however, sit down in a com- office (Massachusetts Association of Conservation
fortable chair with a good light and read the text Commissions, Room 500, 84 State Street, Boston,
from beginning to end, perhaps once a year. Mass. 02109, Tel. 61,7-523-3060) and both will be
available at the Department of Natural Resources
1.06 OBTAINING SUPPLIES OF THE Division of Conservation Services, 100 Cambridge
HANDBOOK AND ITS Street, Boston, Mass. 02109.
SUPPLEMENTS They cost sufficient money so that requests should
be limited to additional copies for new members and
The names and addresses of Commission Chair- one for each other town board deemed interested.
men or Secretaries change fast. They will be Individual members of the Association will receive
published separately by the Association as a"Supple- copies.
ment". Revisions of that list and additions and cor- Stephen F. Ells, Esq. Executive Assistant to Com-
rections will be published annually as a Supplement, missioner Yasi, did a study of the law of Open Space
each Supplement superceeding prior ones. A copy of in Massachusetts which will soon be published by the
the Handbook and its Supplement,will be mailed free Metropolitan Area Planning Council, 44 School
without request to each member of a Commission or Street, Boston. Write it for a copy. He has assisted in
Supervisor of a District and extra copies will be sup- the editing of this Handbook.
1
2
1
Chapter 2 What are "Conservation" and "Commissions"
2.01 INTRODUCTION speeches, even poems. As used here it includes at
least these five:
In 1957, Massachusetts invented the municipal 1. The productive or econotnic function as
conservation commission. The need for public action represented by agriculture, forestry, fisheries and
for conservation on the local level had been felt for mines.
many years and had given rise to town forest commit- 2. The water management function including
tees, park commissions, playground commissions and flood prevention, water supply and water purity.
recreation commissions. Yeoman work had been 3. The outdoor recreation function covering
done by charitable foundations, by garden clubs, by low density use of open space for exercise and
nature associations and by sportsman's clubs. Massa- fun.
chusetts people believe in their native towns. Rep. 4. The preservation function under which the
John Dolan of Ipswich combined local loyalty with landscape as made by nature is maintained for
the new awareness of the need for governmental scenic, historic, educational and scientific pur-
money and muscle in the Conservation Commission poses.
Act. It was accepted by 12 towns in 1958 and up to 5. The desigrr function by which open space
150 by 1960. In 1968, 275 of the 351 cities and serves as a key element in separating areas of
towns can proudly boast of Commissions under the intensive development by channeling growth in
Act. Not all Commissions have developed viable pro- desired directions.
grams, although perhaps 80% are effective. While "Conservation of natural resources" in the West
the pressures and accomplishments are greatest in the includes mining, grazing, oil and gas rights. Such
suburbs, both cities and small towns have demon- matters have little relevance in Massachusetts and are
strated imagination and results. excluded from this discussion.
The Conservation Commission statute refers to:
' 2.02 THE ASSOCIATION ". . .open areas. . .all open marsh lands,
swamps and all other wet lands. . .
The Massachusetts Association of Conservation . . .Said commission (may acquire rights in
Commissions (Sec. 1.06) is a non-profit, volunteer land to) maintain, improve, protect, limit the
group of Commissions dedicated to spreading the future use of or otherwise conserve and properly
gospel of conservation action by municipalities. It utilize open spaces and other land and water
was founded in 1960 and automatically admits as areas within their city or town and manage and
members all towns which adopt Ch. 40, Sec. 8C. The control the same."
Association is supported by annual dues from Com-
missions which are $15 for towns under 5,000 popu- 2.04 THE PRODUCTIVE OR
lation, $25 per year for towns up to 10,000 popula- ECONONOMIC FUNCTION
tion, $35 for towns up to 15,000 population and $45
for towns over 20,000, These are billed on January When salt marshes arc saved from filling, dredging
1st of each year. The Association renders some serv- or pollution or fish ladders are built, the base of the
ices to private conservation groups, trusts and corpo- food chain which supports half our fisheries is ae-
rations, but they have no voting rights. They become cured. Conservation on a town level is not geared to
Associated Members by purchasing memberships for keeping farm land in operation. Forestry may be im-
their officers at $5 per year each. A number of portant but mining is a minor consideration.
Individual Members are welcomed at the same $5
rate. A copy of the By-Laws of the Association will 2.05 THE WATER MANAGEMENT
be furnished on request. FUNCTION
2.03 WHAT IS "CONSERVATION Water supply ranks high on the agenda for most
OF NATURAL RESOURCES'" towns although those which use water from the
Quabbin Reservoir may not be much concerned with
The values of open space embraced within the it. 1-and for water wells or pumping stations is not
term "Conservation" are the subjects of many books, conservation land; wetlands which help recharge the
3
water table are so considered. The water manage- 2.08 THE DESIGN FUNCTION
ment function and the recreation function blend into '
each other since much recreation land borders Design should be a major purpose of Commissions
streams, ponds or the seashore. Most flood prevention in suburbs. While it is not permissible for a Commis-
plans depend on preserving flood plains and sponge sion to acquire land merely to slow down develop-
areas. Combining flood prevention, water supply and ment, it is fine to use town money for land or obtain
recreation in "multiple use" of land is a fine achieve- gifts of land which shape the residential design of a
ment for any Commission. towns. Strips of woods, ravines or marsh separating
various zoning uses or separate groups of suburban
2.06 THE OUTDOOR RECREATION residences will be more useful than extra large lot
FUNCTION zones. If the strips are on river banks or ridge tops,
several functions will be served.
Recreation may be a goal or only a by-product of a
town's conservation program. Ponds and streams t 2,09 NATURAL BEAUTY
yield fish and woods and fields permit hunting, walk-
ing, picnicing. If, however, some Commission land is
to be intensively developed, such as a beach with While conservation has at least the above five
lifeguards and bathhouses, ball fields, tennis courts or justifications, each is reinforced if nature is retained
ski slopes, the headaches should be dropped into the in an interesting and variegated fashion. For example
lap of a recreation commission. Ch. 91, Sec. 62, in deathless prose, tells the Division
of Public Beaches that all beaches shall be preser-
2.07 THE PRESERVATION FUNCTION ved"in their natural,simple,scenic beauty."
"Conservation" is a dynamic concept. A Commis- 2.10 COORDINATION
sion rarely preserves land just to avoid change.
Where nature arranged things better than man could The Conservation Act includes specifically "pro-
do, preservation is justified. This includes the acqui- motion and development of the natural resources" '
sition of land for view, such as ledge, hill tops, water and "the protection of watershed resources" of the
front or even a view of the town itself. If this purpose town. In addition to conservation as a goal, knowl-
is paramount, there need be no right of access. The edge of town open spaces, maps, indexes and coordi-
Massachusetts Supreme Court has held that aesthet- nation of unofficial bodies is part of"conservation."
ics is not, of itself, a sufficient ground for zoning but This work amounts to conserving the energies of
that is a sound basis for the expenditure of public townspeople, perhaps the most valuable natural re-
funds. source of them all!
1
4
' Chapter 3 Operating a Massachusetts Conservation Commission
3.01 OUTLINE OF POWERS Commission. Many of the powers of a Commission
could be exercised under other statutes such as ac-
The Massachusetts Conservation Commission, quiring land for park purposes, for a public domain,
copied in four New England states, is an official town for recreational or for school use.
committee (called a "Commission"), created by the If the town relies on private organizations to ac-
acceptance of the enabling act at a town meeting. It is quire land, no town funds can be used for the pur-
the focus of most town action relating to the protec- chase or for maintenance nor will any state funds be
tion of natural resources. It has 3-7 members who are available. (See Ch. 1 1)
appointed by the selectmen or the mayor for stag- No town with an open space problem should fail to
gered three year terms and is unpaid. It should re- adopt the Act. Either a town has a Commission or it
ceive an appropriation and can spend it without fur- doesn't. The whole act has to be adopted, not part of
ther town meeting action if matching funds from the it or with reservations.
State or the Federal Governments are not needed. It
may accept gifts of money and land for its purposes 3.03 HOW TO ADOPT THE ACT
for the town which require only the approval of the
board of selectmen, not town meeting action. Some It is better to wait a year until a town is sold on the
or all of its appropriation can be voted to a "Conser- idea of a Commission rather than ramming one down
vation Fund" which can be invested until expended the throats of a large minority and starting it off
by the Commission,without further town vote. It may under a cloud. The Division and the Association will
recommend eminent domain on town vote. There is provide speakers for public meetings, and will fur-
no limit on its annual appropriation. It may acquire nish copies of this Handbook and reports of success-
for the town restrictions or easements in land. It may ful Commissions so that a steady, hot heat can be
assist other departments of the town in administering built under the town by those interested. At town
' wild land or may have the town transfer control of meeting there should be good speakers armed with
such land to it. slides or enlarged photos showing "horrible exam-
ples", which can be found all too easily. The first
3.02 WHY A COMMISSION? year it may be wise not to ask for an appropriation,
except $100 or so for expenses, until the new Com-
In order to have a lawful Commission a town must mission has studied the needs of the town. A sample
accept the act. One or two towns thought that by town meeting vote appears at Sec. 13.05.
adopting Ch. 40, Sec. 8-C to establish a Commission
they might come under State power and so es- 3.04 HOW MANY SHOULD BE
tablished informal committees. Nothing in the Act APPOINTED?
could, however, give the State domination. Until the
Act is adopted, gifts of land cannot be accepted The Act (Sec. 12.02) provides that a Commission
except by town meeting action. Statutes authorizing consists of not less than three nor more than seven
towns to buy land for park, town forest, water supply members. Most Commissions have seven which is
etc. do not easily embrace swamps or ledgeXhich the strongly recommended. Much leg work is used in
townspeople cannot use except for view, wildlife or meeting with potential donors, clubs and town offi-
flood protection. Adopting the Conservation Act cials. Among the skills needed by a Commission are
gives a town these extra powers. A town's normal those of a businessman, a politician, a lawyer, a na-
power is to buy land only for a"public purpose" (Ch. turalist, a teacher, an engineer, a writer and an artist.
40,Sec. 3). It is easy to obtain a quorum with a seven person
An informal town committee cannot obtain funds board. Each year one or two new faces should appear
from the State under the Self-Help program. There is on the Commission. It should have assorted sexes.
no objection to such informality under Federal pro-
grams since grants are given directly to a town. Some 3.05 WHO SHOULD BE APPOINTED?
of the functions of the Commission, such as advocat-
ing conservation education in the schools, could be The members of a Commission should be chosen
' carried on by an unofficial committee as well as by a by the selectmen for a diversity of skills, backgrounds
5
and interests. If all seven belong to the Podunk Na- Commissions meet weekly, others semi-monthly, the
ture Club or the Podunk Sportsman's Club, the town majority monthly. In addition to business meetings,
will not see the Commission as town officials. A some members of the Commission will sit in with the
lawyer and a civil engineer who understands things selectmen, the planning board, the park department
like stream flow, percolation tests, soil quality and or other boards on matters of mutual concern, others
maps is useful. A person good at public relations will will attend hearings relating to the Hatch Act or
be treasured. A businessman used to hard trading board of appeal hearing, others will negotiate with
will probably be elected chairman and be worthy of prospective sellers or donors of land. The Commis-
the responsibility. Someone connected with education sion will hike on Saturday mornings to view choice
or recreation is needed. Real estate dealers and de- parcels which may be within its budget.
velopers, however, should rarely be members; the Several times a year it may present or cooperate
Conflict of Interest Law might even forbid it. (See with others in presenting programs for the general
discussion and form at Sec. 13.10). public. Special interest programs will be arranged for
Commissions flounder which consist only of town schools, for scout troops or for assemblies preceeding
officials,who have other fish to fry. Finance commit- town meeting to whip up interest in its articles.
tee members and selectmen have other duties and
should not serve on the Commission. Possible excep- 3.08 OPEN MEETINGS
tions are a member of the planning board and a
member of the park department, since both have a Commission meetings are under the "Open Meet-
direct relationship with the Commission. The tree ing Law, (Ch. 39, Secs. 23 A-C) which requires a
warden can be an ex-0fficio, non-voting member. Commission, along with other boards and commit-
tees, to hold open meetings and announce the dates at
3.06 HOW TO ORGANIZE A least 24 hours in advance.The Commission may vote
COMMISSION to go into executive session fordiscussing and voting
on matters which ". . .if made public might adversely
After accepting the Act, when a:! the members affect the financial interest, . .of the town. . .or
have been appointed and have been sworn by the the reputation of any person. . ." Voice or open ,
town clerk, either the selectmen, the first person ballots are required. No visitor may speak without
named in a list of appointees or any member should Permission. Actions taken in violation of the Open
call a meeting. If all the appointees are present, the Meeting Law are lawful although a court might order
Commission should organize on a permanent basis. If the Commission to comply in the future.
less than all are present, a temporary chairman and a
temporary secretary should be elected. Notice of a 3.09 WHAT ABOUT ASSOCIATE
second meeting should be given by the temporary MEMBERS?
secretary. Then a chairman and a secretary should be
chosen for a year until the anniversary of the organi- The number of man hours of work required has
zational meeting. A vice-chairman might also be prompted some Commissions to appoint "associate
elected. members", seven or more in number although the
Each year on the anniversary of the appointment Act does not mention such officials. "Associate
of the first Commission, after any new appointees members" attend meetings and participate in the dis-
have been sworn in, the officers for the ensuing year cussion but do not vote. In a few towns, "associate
should be elected. The names of the officers should members" have forgotten their status and have tried
be given to the town clerk, to the Association and to to give orders to town officials. (In February, 1968 a
the Division. Vacancies are filled by ballot of the bill is pending to permit unlimited numbers to be
remaining members and the selectmen for the unex- appointed"with all non-voting powers"). A Commis-
pired term. (Ch. 41, Sec. I ]) sion is fortunate which has the assistance of a mem-
bership organization in its town devoted to conserva-
tion (Sec. 11.01). In one town the conservation club
3.07 KINDS OF MEETINGS has seven committees, each chaired by one of the
seven members of the Commission. In addition, the
The best Commissions hold the most meetings. The whole club meets with the Commission two or three
poorest Commissions hold the fewest meetings. Some times a winter. '
6
3.10 RECORDS, PLANS, Commissions rarely urge "promotion, development
SUBCOMMITTEES or utilization" of wet lands, preferring to allow them
to hold water until it soaks into the water table or
Keeping records is a"thankless task but clear, con- runs off in streams.
cise records can save time and mistakes. The secre-
tary should record each vote and at least sketch other 3.12 RELATIONS WITH THE
discussions. The minutes of the previous meetings FINANCE COMMITTEE
should be read and approved. This leads into the
topic of "old business", tying up the loose ends left A most important object For the affections of a
from the preceeding meeting. The chairman or Commission is the finance committee in a town or the
a"financial secretary"keeps a record of the appropri- appropriation sub-committee of a city council. Much
anon for the current year, the status of the conserva- can be done without spending money but land worth
lion fund, outstanding bills and prepares vouchers for preserving usually has a price tag. The smart Com-
the town accountant. Since all money is kept by the mission contacts its finance committee when things
town treasurer and is expended on the approval of are going well and big plans are only in the formative
the town accountant, the Commission has no need for stage. Gratitude is becoming to a Commission as well
as to people. A letter to the chairman of the finance
a"treasurer".
com
A member should be named "cartographer" to Dea might read:
make or keep plans of lands in which a Commission "Dear John,
is interested or which it has acquired. A newsy, live Through the forehandedness of the Finance
Committee in recommending$5,000 for the Con-
summary of the year with a picture or two should be
prepared for the annual town report. Better yet is a nervation Fund last March, we were able to pick
picture of the latest land purchase on its cover! up the pond on Jones' farm when old Mrs. Jones
died rather than wait until town meeting.
Sub-committees should be formed to deal with
schools, to touch base with planning board and to We thank you for trusting us to spend the
money wisely which I'm sure you'll agree we
accomplish specific jobs. The group chosen to tackle
the finance committee just has to be the entire Com- have done. We are talking with Henry Smith
' concerning his brook which runs out of the Jones
mission!
pond.
3.11 RELATIONS WITH THE Sincerely,
SELECTMEN , Bill"
Finance committees respect exact plans. If a com-
mission needs $20,000 for the following year, it
The selectmen, the principle elected officials, pos- should describe its projects in detail with pictures,
sess the important powers (a) to appoint the members plans and appraisals. Finance committeemen should
of the Commission, (b) to approve gifts received by be invited to Commission public meetings where pop-
ular support for conservation is easily demonstrated.
town bills. Wise Commissions keep the selectmen A really eager Commission might learn what both-
advised as to major projects. The Commission has ern finance committees by reading its Handbook,bor-
more fun than selectmen, being engaged in a new rowed from one of the committee members, or avail-
and exciting program to preserve the beauties of the able at the Association of Town Finance Committees,
town, and selectmen like to be consulted. The Con- 84 State Street, Boston for $2. per copy.
servation Act (Sec. 12.01) tells Commissions to keep
an index of open areas and to consider the proper 3.13 THE.COMMISSION BUDGET,
utilization of them including lands owned by the EXPENSES
Commonwealth or by the town. It then requires a
Commission to keep an index of all open marsh Money appropriated for "the Conservation Com-
lands, swamps and all other wet lands and to mission" will be interpreted as under the first sen-
"recommend to the city council or selectmen, and tence of the Conservation Fund Act (Sec. '13.05).
subject to the approval of the city council or select- This implies routine expenses, not capital items.
men, to the Department of Natural Resources and to Money so appropriated may not be used to buy land.
the State Reclamation Board, a program for the bet- If not spent or encumbered, it will revert on Dccem-
ter promotion, development or utilization of all such ber 31 st of the year appropriated to the "excess and
' areas". This language has not been used much since deficiency account".
7
It will be used for expenses such as maintenance of Sec. 5.07) (Disregard a contrary statement in the
land owned by the town for conservation purposes, Conservation Fund Act. Sec. 12.03). I
pamphlets, Association dues and meetings, pictures, Once there was an annual limitation on money for 1
plans,surveys,typing and other recurring charges. conservation so that a town had to save up in order to
It can appear in the budget as"Conservation Com- buy a large tract. Once Self-Help was given only
mission", with a figure or in a separate article, or if when a purchase was made from a conservation fund.
appropriations like Sees. 3.14 or 3.15 are included, it By statutory amendment neither limitation is now in
might be distinguished by "Conservation Commis- force but there are still good reasons for building a
sion, Expenses" with a figure. conservation fund.
Unless blessed with a working crystal ball, a com-
3.14 THE COMMISSION BUDGET, mission can't forted its needs even a year hence, for
LAND example:
(a) How can it tell that Mrs. Landed Gentry
will die this year and her children will offer thirty
In addition to the expense appropriation and, per- acres of streams and ponds for a paltry few thou-
haps, an appropriation to the Fund for future un- sand, spot cash, without publicity?
known purchases and expenses, a town can vote for (b) How can it know that a 100 year-old dam
(a)"Conservation Commission, on one of its properties will need $2,000 of re-
purchase of land $6,000" pairs or go out with the ice?
or{b}"Conservation Commission (c) How can it negotiate an option (See. 5.13)
Jones Farm $4,00 with Bull Dozer & Co., Inc. to buy sixty acres of
Smith Hill 2,000" swamp at $200 an acre after its thousand houses
b. is required for Self-Help matching. b. can be used are built if all the Commission's money disap-
only for the items shown. Both a. and b. will stay pears each New Year's Eve?The developer won't
available to the Commission without further action take the Commission seriously unless it has some
on its part until spent. money in the stock to put on the line now.
Any specific project other than the purchase of Money has to be appropriated by the town meeting '
land in general or specific land will likewise stay for the "Conservation Fund" in order to go into the
available such as"Rebuilding Foundry Pond Dam — fund except for the private gifts mentioned in Sec.
$3,000." 3.17.
When a specific project is completed, any balance To recapitulate this and the two prior sections, a
remaining in that account may be released to the Commission budget might be as elaborate as this:
Excess and Deficiency Account by a letter from the Conservation Commission
chairman to the town accountant saying that the ob- Expenses $ 500.
ject of the appropriation has been completed and Purchase of Jones Farm 6,000.
there is no need for the balance on hand. Conservation Fund 2,500.
3.15 THE COMMISSION BUDGET. - 3.16 BUDGET ITEM OR
THE FUND SPECIAL ARTICLE?
A town may appropriate money to a conservation "Town meetings generally pass routine maintenance
fund held by the town treasurer which may be invest- items in the budget without much question but debate
ed and the income added to the fund. It stays avail- new or extraordinary expenditures. While a Commis-
able year after year until spent. "Moneys in the fund sion is a novelty in town, the annual meeting should
may be expended by said Commission for any pur- consider its budget as a special article. When it has
pose. . ." (Sec. 13.05) "Any purpose" is broad become accepted, its operating budget can be an item
enough to include the purchase of land, operating in the budget article. The Conservation fund budget
expenses, plans and anything else which could be can be a second item in that article when it, too, has
spent under an expense appropriation, become routine. (Sec. 3.15) Each purchase of land
The Conservation Fund may be used for eminent for which reimbursement is hoped, each eminent do-
domain awards if approved by z/s vote of town meet- main taking and each request for bonding authority
ing or city council, according to a 1967 amendment should each be in a special article, described so as to
to the Conservation Act. (Sec. 12.01, last sentence, identify the land. '
S
3.17 GIFTS OF MONEY TO A tion 701 of the Housing Act of 1954, towns may em-
' COMMISSION ploy city planners on a program cost shared by the
Federal Government. A Commission should see to it
A gift of money from an individual or group to that a fair portion of the planner's time is spent
"the Conservation Commission of Town X" may be working with it.
without strings, with a special purpose or on a trust, The Commission should review planning board
with income only to be used. If without strings, it will rules and regulations and unostentatiously suggest
be held by the town treasurer and may be expended such modifications as requiring developers to show
by the Commission without appropriation that year. on their plans the existing contours, streams, swamps
(See also Ch. 44, Sec. 53A). By Commission vote the and large trees, and what would be altered. The ad-
treasurer will put it into the Conservation Fund vantages of the cluster zoning option and flood plain
where it will stay until spent. If it has a special pur- zoning should be discussed with the planning board,
Pose attached, the treasurer will keep it until spent. It should be alerted that developers must comply with
The above can be received under the Conservation the two dredge and fill laws, the Hatch and Jones
Act with the selectmen's approval. A trust fund given Acts. (Ch. 131, Sec. 40 and Ch. 131, Sec. 27A).
for conservation should be accepted by town meeting
(Ch. 40, Sec. 3) which should provide that the Com- 3.19 THE PLANNING BOARD -
mission may expend the income without appropria- SUBDIVISION CONTROL
tion.
Money "earned" by conservation land such as a The Sub-division Control Law is also administered
hay or a timber crop is incidental to a Commission's by the planning board. Ch. 41, Sec. 81-Q states in
work and should go into general funds. part:
"No rule or regulation shall require, and no
planning board shall impose, as a condition for
3.18 RELATIONS WITH THE the approval of a plan of a subdivision, that any
PLANNING BOARD — of the land within said subdivision be dedicated
' THE MASTER PLAN to the public use, or conveyed or released to the
Commonwealth or to the county, city or town in
A planning board is required (Ch. 14, Sec. 81-C) which the subdivision is located, for use as it
to make "careful studies and when necessary prepare public way, public park or playground,or for any
plans of the resources, possibilities and needs of the other public purpose, without just compensation
city or town and. . .shall submit to the city council or to the owner thereof."
selectmen a report thereon with its recommenda- Cluster zoning(Sec. 10.05)does not violate this sec-
tions". Under See. 81-D the planning board is told to tion since it is voluntary; compulsory cluster zoning
make a master or study plan of one or more parts of would not be possible.
the town. The planning board "shall designate in The planning board has the right under Ch. 40A,
such plan conservation, rehabilitation and develop- Sec. 81-L, as a condition for the approval of a subdi-
ment areas for the purpose of guarding residential vision,.to
protection, neighborhood improvement, and urban ". . .require the plan to show a park or parks
renewal programs. Such plans shall be made, and suitably located for playground or recreation pur-
may be added to or changed from time to time, by a poses or for providing light and air, and not
majority vote of such planning board and shall be a unreasonable in area in relation to the land being
public record". subdivided and the prospective uses of such land,
Section 81-C provides that the planning law does and may be appropriate endorsements on the
not abridge the power of any municipal officer in re- plan require that no building be erected upon
gard to parks nor shall it "authorize the taking of such park or parks for a period of not more than
land or construction of any way or park shown on a three years without its approval."
map or plan. . ." A Commission should request the planning board
The planning board should consult frequently with to advise it if proposed subdivisions have land suit-
the Commission when its master plan is being pre- able for conservation acquisition. The lots or area
pared or amended. The Commission should make labeled "Park"on an approved subdivision plan must
sure that the areas it wants to preserve are shown on be acquired by gift, purchase or eminent domain
' the plan, usually in bright green coloring. Under Sec- within three years or else the building inspector, if
9
asked, must give building permits for the lots cov- works department as compensation for their labor. A
ered. if he is not asked, even for 15 years, the town better plan is for the Commission to make a joint
may still acquire the land at subdivision lot prices. A pitch to the finance committee for funds for those
Commission should not wait until land is subdivided departments so that one of them can hire enough
to put under town control what it needs. This statute additional employees to do conservation work.
provides only a last-ditch chance to save land which Usually money paid by one department for services
would otherwise be built on. Of course the play- rendered by another goes in to the "excess and defi-
ground or park commissions may have clever ideas ciency" account and can not be spent by the other
for the land for their purposes. department.
The Subdivision Control Law tells a planning
board to secure"adequate provision for water, sewer- 3.22 IS CONSERVATION LAND
age, drainage and other requirements. . ." Unless "PARK LAND"?
there is a member in common between that Board
and a Commission, the two chairmen should confer Perhaps in ten or twenty years the concept of
often and the two boards should meet annually. "parks", will encompass all conservation land. (See
Where a proposed subivision abuts upon land con- Lowell v. Boston, 322 Mass. 709) Town commons
trolled by a Commission or will affect drainage or are now defined as parks (Ch. 45, Sec. I a) The
pollution, a delegate from the Commission should Home-rule Amendment to the State Constitution for-
attend the hearing and should speak up. bids a town to alienate park land or use it for another
purpose unless the Legislature expressly so authoriz-
3.20 RELATIONS WITH THE es. Conservation land might be considered "park"
BOARD OF APPEALS land by a court if used for outdoor recreation. Land
acquired for the conservation purposes of design,
The board of appeals acts more like a court than flood prevention, sponge action, wildlife propagation
an administrative body. It guards the zoning and or anti-pollution probably is not park land. Land will
building ordinance or by-law by hearing appeals be considered "park" land if so labeled in the town
from orders of the building inspector and gives flexi- vote authorizing the purchase or if it is called "park" '
bility by granting permits where a by-law authorizes in a deed of gift. A Commission should support the
one and by granting variances in hardship cases. A park department in adding to its land from time to
Commission member should attend hearings by the time but a Commission can acquire land in the name
board relating to variances and special permits and of the town only for conservation purposes.There are
state whether the Commission is pleased with or plenty of controls against diversion of conservation
objects to the proposed action. land (Secs. 5.21, 5.02) so the "park" protection is
rarely needed.
3.21 RELATIONS WITH THE TREE
AND PARK COMMISSION AND 3.23 RELATIONS WITH THE
PUBLIC WORKS DEPARTMENT BOARD OF HEALTH
The author knows of only one town whose Com- A vigorous board of health can do more for con-
mission has a paid employee although the statute servation than a weak Commission. Each board of
authorizes a Commission to-appoint such clerks and health must promulgate rules and regulations which
other employees as it may from time to time require." may be either the sanitary code established by the
The time may come when towns will have thriving State Department of Public Health or more strict
"Conservation Departments" with trucks, climbers, regulations. The Commission should obtain and
sprayers and collective bargaining for its employees. study its local rules. No building permit may be
Until then, most of the necessary maintenance can be obtained where no common sewer is available unless
accomplished either by private contract or by ar- adequate sewerage disposal is provided. Once a house
rangement with the park department or public works could be built before a leaching bed was designed.
department. Since conservation work is largely trim- Now the sanitary system must pass muster to obtain a
ming of branches and thinning of brush, it can be building permit. The Sanitary Code contains a blan-
done in the winter which is an off-season for both of ket prohibition against pollution as follows:
them, between snowstorms. The Commission may "2.8. Discharge to water courses— Sanitary
pay some of its appropriation to the park or public sewage, industrial wastes, sink wastes or waste '
10
water that has been used for washing or cooking spacing which may incidentally help recharge the
' or the effluent from any sewage or waste treat- water table. The water department should then lean
ment plant, or other polluting water shall not be over backwards to allow the public to promenade on
discharged into or allowed to flow into or be put its lands!
into any lake, pond, stream, tidal water, water
course, or open or covered drain tributary, unless 3.25 RELATIONS WITH OTHER
approved by the Massachusetts Department of TOWN OFFICIALS AND BODIES
Public Health."
A few of its other provisions are: (Act XI) Any Since the town treasurer invests and holds the
sewage facility may not be less than 25 feet from conservation fund, it is nice to keep on his good side.
open water and 100 feet from surface water supplies The school department may have surplus land which
(3.2). Minimum leaching areas are required and dou- can be used for nature study. The tax collector should
bled that amount of land must be reserved for expan- be advised to inform the Commission in writing as to
sion (7.1). Disposal fields must have four feet eleva- each sale for taxes.
tion over "maximum ground water elevation" unless If the street department is blasting for a new road,
an exceptional percolation rate is found (7.2). Con- it may jump at the chance to dump rock on a dam
nections to common sewers may be manditory(2.9). under the control of the Commission. Such mutual
In a few cases concerned with the zoning power as backscratching eases the tasks of other departments.
relating to wet lands, health factors predominate. A Commission should contact the fire chief on
Plans for subdivisions have to be submitted to the streams, ponds and forest fires.
board of health. Each Commission should confer One hundred thirty towns own forests supervised
regularly with its board and fight the good fight, by town forest committees. The three members of
shoulder to shoulder with it. each such committee should be appointed from the
Commission to avoid duplication of effort. The use
3.24 RELATIONS WITH THE of a town forest for recreation, nature study and flood
WATER DEPARTMENT prevention is a natural and should not prevent the
' forest committee from raising merchantable lumber.
If a town uses water from Quabbin Reservoir, it A Commission in a small town should consider
may maintain existing sources as stand-by but should acquiring the powers of the playground commission
not add to its water lands. If water is obtained local- (Ch. 45, Sec 21) or run for election as park commis-
ly, the well fields and reservoirs should be bought by sioners (Ch. 45, Sec. 2). All Commissions should
the town water department which runs as a business. work with those groups, if already established, in
Self-Help funds will be withheld from such pur- acquiring land since the chances of a town acquiring
chases. The Commission may acquire abutting land too much open land at Massachusetts prices is a
which it wants for flood protection, natural beauty or chance well worth taking.!
1
11
Chapter 4 Conservation Districts and Their Federal Programs
4.01 INTRODUCTION 4.03 FINANCING A DISTRICT
During the dust bowl era in 1936 and 1937, a In 1966 and 1967 about $37,000 per year was
valiant effort was made to teach farmers how to keep appropriated by Massachusetts and disbursed by it to
their soil from drying up and blowing away. The the 15 Districts on the basis of a budget and special
Federal Soil Conservation Act, (16 U.S.C.A. projects submitted by each. Some Districts earn mon-
590a-590q) put the Federal Government in the busi- ey by selling trees which they purchase wholesale, the
ness of assisting in preventive measures and with the supervisors and their friends donating their time.
help of other agencies. Under enabling legislation, Monies earned may be paid for dinners of the Dis-
Massachusetts soon had Districts (then called "Soil trict Association or for other projects not directly
Conservation Districts") in all counties except Suf- within the statute.
folk and three districts in Worcester County.
In 1963 the Districts were transferred to the new 4.04 PRESENT ORGANIZATION
Division of Conservation Services in the Department OF DISTRICTS
of Natural Resources. The statute (Ch. 21, Secs.
18-25,) states in considerable detail how Districts are Until 1967 the Districts usually shared offices with
formed and operated. This is easy reading and should the county office of the Soil Conservation Service. A
be consulted by every supervisor. The following is retrenchment and consolidation program was initiat-
only a summary. ed by that service so that there are now the following
An unpaid State committee supervises the Districts S.C.S. offices: Dukes, Nantucket, Bristol and Plym-
(Ch. 21, Sec. 19.20) and assists with educational outh - all at Middleborough. The three Worcester
work, the prevention of soil erosion, prevention of districts are combined in the town of Holden. The
flooding and the conservation and disposal of water Middlesex, Essex and Norfolk Districts have a com-
through cooperation with other agencies. It establish- mon office at Acton. Barnstable County is at Barnsta- '
es boundaries of Districts after public hearing on ble, Berkshire County is at Pittsfield and Franklin,
petition of a majority of the landowners or at least Hampden and Hampshire at this time have separate
100. offices. Except where the county happens to be the
Five "supervisors" are originally appointed by that site of a combined S.C.S. office, Districts have kept a
committee but are later elected by landowners on part-time office in their own counties and request that
staggered five year terms. They elect their officers. letters in regard to projects be sent to them there
They may invite other political subdivisions of' the rather than at the combined S.C.S. office.
Commonwealth or Commissions to designate it repre-
sentative to advise them. 4.05 RELATIONSHIP BETWEEN A
4.02 POWERS AND UUTIES OF DISTRICT AND ITS OCCUPIERS
SUPERVISORS At the annual meeting in each District all owners
of land or occupiers may vote for candidates for
The statute requires supervisors to conduct sur- supervisor. When watershed projects or other large
veys, control erosion, conserve and develop water plans are afoot, there may be as many as ten special
resources but only in cooperation with either the meetings per year in addition to twelve regular mcet-
State or United States agencies. They may enter into ings of the supervisors. Commission members or
agreement with any agency, governmental or other- delegates are cordially invited to attend. Once Dis-
wise, or any occupier of land. They may make avail- tricts dealt almost exclusively with farmers. The
able machinery, equipment and materials to assist number of farms is declining and few now have
land occupiers, may construct structures, may devel- severe soil problems. The District supervisors have
op lands and may accept contributions of money or time and interest in town land problems and have,
services from any government or person. They may among themselves, a variety of skills not common on
sue and be sued in the name of the District. They Commissions plus a grasp of State and Federal mach-
have no power of eminent domain nor power to inery on a technical level which Commissions find
acquire land nor to levy taxes. most useful.
1
12
4.06 SERVICES OF A DISTRICT IN landowners on which to make requests for assistance.
' SOIL PLANNING If a request is approved at a monthly meeting of the
The United States Soil Conservation Service has supervisors, the District will request the Soil Conser-
been engaged for 20 years in making a soil analysis vation Service to allocate sufficient man hours of
of the whole United States. Two Massachusetts coun- technical personnel to do the work. Districts provide
ties, Plymouth and Franklin, are completed. A num- technical services to towns or other landowners: the
ber of farms in other counties have had this service. only funds it may disburse go under a program for
Towns are now required to pay about 50% of the cost farmers to upgrade agricultural land. Districts assist
to the Service or approximately $2,000 per town for towns or other owners with advice on forests, selec-
a preliminary and a final soil survey which make a tive cutting or on fish and wildlife problems through
firm basis for all kinds of town planning. The Service state agencies. Cooperation with adjoining counties is
cannot keep up with the demand so towns should urged.
plan well ahead. The request should be made through
the Districts. 4.10 STATE ASSOCIATION OF
4.07 ROLE OF DISTRICTS IN CONSERVATION DISTRICTS
WATERSHED WORK Each of the 15 Districts is a member of a state
The Soil Conservation Service spends almost association which has three officers and a 15 man
$1,000,000 per year under Public Law 566 on small board of directors. Dues are$150 a year. The current
watershed projects. These are coordinated through the officers are Horace Clark, President, Howard Hay-
Districts, not by local watershed associations which, ward, Vice-President, Raymond Lego, 285 Peters-
however, have a real role on the political side of such ham Road, Athol, Mass. Treasurer, and Thomas
a program. Districts likewise coordinate some Darcy, Beechnut Street, Westwood, Secretary.
$50,000. worth of water impoundment studies done The Massachusetts Association of Conservation
by the S.C.S., using funds supplied by the State Commissions and the Massachusetts Association of
Water Resources Commission. Conservation Districts invite each other's officers to
' 4.08 THE RESOURCES TEAM annual meetings and, in other ways, attempt to coor-
APPROACH dinate the two groups.
A natural resources inventory for a town is best
made by concentrating the skills of several agencies 4.11 THE UNITED STATES SOIL
simultaneously. Some lucky towns have obtained a CONSERVATION SERVICE
study through their District which brings in a"natural
resource technical team." A request originates with a A number of trained men under Dr. Benjamin
Commission, possibly along with its planning board. lsgur work at 29 Cottage Street, Amherst, in the Unit-
The team is composed of employees of the U.S. Soil ed States Department of Agriculture, Soil Conserva-
Conservation Service, the State Division of Fisheries tion Service, Telephone 413-253-3474. The usual
and Game,the Department and the County Extention contact is the "work unit conservationist" who coor-
Service. The inventory maps produced will suggest dinates projects or, for simple projects, does the work
sites for recreation development such as dug-out himself. Also on the payroll are soil scientists, soil
ponds for swimming, skating and wildlife, sites for conservationists, soil conservation technicians, con-
impoundments for multiple use, town forests for tim- servation engineering technicians, agricultural engi-
ber or recreation, nature study areas, historic sites, neers, engineering specialists and construction engi-
trails and subsurface water supply. The plans will neers.
show which areas are not suited for building by
reasons of high water table, steepness of slope or 412 ACHIEVEMENTS OF DISTRICTS
stream protection. A detailed interpretive soils report
will pin-point problem areas and provide ammuni- A typical District, in a 15 year retrospective pam-
tion for a Commission on town meeting floor and for phlet,justifiably bragged about the development of a
a planning board on zoning. conservation farm plan, education in farm planning,
pond construction for fish and livestock, Christmas
4.09 WORKING WITH A DISTRICT tree and other tree planting, woodland thinning, con-
The District office will supply simple mimeo- tour strip cropping, diversion terraces, drainage
' graphed forms to towns, farmers and other private ditches, piping, farm clearing and repair after floods.
13
Chapter 5 How to Acquire and Maintain Land
I
5.01 INTRODUCTION Federal Government may take town land by eminent
domain. Insofar as conservation land may be "park"
This Handbook so far has shown how to set up land (Sec. 3.20) a special act of the Legislature would
and operate a Commission, how it gets money and be needed to authorize its taking by eminent domain
what land it ought to acquire. This chapter shows by such other government or its transfer to another
how a Commission gets title. Easements are covered town use.
later and zoning later still. The three possibilities are
a gift, a purchase or a taking by eminent domain. In 5.03 CONVEYING LAND
all three, success is a deed or order filed in the
Registry of Deeds (or the Registered section of the A Commission is not as interested in obtaining a
Land Court for registered land). Tax title lands are perfectly clear title as most individuals are since it
covered at Secs. 5.14 -5.20. Forms of deeds are will not build on the land it owns in the name of the
shown at Sec. 13.01 and 13.02. Although a lawyer town. Land given to the town which is marsh or
should draw up and attend to the execution of deeds, stream land may not warrant a Commission in paying
a Commission should know something about land for a title examination or a plan. If, however, a
since it will negotiate the general agreement and Commission spends a bundle of the town's money on
make some policy decisions for its town. a purchase, it should have a title examination at least
to the extent that the right people will sign the deed
5.02 CONTROL OF CONSERVATION and the right bank will give a discharge of its mort-
LAND gage. The deed should be drawn by the town counsel
and executed by the owner. The husband or wife of
A Commission is not a legal entity; it is only a the owner need not sign since dower and courtesy
branch of town government. The town alone is able have been substantially eliminated. If, however, title
to own land. The Commission should see to it that is in a husband and wife as tenants by the entirety or
the deed of the fee or an easement runs to the town in two or more persons as tenants in common or as '
for conservation purposes as set forth in G.L. Ch. 40, joint tenants, all must sign the deed.
Sec. 8C so that the land will be under the control of If the owner will convey his whole parcel or the
the Commission. (See form, Sec. 13.01), A town may portion to be conveyed appears or a recorded plan,
hold real estate "for the public use of the inhabit- no new plan is needed. If only a portion of a parcel is
ants" (Ch. 40, Sec. 3), or buy for "any municipal to be conveyed to the town, the Commission should
purpose"_(Ch. 40, Sec. 14). Land acquired under pay for a plan so that the owner can sell or mortgage
those sections may be transferred to Commission his remaining land. If the town has adopted Subdivi-
control by a two-thirds vote of the town meeting. sion Control, plans must be approved by the planning
Once land is under the control of a Commission board in order to be recorded in the Registry of
under either method, it may not be taken from such Deeds. If all lots on such a plan have enough frontage
control except by (a) a majority vote of the Commis- on a public way or a subdivision street in order to be
sion determining that such land "is no longer needed building lots, the plan will be approved on the infor-
for such purpose" and (b) by a two-thirds vote of mal proceedure as "subdivision approval not re-
town meeting transferring control to another board quired." If a plan shows that not all lots front on such
for "specific municipal purpose" unless it would vio- a way to such extent, there are two alternatives: (1)
late any "terms or conditions of the title of the city or . the planning board may write on the plan that lots X
towns of such land." (Ch. 40, Sec. 15-A). It can be and Y are to be conveyed to the town for conserva-
sold only upon two similar votes (Ch. 40, Sec. 15). A tion purposes and are not buildable lots and then
town cannot take land owned by itself by eminent approve the plan under the informal procedure, or
domain. Thus, if four people out of seven on a (2) a road and turnaround may be shown on the plan,
Commission believe that a tract under its control a full hearing is advertised and the planning board
should not be used for a,schooi, the vote of the other approves the plan as a subdivision plan, waiving
three members and every other voter in town cannot construction of the street and turnaround until and
take the land from conservation use and put it to unless a building permit is requested for any of the
school use. However, the county, the State or the nonconforming lots. '
14
If a Commission intends to acquire an entire 13.02) Ch. 40, Sees. 15 and 15-A prohibit transfer of
' marsh from several owners, survey lines can be run land between the departments or a sale if it would
and bounds set in the upland and the other bounda- violate "a term or condition in the title." An express
rics can be shown by dotted lines. When all of the trust is such a term or condition. Since there is no
marsh surrounded by the upland lines has been ac- statute prohibiting transfer of conservation land as
quircd, the title will be complete in the town. See there is for "park" lands, sonic donors will prefer to
Sees. 5.17 - 5.20 as to clearing inadequate titles and label gifts as for park purposes but they would then
descriptions, be administered by the park department.
The town will be trustee of such a trust and each
5.04 GIFTS OF LAND parcel of land will be a separate trust. (Ch. 40, Sec.
3, Ch. 45, Sec. 3, Ch. 214, Sec. 3 (Clause 11). A
When it donor is found, when his title has been charitable trust can normally be enforced by the
examined, (if necessary), it plan made (if necessary), Attorney General or, by leave, by ten taxable inhab-
and the selectmen have approved informally, then a itants. (Ch. 214, Sec. 3 (Clause 11). The instrument
Commission may vote to accept the land for the town of gift may create a board or committee to have this
for conservation purposes. It may be advisable also responsibility. (Trustees of Andover Seminary vs.
to touch base with the abutters and with the planning Visitors, 253 Mass. 256, 270, 148 N.E. 900, Adams
board. After the vote, a deed is executed, is acknowl- vs. Phinkett, 274 Mass. 453, 175 N.E. 60. See Briggs
edged by at least one on the owners before a notary vs. Merchants National Bunk, 323 Mass. 261, 278,
public and is presented to the selectmen by the Com- 81 N.E. 2d 827). In Sec. 13.02, the Commission has
mission for their signed approval. Then it is sent by been named a visiting committee to enforce the trust.
the Commission or the town counsel to the Registry For the reason for the word "dedicate" see Sec. 6.11.
of Deeds. After recording, it goes to the town clerk,
although a copy should be kept by the Commission. 5.06 THE FORMALITIES OF
PURCHASE
5.05 GIFTS OF LAND IN TRUST
If it does not plan to apply for state Self-Help
' Should the donor of the land wish most especially funds or Federal funds a Commission which has
that it always remain in natural uses and the Commis- enough cash in an appropriation for the purchase of
Sion is positive it should be preserved, he can use a land or-for the purchase of specific land or in the
device which is well recognized in Massachusetts and conservation fund (not in its expense money) may
other states, —a charitable gift in trust. A trust will make a purchase without town meeting approval and
prevent diversion for other town purposes (a) even without selectmen approval. To buy a parcel of land,
with the vote of the whole Commission, (b) even with a Commission adopts a vote authorizing the pur- '
the vote of 100% of the town and (c) even after a chase, a deed is prepared (Sec. 13.01) is executed, is
special act of the Legislature, provided always (d) acknowledged by the seller and State documentary
that a probate court does not rule that the public stamps are affixed to it. The seller submits a bill to the
charitable trust is no longer enforceable in its original town, care of the Commission, for the purchase price
terms in light of changed circumstances or(e) there is which is approved by writing the signatures of a
no taking by eminent domain by it different govern- majority of the whole Commission on it. A purchase
ment,with express legislative approval. Seldom could order is prepared by the chairman and is submitted
a court rule that the purpose of the trust could no with the approved bill to the town accountant who
longer be served. A donor should feel as secure in will issue a check. When the check is mailed to the
such it gift to the town as it gift to any private land seller, the deed is recorded by the Commission or its
trust. counsel.
In addition, the town will be able to maintain the If, however, the purchase is to be partially reim-
land and will always exist while the private land trust burled by a State or Federal grant, there must be
might go broke or disband. A town cannot purchase explicit approval by town meeting prior to the gift.
in trust; there would be no donor whose charitable (Once purchases had to be made from the conserva-
act had to be respected. If a trust is intended, it tion fund but this is no longer necessary). Here the
should be explicitly set forth, rather than relying on Commission votes to insert an article in the warrant
general language such as a "wish" that the land be for town meeting requesting approval to purchase a
' maintained in a particular fashion. (See form at Sec. parcel of land, which may be described in general
15
terms, not by metes and bounds, so long as no confu- the agenda of a city council. A two-thirds vote of
sion could result. The vote which the town meeting either body is required to authorize the taking. The
adopts, majority vote if eminent domain and bor- selectmen or the mayor will execute and record the
rowing not included, should be complete, giving proper documents. Upon the taking "the land and
metes and bounds and the source of the funds. They water shall thereupon be under the jurisdiction and
may be "raised and appropriated" or borrowed (Sec. control of the Commission." Excepted from this pow-
5.1 1) or transferred from the conservation fund or er are state reclamation board projects, mosquito
otherwise. After the vote a deed is prepared, the bill control projects and lands used for farming as de-
is presented to the Commission and so on, as in the scribed in Ch. 128, Sec. 1-A. There must be a rea-
prior paragraph. Then the fact of the purchase is cer- sonable appropriation to accompany the taking. Cit-
tified to the State and the Federal people and the ies may not make takings for more than 125% of the
Commission waits for a check. The reimbursement assessed value of the parcel.
goes to the excess and deficiency account of the town, Counsel should examine Ch. 40, Sec. 40 entitled
not to the conservation fund. "Emergency Water Supply, Conditions" and Sec. 41
At the same or at a prior town meeting, by a entitled "Protection of Water Supply, Conditions"
separate vote, the town should authorize the select- before taking land near watersheds. Open land may
men or Conservation Commission to enter into a con- be acquired by eminent domain under the park stat-
tract with the Housing and Urban Development De- ute, Ch. 45, Sec. 3, the playground statute, Ch. 45,
partment of the United States Government or the Sec. 14, or the public domain statute, Ch. 45, Sec.
Bureau of Outdoor Recreation or some other Federal 19. Ch. 79, Sec. 3, relating to water flowage rights
Bureau. (Sec. 9.06). No contract may be made and no and Ch. 79, Sec. 13, providing that trees and build-
taking of land may be filed before the receipt by the ings may be removed unless they are included in the
town of written approval from the proper depart- taking, should be checked.
ment. If a town fails on either count, no grant will be After the taking is made and the price estimated in
forthcoming from the Federal government. While the the vote is tendered, the owner has two years in
State government has no such rigid rule, Sec. 8.04 which to claim damages in court. If the award is
shows that the purchase by the town should be cleared higher than the offer, the entire balance and costs
with the Division prior to any final action. A person, becomes a debt of the town payable whether or not '
corporation or trust selling or leasing land to a town appropriated. By an amendment to the Conservation
may not be paid nor is an agreement to sell or lease Act (sponsored by the author), some or all of that
valid until the seller or lessor files a statement with fund may be used for an award if so voted by the
the Commissioner of Administration, State House, town. Since there remains a prohibition of such use
Boston, giving "the true names and addresses of all in the Conservation Fund Act (Sec. 12.03), the Com-
persons who have a direct or indirect beneficial in- mission by its own vote cannot authorize its use for
terest in said property. (Ch. 7, Sec. 36). eminent domain award. (It is hoped that this confus-
5.07 TAKINGS BY EMINENT DOMAIN ing situation can be cured by amendment).
A Commission may recommend a taking by emi- 5.08 "SECOND CHANCE" EMINENT
nest domain (Sec. 12.01) but it must be (a) voted by DOMAIN, "CONDEMNATION"
the town meeting and (b) executed by the selectmen.
If the conservation fund is to be used, that must be Ch. 79, the normal method of eminent domain,
voted. (Sec. 3.14) In addition to takings of the fee, a gives the town complete title upon the recording of a
town may take "any lesser interest in any land or notice of taking in the Registry of Deeds while dam-
water located in such city or town.- (Towns can take age is litigated later. A different method, established
land in other towns for water supply purposes, not in 1929 by Ch. 80A,has recently been held constitu-
for conservation purposes). tional (Swanwou v. Reinis, 350 Mass. 523.) and
A Commission should ask the town to make a deserves to be frequently used in conservation acqui-
taking to confirm any shaky title it may have ac- sition. It authorizes the selectmen to proceed by
quired. (Sec. 5.20) The Commission adopts a vote adopting, not an order of taking, but an order of
requesting action by the town meeting on a taking by intention to take. The order contains an estimate of
eminent domain of land for conservation purposes. damages. After recording the order, a plan and the
This is submitted to the selectmen for insertion of an estimate, the selectmen file a petition in court to
article in the warrant of the next town meeting or on determine the damages to be paid. After the court '
16
has determined the damages as in a normal eminent way departments took park or recreation land. Acts
1 domain matter, the town has the option either to 1955, Ch. 693, as amended by Acts 1957, Ch. 657,
make a final taking or to abandon the matter. Where changed the law to provide that the Real Estate
easements or marginal land are to be taken, damages Review Board, established by the D.P.W. shall deter-
are hard to predict and a Commission may well wish mine the amount to be paid and such determination
to look at the damages as awarded by a court before is final. Funds so obtained by the M.D.C. must be
recommending a final taking. If the town backs out, placed into its trust fund "for the purchase of other
the landowner is entitled to indemnity for any dam- land to replace the area so taken, transferred or
age suffered and the expense of the proceedings. used". In like manner, money received by a town
5.09 GIFTS SUBJECT from this source should be appropriated by town
TO REVERTER, meeting vote to the conservation fund if not needed
ON CONDITION AND LEASES to pay off bonds sold to buy the land.
A Commission may be offered a gift of land with 5.11 BORROWING TO BUY
either a "possibility of reverter", "subject to a condi- CONSERVATION LAND
tion"or a lease of land. The first is a deed which says
that the land shall be owned by the town "so long as" The phrasing of articles and votes to borrow mon-
it is used for conservation purposes. ("During" or- ey is an esoteric art, not to be engaged in by neo-
"until" are alternates). Thereafter the land reverts phytes. The following may help a Commission com-
automatically to the donor or his heirs. If he attempts municate with town counsel.
to convey his"possibility of reverter"to a stranger, it A town may borrow under Ch. 44, Sec. 7 (3) for
is forfeited. The second is a deed expressed as on twenty years for conservation purposes. Some bond
"the condition that" the town never permits hunting counsel reject borrowing for purchases of easements
or uses it only for conservation. If at any time because of the possibility that changed conditions
hunting is allowed or if the land is no longer used for will terminate the easement. (Pending legislation may
conservation, the owner or his heirs may elect to cure this.) Sorrowing is complicated by possible
' enter and reclaim the land as his property. Neither reimbursements by State and Federal grants. The
the reverter nor the condition would be tolerated in a vote must authorize borrowing the entire amount
deed for which cash is paid. Such deeds are rare, are needed over the necessary 3% appropriation and the
construed harshly by courts because they give a wind- amount to be taken from the conservation fund, if
fall to the donor or his heirs and are not recommend- any. The vote should state that monies received from
ed. However, both contingencies would lapse unless the State or Federal government will be used to repay
• exercised within 30 -years or a notice was re- the loan. In most cases the treasurer will borrow on
recorded. (Ch. 184, Sec. 23, 26-30; Ch. 184, Sec. a temporary loan for one year and the funds will
3) Form III (Sec. 13.03), for a gift to the town of an come in during that period so that permanent loan
easement, uses a condition that if the land is ever will be made payable in such a fashion that the reim-
taken by eminent domain, the award shall be paid bursements are all paid within the first year and only
to the donor. the town's share is repayable during the 19 follow-
The most simple, trouble-free method of control- ing years.
ling land is, according to Russell L. Brenneman,
Private Approaches to the Preservation of Open 5.12 SHOULD BETTERMENTS BE
Land, (Cons. and Research Foundation, 13 Wood- ASSESSED TO ABUTTERS'
sea PI. Waterford, Conn. $10.), Page 33, a lease to a
town or charity for one dollar a year for 99 years Regular eminent domain provides that betterments
with a covenant that the lease shall terminate if (for may be assessed: ". . .whenever a limited and deter-
example) the trees are ever cut. The donor could minable area receives benefit or advantage, other
assign his reversion to a land trust. A trust is also than a general advantage to the community, from a
highly recommended. (Ibid p. 83) public improvement made by or in accordancc with
5.10 EMINENT DOMAIN TAKINGS the formal vote or order of the board. . ." Ch. 45,
FOR HIGHWAYS Sec. 6 says: "All amounts received for betterments
which accrue by the laying out of parks under this
The Highway Act said that there would be no chapter shall be applied to the payment of park
' payment of damages when the state or county high- loans". Probably betterments may be assessed firr
17
takings of purchases for conservation uses if the 5.15 TAX TITLE LAND -
land is valuable for scenic beauty or public enjoy- STRICT FORECLOSURE
ment. If it is taken as a sponge to soak up flood
waters or the like, there would be no special advan- Taxes are assessed as of January 1 of the calendar
year and draw interest from October 1. Within two
tage to the abutters. The town often pays one-third to
two-thirds of the cost of improvements and assesses Years of October 1,the collector of taxes should make
the balance on the locals who benefit directly. a "taking" for unpaid taxes and any additional
assessments, water charges, etc. The "tax title" ac-
count and collection problem then is passed to the
5.13 AGREEMENTS AND OPTIONS town treasurer and unless it is paid off each subse-
quent year's taxes are added to this account. Two
Since a Commission may purchase land with mon- years after the "taking" the treasurer may, particu-
ies subject to its control, it may execute an agreement larly if requested, begin foreclosure proceedings by
to buy land within a reasonable time. It notifies the a Land Court petition (Ch. 60, Sec. 65) or by the
town accountant who "encumbers" the conservation optional low value procedure for parcels assessed
fund or land purchase appropriation. If an appropri- under $1000 only (Sec. 5.16),
ation will be needed, a Commission cannot sign an The Land Court appoints an examiner who reports
agreement to buy land. If State or Federal funds are the flames of all persons appearing to have title or
desired in reimbursement, no binding agreement can interests in the real estate and notifies them by regis-
be executed before Federal written approval is re- tered mail; if they are unknown or cannot be found
ceived. To be on the safe side, the selectmen should notice is given by publication. Unless the interested
countersign an agreement. The Conservation Com- parties appear, they are defaulted, and if they appear
mission Act(Sec. 12.01) says in part: "Said Commis- and do not either redeem by paying off the amount
sion-may acquire. . .any. . .other contractual right as due and costs, or are unable to sucessfully challenge
may be necessary to acquire. . open spaces. . ." the validity of the "tax title", the Court decree bars
While it was once believed that options were not right of redemption and the town takes over the title
valid, inasmuch as the town did not receive any of the taxpayer. At this stage, the town can transfer
interest in land for the expenditure of its money, the control to the Commission under Ch. 40, Sec. 15A '
above change in the statute permits options until final (Sec. 5.17)
approval of the funds needed. If an option is execut- Costs of foreclosure are approximately $60 plus
ed,only the landowner is bound. If he will not accept the cost of publication, if required, or another $50,
one dollar and demands something substantial for plus an attorney's fee of$75 or more, but many par-
tying up his land subject to favorable town meeting eels and tax titles may be included in one Land Court
vote, anything over 5 to 10% of the purchase price, petition and one publication, if required, greatly re-
to be applied to the sale if approved by town meet- ducing the average expense.
ing, would seem excessive.
5.16 LOW VALUE TAX TITLE LANDS
5.14 TAX TITLE LAND - SELECTION Two years after a tax taking, the treasurer may,
instead of going through strict foreclosure, ask the
A Commission should work on a master plan for Commissioner of Corporations to determine that the
conservation land and acquire or control land in a land is (a) of.insufficient value to pay the total tax
meaningful pattern. If marsh or stream lands are tax bill plus the cost of strict foreclosure (Sec. 5.15), (b)
delinquent, the Commission should acquire them. is worth less than $1,000 and (c) the collector's tax
Bits and pieces of tax title land not within the plan taking was regular. His affidavit as to those three
should be left on the tax rolls, within the free enter- facts is recorded and the treasurer sells parcels at
prise system, rather than being picked up, magpie public auction. He notifies known owners by regis-
fashion, because they are free or cheap. tered mail and owners unkown by publication. He
Towns vary widely in the attention paid to tax may reject inadequate bids, adjourn the sale once and
titles. If important pieces can be obtained best if there is still no adequate bid he gives a deed to the
through the tax title route, the next few sections will town which could thereafter transfer control to the
show a Commission what action to request from Commission. The costs of low value sales to the
whom; otherwise the reader should skip them and treasurer might run only $25 per parcel, but the risk
pass on to easier subjects. of others bidding and buying at auction results. '
i$
5.17 TAX TITLE LAND -TRANSFER 5.19 TAX TITLE LAND,
REGISTRATION
After the town acquires title it could be assigned
to a "custodian" but usually it is managed by the Assume that a Commission has (1) a vote transfer-
selectmen. There is often a town by-law or standing ring tax title land to it or (2) a deed from the
vote authorizing one or more town officials to set a treasurer as in Sec. 5.18, how good is it? Few persons
price and to sell. Such land is "held and disposed of would build a house on a parcel bought through tax
like any land belonging to it and held for municipal title proceedings without -registration in the Land
purposes" (Ch. 60, Sec. 77). Sec. 77B provides for Court.
sale by a custodian of foreclosed property or a town A Commission should consider its title: (a)was the
may "dispose of such property under Sec. 3 of Ch. land assessed to"owners unknown-or (b) to a person
40, or in any other manner authorized by law". Land who moved from these parts 50 years ago? If(b), the
held "for the public use of the inhabitants" (Ch. 40, Commission might run for luck; if(a) it should regis-
Sec. 3) and "any municipal purpose" (Ch. 40, Sec. ter.
14) is controlled by the selectmen. A town may A Commission should consider the description of
transfer land (except park land) to another board the land acquired, whether tax title or not; (a) is it
"for another specific municipal purpose" (i.e. for bounded by streets, by rivers, walls, town lines or
conservation,) upon (a) a determination by the board stone bounds? Or (b) is it bounded on four sides by
having charge of it (i.e. the selectmen) that it is "no "land now or formerly of McGillicudy" and land of
longer needed for that purpose" (i.e. tax title land) three others or by trees and fences long gone? If(a) it
and (b) a town two-thirds vote to "transfer the care, might run for luck; if (b) it should register if it is
custody, managementand control" to such other potential building sites or else it may find that the
board. heirs or assigns of McGillicudy or the others start
To sum up, once the town has foreclosed a tax title building on what the Commission thought was its
or owns land by lack of bids at low value sale, the land. If the title has been acquired through low value
selectmen (or custodian) should recommend transfer sale and the description is O.K. a Commission will
to the control of the Commission and the town should save a few scheckels by going to the Land Court un-
' adopt a vote like this: der the title clearing procedure by Ch. 60, Sec. 80-B,
"VOTED: That a parcel of land bounded (give since no plan is needed. The costs might be $75. for
description and area if available) is hereby trans- the examiner, $50. for publication and the like $100.
ferred to the custody and control of the Conser- to $150. for attorney's fee, or much less on a quantity
vation Commission for all purposes included in discount if several parcels can be placed in one Land
Ch. 40, Sec. 8-C, as it now reads or may hereaf- Court petition.
ter be amended." If the description is poor, the Commission should
No deed is given and nothing is recorded in the have a full registration in the Land Court. A more
Registry of Deeds. Until its transfer, money may be thorough title examination is made and the "owners
appropriated for maintenance of such land (Ch. 40, unknown" might now be found and might contest. If
Sec. 5 (38)and for Land Court proceedings (Ch. 60, not, their rights are gone, and the town's title is
Sec. 50-13). perfect forever. The surveyor's plan will cost $150 to
$500 plus $30 per bound in addition to the $300 odd
5.18 TAX TITLE LAND - PURCHASE listed above.
Although the transfer method is free to the Com- 5.20 TAX TITLE -
mission, it can save time and trouble by: (1) purchas- EMINENT DOMAIN
ing tax title land after strict foreclosure from the
treasurer out of its funds by paying the accrued taxes If a number of tax titles are acquired in the same
and costs,obtaining a deed to the town for conservation marsh or river valley, the Commission can clear the
purposes, or (2) attending an auction sale of law title beautifully by having the whole area shown on a
value parcels, stating that it is bidding for the Com- plan, perhaps not up to Land Court standards, and
mission (since the town is potentially both the seller taking the marsh or valley by eminent domain. (Sec.
and the buyer) and, if it is the high bidder, also 5.07) If there is land which is shown as "owners
obtaining a treasurer's deed to the town for conserva- unknown", an award of some damages (not too
' tion purposes. much!) is made; the money is deposited in the Supe-
19
rior Court and by it in a savings bank. (Ch. 79, Sec. 5.23 LIABILITY FOR ACCIDENTS
713). If not claimed, it escheats to the state. ON CONSERVATION LAND
Eminent domain works well to clear titles even
though land has been given or purchased. The award With well over 5,000 acres controlled by Com-
is only $1.00 and the former owner (who is treated as missions, it is proper to summarize Massachusetts
still the owner for the purpose of eminent domain) law as to tort liability on open land. The municipality
cannot claim more since he already gave a deed to will not charge admission or conduct a money mak-
the town. ing operation so it will not be liable for injuries
caused by its negligence (Bolster v. Lawrence, 225
5.21 ASSUMING CONTROL OF Mass. 387, Kerr v. Brookline, 208 Mass. 190) If
OTHER TOWN LAND town land, water, or soil is changed from its original
state so that it damages adjacent land, the town could
Other departments in town may own wild land be liable in damages or enjoined. (Towner v. Mel-
available for conservation or recreation use. Unless rose, 305 Mass. 165.)
such a department will permit formal transfer of this A municipal officer may be personally liable for his
land at town meeting(Sec. 5.17) an informal working active, personal negligence causing injury even
arrangement should be negotiated. The Commission though the municipality is excused because it is acting
cannot bind its members years hence to return the only in its governmental rather than its proprietary
land to the other department if it wants it back. capacity. (Moynihan v. Todd, 188 Mass. 301 (1905),
"Control" is not a very active matter as to woodlands Trum v. Paxton, 329 Mass. 434 (1952). Commission
or wetlands. Commissions are authorized to establish members can not be liable for "nonfeasance," that is,
rules and regulations for the use of open spaces (Sec. for failing to fill up a natural hole or for failing to
13.07) and are interested in it. The Commission and remove a dead tree which later fell on a bird watcher.
the other department should arrange, by an exchange They also can not be liable for negligent action of oth-
of letters, that the Commission shall have control of er town employees working on conservation land.
such other wild land, terminable at the will of the Only if they do or order some affirmative act in
other department. Then uniform rules for camping, person in a negligent manner causing injury, is there
fires and hunting will apply [o all town owned open any possible liability. Very few cases have imposed '
space. Perhaps control of a parcel should be divided this kind of liability on town officials and the town
between the Commission and the park department or Would almost certainly reimburse them.
some other appropriate department. 5.24 LEGAL ASSISTANCE
5.22 CONTRACTS FOR Town counsel should be willing to assist Commis-
MAINTENANCE sions in the foregoing. No other attorney can be paid
unless the selectmen authorize his employment in
Subject to available funds, a Commission may exe- advance. The Conservation Subcommittee of the
cute contracts with tree surgeons, contractors and Boston Bar Association solicited volunteer lawyers
others to do necessary maintenance work on land it from its commuting range and will furnish their
controls and may hire "clerics and other employees". names to Commissions who ask for such help. The
Many Commissions find it preferable to work with Conservation Law Foundation, I Court Street, Bos-
the park department or the public works department ton, Mass. may be of assistance. A Commission
and have conservation lands maintained during the should do most of the negotiating with the landowner
winter, which is generally a slack season for them. before bothering town counsel, but should not sign
(Sec. 3.23) anything before he has a look at it.
20 1
Chapter 6 Easements for Conservation
I
6.01 INTRODUCTION Bills have been introduced in the 1967 and 1968
In addition to acquiring natural areas in "fee," the Legislature which, if enacted, would cure most of
Conservation Act (Sec. 12.01) authorizes Commis- these problems. Look in the current Supplement
sions to acquire "any lesser interest, development (when there is one)for the latest on this.
right, easement, covenant, or other contractual right
including conveyances on conditions or with limita- 6.02 KINDS OF LAND TO BE
tions or reversions, as may be necessary... . ."This is ACQUIRED IN FEE
sanctioned by an amendment to the Massachussets
Constitution (Sec. 12.02). Just as an engagement can ripen into marriage, an
Several books have been written on the subject of easement to a town over open spaces could ripen into
easements, negative easements or restrictions (all a gift of ownership of the "fee" when both owner
called "easements" here for sweet simplicity's sake). and town see that they are happy with the deal. An
There was a conference on conservation easements in easement is the wrong device if the land will be
Wisconsin in 1966 at which the author was a panelist intensively developed by the Commission for recrea-
and there are a number of other indications of inter- tion. If the town needs to insist on a natural use of
est in the device. Such "lesser interest" should have dry land which is otherwise buildable, the cost of an
the following advantages to a commission: easement may equal the cost of the fee.
a. An easement should cost less money than
the fee; ("fee" means the maximum interest in 6.03 KINDS OF LAND FOR
real property which can be owned by an individu- EASEMENTS
al)
b. The owner of the land will still pay some A. A good way to obtain a green strip in a town
real estate taxes; is to obtain easements preventing building, filling,
' e. The land will be available for recreation, dredging or fences within a certain number of feet
farming or some other use besides the conserva- from the center line of a stream or a town boundary.
tion use; The land still qualifies for the area part of the zoning
d. The owner will maintain the land without requirement if there is other land for a house. This
cost to the community;and type of easement, called herein a "strip easement,"
e. The use may be so minor (such as a view) amounts to an agreed set back line and is also useful
that it will be freely given and not require pur- for flood plain work. It reduces the value of the lot
chase. very little if at all and should be freely given or
A list of the disadvantages are as follows: cheaply purchased.
a. The device is not well-known; B. ,If a view over a marsh or ledge next to the
b. In order to obtain an easement or restric- land of an owner is of real value to him even though
tion, a deed must be carefully drawn by compe- no building is possible, he may be interested in pay-
tent counsel, be acknowledged and recorded,just ing the taxes on the land in its wild state and selling
like a deed of the fee; or giving the development right to the town.
c. Unless a recording system adequately cov- C. Other easements should be obtained from
ers the land subject to the easement, it may be a owners who will continue to earn money from the
secret blot on the title of the land; land in its open condition and are willing to guaran-
d. Under current statutes (Ch. 184, Sec. 27) tee its continuance in natural use in return for tax
the municipality has to record an extension of the benefits, possibly cash, and assistance in mainte-
easement in thirty years from its inception and nance. See Sec. 7.08 for tax treatment.
every twenty years thereafter;
e. If the easement is poorly drawn, it might 6.04 WHAT LAND WILL EARN
expire in thirty years(Ch. 184, Sec. 23); and MONEY
f. If the land situation changes radically, for
example, a five acre marsh becomes surrounded Persons owing farms, orchards, golf courses, pri-
by factories, a court can declare an easement vate hunting preserves, private camp grounds, private
1 abandoned (Ch. 184, Sec. 30). fishing ponds, ski slopes and the like should be the
21
prime prospects for easements over buildable land. any, between the appraisal before the easement and
Their self-interest coincides with that of the Commis- the sale price, corrected for inflation. (it is hoped
sion to preserve land in its natural state or nearly so. that, for example, flood control and pollution restric-
If the owner of a private hunting preserve, for exam- tions on a whole stream valley will prove not to have
ple, is sufficiently confident of the future of his opera- diminished the value of the land.) (3) Acquisition in
tion he may wish to surrender his right to develop it fee and resale to other persons subject to the ease-
into house lots to the town either free or for a small ment. (4) The town gets a contract to buy land over
portion of its value. An easement will keep his real an agreed number of years during which the owner
estate taxes at the level of undeveloped land. With remains on it. The final payments are due, in any
low taxes he may be able to run his business profita- event,on the death of the owner and his wife. The fee
bly. The town may help with fire trails or tree work. could be resold as in#3. (5) A landowner's coopera-
Different considerations are present when more in- tive is set up through which owners of land in the
tensive use of the land is to be made by the owner. A valley and lands in development areas could share
private golf course is an ornament to a town although equitably in the gains in land value from future
it is private property. In some seasons the public will development. Not all of these are currently lawful for
be welcome to walk on the land. While assessors Commissions but suggest that there may be an excit-
often lean over backwards to assess such acreage at ing future for easements.
prices below platted development land, many golf
courses have succumbed to the tax pressure. In West- 6.07 THE PUBLIC PURPOSE IN
ern states easements of development rights over golf EASEMENTS
courses have been sustained by the courts.
The land associated with the clubhouse and other Since the town will probably get less real estate
major improvements should be excluded. taxes from the land and the donor may get an income
tax advantage, the Commission and the selectmen,
6.05 THE QUID PRO QUO FOR before accepting an easement, should be sure that the
EASEMENTS - CASH land given fits into the town master plan, if it has
one, and that it clearly benefits the public for recrea- '
A Commission may accept a gift of an easement tion, water table maintenance, agriculture, flood con-
by obtaining the approval of the selectmen or the trol, beauty or control of urban sprawl. Of course,
mayor on the deed. If it pays cash out of its own the neighbors will benefit most, but it is not necessary
funds for an easement, approval is not needed. The that the donor suffer because of the easement in
town may vote to take an easement by eminent do- order to justify either a payment to him or diminish-
main using funds either appropriated at the town ing his real estate taxes. Isolated, cut up little pieces
meeting or taken from the conservation fund. If State of land are rarely worth restricting, unless they are
Self-Help is desired on the purchase, there must be a part of a unified holding.
town meeting vote authorizing the purchase. The
land can be purchased and leased back to the owner 6.08 KINDS OF EASEMENTS
subject to reservation in the town of the rights de-
sired. The town can also lease land or an interest in Easements may be for any purpose within the
land for one year. Conservation Act. The purpose is spelled out in the
QUID PRO QUO deed granting the easement and can be changed only
6.06 THE
Q Q by an amendment signed by the owner of the land
FOR EASEMENTS — from time to time and can be released only by the
ALTERNATE PLANS Commission and a two-thirds town vote. Instead of
Easements for conservation are a new and evolving creating flood plain zones, a Commission should ac-
concept. The following are five alternates to spot cash quire easements to flood the land on both sides of its
on the taking of an easement. The compensation paid major streams during spring run-off. Another type of
in all cases will equal the loss of value of the land due easement is for view such as the right to prevent
to the easement. (1) Payment, if the seller wants it, development on particular ledge land, hilltops, is-
will be an annuity purchased by the buyer with the lands, etc. The "development right" is not a clear
lump sum. (2) An appraisal of the land is made when concept so that the casement should state what the
the easement is taken. No payment is made, however, owner can and cannot do. For example, the owner
until the land is sold. Its amount is the difference, if may grant a conservation easement to a Commission '
22
while retaining the right to farm the land, cut trees, dispense with any need for a dominant estate. (Lo-
I harvest, graze cattle,or excavate minerals. See forms well vs. Boston, 322 Mass. 709, 728, 730, 79 N.E.
at Secs. 13.03 and 13.04 for further ideas. 2d 712; Horn vs. Crosthill Homes, htc., 340 Mass.
362, 164 N.E. 2d 150.) Acceptance by the town is by
the approval of the selectmen and by recording.
6.09 ACCESS BY TOWNSPEOPLE It is generally felt that if the town owns nearby
land which is directly benefited (preservation of view,
Easements may be obtained in which public access water supply protection, flood control or road) that
is neither desired nor granted, if the easement is to these easements will be enforceable by the town. If
preserve an outlook from the top of a hill, the public not until the pending act becomes law, the town
has to have a right of way to it unless it is on a public should consider acquiring a portion of the land or a
way. If an easement over a marsh is acquired for right of way.
water retention purposes, the public needs no right of
access. Perhaps an operating farm, situated between
two subdivision developments, is sufficiently attrac- 6.11 DURATION
tive to justify its retention in that use. Again, no right
of access would be needed in order to spend town Ch. 184, Sec. 23, terminates restrictions which are
moneys or to justify the reduction in taxes for an unlimited as to time "thirty years after crea-
easement of the development right. (See Sec. 7.08 for tion" . . . "except in cases of gifts or devises for
tax treatment.) public, charitable or religious purposes." Except
where a restriction is acquired by eminent domain, a
6.10 FORMALITIES notice of the restriction must be re-recorded within
thirty years and thereafter every twenty years (Ch.
A number of details are shown on the suggested
184, Secs. 26-30).
forms, Secs. 13.03 and 13.04.
The word "easement" generally means the right of 6.12 CONSERVATION RESTRICTION
' one land owner to exercise a right over the land of an ACT
adjoining owner. The first land is called "the domi-
nant tenement"and the land over which the easement Bills were submitted, unsuccessfully, to the 1966
runs is called"the servient tenement." There is an old and 1967 Legislatures to lay a firm foundation of
rule of law that there must be abutting land to justify statute under the rare practice of granting restric-
an easement. The type of right we are chiefly talking tions and easements over open land to municipalities.
about here is "a negative easement" or "a restric-' The 1968 bill seems likely to be enacted. It will give
tion." Middlefield vs. Church Mills Knitting Co., 160 municipalities the right to retain the current require-
Mass. 267, 35 N.E. 780, seems to hold that a town ment to re-record the easement each twenty or thirty
may hold an easement in perpetuity even though it years or to file a "plat index" in each registry on
does not own abutting land. It is believed that- which restrictions and easements would be shown.
Belmont vs. Mass. Amusement Corp., 333 Mass. It will, if enacted, clearly state that adjoining land
565, 132 N.E. 2nd 172, does not hold to the con- is not needed for validity. Many, many other aspects
trary. A number of other statutes give the right to of restrictions will be covered, both for conservation
receive easements to governmental bodies. (Acts and historical preservation and for private charities
1898, Ch. 463, Acts 1956, Ch. 631) The form for as well as Commissions. The Department will have
easements includes the older device of "dedication" some veto power. See the Supplement for news on
which should reinforce the other authorities and help this front.
' 23
Chapter 7 Taxation and Conservation
I
7.01 WHAT TAXES APPLY? worth, according to an appraiser, $1,000 an acre
when it is donated to a Commission or to a charity,
Not all Commission or District members need to the donor will receive not only a deduction from his
struggle with this subject but the chairman and one of income tax of $1,000 but also will avoid a capital
his smarter fellow members should have the tax ad- gains tax on the $900 of appreciated value which he
vantages of gifts to a commission in mind when a would pay if he sold it at fair value. There would be
prospective donor is bird-dogged. Tax title problems an equivalent saving of the capital gains tax under
are covered in Secs. 5.14 - 5.20. This chapter consid- Massachusetts income tax law inasmuch as the grop-
ers the Federal Income Tax, the Federal Capital erty would not have been sold. Real estate dealers
Gains Tax, the Federal Estate Tax, the Massachu- and subdividers must pay ordinary income tax rates
setts Inheritance Tax and the Massachusetts Real on profits from land sales. (other people pay a tax of
Estate Tax, all as to gifts or donative sales of either 25% or lesson such profit.)When such dealers donate
the fee or an easement in land. It is entirely possible property they save ordinary income tax on the profit
that a fairly wealthy man who hates trees and mea- which they would pay if they sold the property. Sub-
dows will end up by making a gift or a donative sale dividers thus have twice the usual tax incentive to
merely for the tax benefits possible! A full coverage give land to towns!
of "land philanthropy" is found in "Stewardship"
(Open Space Action Committee, 145 E. 52nd Street, 7.04 THE BARGAIN SALE
New York, 10023, $3,00). Town counsel should
help. If the donor cannot afford to part with all of the
value of the land which he and the Commission both
7.02 INCOME TAX DEDUCTION wish to preserve in its natural state, he can take a
position between an outright gift and a sale at fair
The Federal Income Tax regulations provide a market value. Using the above example, if he bought
deduction from gross income for the value of gifts to land at$100 which is now worth $1,000 he can sell it '
charities. Private charities should be on an Internal to the commission for $400. He will have $400 cash
Revenue Service list. Every municipality is a charity. plus a deduction of $600 against his income tax forthat year and will pay a maximum capital gains tax
In general, charities may receive up to 20% of the of only $73. The deduction may be spread over
adjusted gross income of a donor or 30% in the case the five year period as above. If the sale were at the
of donations to government agencies and some kinds cost price, $100, there would be no capital gains
of charities. This deduction is permissible in the year tax and a $900 deduction.
when a gift became final. If the value of the gift
exceeds the permissible maximum, (1RC 170(B)(1)) In order to qualify, the property must be appraised
the rest may be spread over the next succeeding five by a qualified appraiser and the charitable intention
years (1RC 170 (B) (5)). If the total value of the must be declared in the sale contract. (Reg. 1,1001-1
property is greater than an amount which can be (e)).
taken advantage of in five years, or if the donor A charitable bargain sale will give an owner a
wishes to enjoy the deductions over particular years, larger net yield than sale on the open market at the
same price. Since the Commission will be getting
an undivided interest in the land may be given in successive years. For example, a donor could give a land at less than its fair value, it should not abject one half undivided interest in a tract in 1969 and the that the owner receives part of his compensation in
tax benefits.
other half-interest by a second deed in 1975.
There is no saving in Massachusetts Income Tax 7.05 GIFT TAX AND ESTATE
which has no credit for a charitable deduction. TAX CONSIDERATIONS
7.03 SAVING THE CAPITAL GAINS If land is devised to a government or a charity, the
TAX estate does not pay inheritance or estate tax on that
property. (IRC 2055 (a) (2), G.L. Ch. 165, Sec. 1)
The rule above stated is true whether cash or land However, the income tax deduction mentioned above
is donated. If land is bought at $100 an acre but is is lost by waiting until the owner's death to make '
24
the gift. By giving land during his lifetime, an owner 7.08 REAL ESTATE TAXES ON LAND
simplifies the settlement of his estate and reduces SUBJECT TO EASEMENTS
probate costs. Should the land be the donor's only If the owner has given valuable property rights to
property in the Commonwealth, it would eliminate the town by easements, he is entitled to a charitable
ancillary administration. deduction from his Federal income tax in the year of
the gift, with a carry forward for five years if it
7.06 TAXATION OF RESERVED exceeds 20% of his income. (Rev. Rul. 57-511) The
LIFE ESTATE value of the easement is measured by the value of the
land before and after the easement was given. No
Much better than a gift by will of land to a Com- difference is known between gifts of the fee and gifts
mission is a gift during lifetime reserving a life estate. of an easement as to the other plans discussed above.
This entitles the donor to deduct the present value of Taxation of land subject to easements is, however,
the donated interest as determined by acturial tables a worrisome topic since they come in so many sizes,
used by the Internal Revenue Service (Reg. shapes and colors. A scenic easement over ledges or
25.2512-5). A combination of interests could be do- the top of a hill might affect the value of the whole
nated such as land subject to a life estate and a tract so little that an appraiser would not consider
present scenic easement for the owner's lifetime. The the land less valuable with the easement on it than
deduction will be the present value of the donated without. A perpetual easement against construction,
interest plus the value for life of the scenic easement. filling or draining level dry land is a horse of a
This maximizes the tax deductions but retains the different color. If the land were assessed as wild land
donor's present use for his lifetime. If an owner is before, it should stay the same. If it were assessed as
married and has an estate of over $120,000, the building lots before, it should be dropped to the level
value of property so donated will be included in the of wild, unbuildable land. If it has valuable improve-
gross estate at its fair market value at the time of the ments, like a golf course, they should of course be
owner's death. This does not add to his estate tax considered.
since the entire value will be subtracted as a charita- The assessors are sworn to assess all property at its
' ble deduction. Since, however, the gross estate will be full and fair cash value. The statutes (Ch. 60, Sec.
enlarged by the value of the donated property, the 45) provide that if land should ever be taken for
half of his estate which can go tax free to his surviv- taxes, the purchaser at a tax foreclosure sale takes
ing spouse under the marital deduction will be in- "subject to and has the benefit of all easements and
creased and the taxable estate will be decreased cor- restrictions. . .over said land and. . .all covenants
respondingly. (IRC 2036) Aren't tax laws wonderful? running with said premises." Thus easements over
land reduce its value for taxation. The "restrictions"
mentioned mean those affecting use. (Crocker —
7.07 REAL ESTATE TAXES McElwain Co. vs. Assessors of Holyoke, 296 Mass.
338, 348, 5 N.E. 2d 588.)
Real estate owned by a town for conservation
purposes or by a charity which is on the exempt list 7.09 TAX DEFERRAL
of the Internal Revenue Service and are used only for
such purposes (Norwood v. Norwood Civic Associa- Another approach to the problem is deferral of
Lion, 340 Mass. 518) are not liable for taxes assessed real estate taxes while the land is in its natural state.
by the town in which the land is located. At present, This is presently provided for "classified forest land"
the donor has to pay the entire tax for the year of the (Ch. 61, Sec. 1). Unless the landowner objects,classi-
gift.The author has filed a bill to permit the assessors fied forest land is taxed not on its value as land but
to abate a portion of the real estate tax for that year. one to three percent of its gross income from timber.
Chapter 253 of the Acts of 1968. If land is taken by Professor Charles Eliot has for years been advocating
eminent domain, a portion of the award is automati- a similar tax deferral plan for marshes and upland.
cally paid to the town for its taxes. The above prob- There is more interest in this plan and it could well
lem arises only with gifts or purchases. make the grade soon.
' 25
Chapter S State Conservation Programs
I
8.01 INTRODUCTION ing, camping, and provisions for swimming, games,
winter sports, trails, comfort stations, food accomo-
The Commonwealth of Massachusetts by its De- dations and the like.
partment of Natural Resources is engaged in a long
term program of acquiring land for state forests, state 8.03 SELF HELP PLANNING
parks and reservations. Since the adoption of the REQUIREMENTS
Conservation Commission Act, it has pioneered in
cost-sharing acquisition of smaller parcels with mu- One of the main concerns of the Department is that
nicipalities. It is felt that local participation assures local communities devise a natural resource open
intelligent choice of lands and popular support, both space-recreation plan and that this plan of action be
as demonstrated by local appropriations. Further, orderly, soundly-based and consistent with the needs
maintenance of the land acquired by cost sharing and demands of the citizens for whom the plan was
becomes solely a municipal matter. Since conserva- formulated. On June 23, 1966 the Board of Natural
tion land is akin to park land, it is believed that all Resources of the Department voted the following
citizens whether residents of the town or not may policy: "On July 1, 1967, and thereafter, no applica-
enter upon any conservation land owned by a town tion under the Self-Help Program will be entertained
whether or not there is any State or Federal cost by the Commissioner of Natural Resources unless the
sharing.Thus there is no distinction as to use because conservation commission has on file with the Depart-
of acceptance of State or Federal funds. ment a natural resource open-space and recreation
The State, like the Federal government, requires plan for the community".
that,lands acquired for conservation purposes remain The Department tries to coordinate efforts in the
devoted to it for at least 20 years. If there is need to municipal open space planning process in order to
change a use, the State will either give such permis- meet requirements of the Department of Housing and
sion upon the acquiring of equivalent land or will Urban Development Open Space Program and the
expect to have its money refunded should the land Bureau of Outdoor Recreation Land and Water Con- '
acquired be sold or used for other than conservation servation Fund Program.
purposes. The only instance of diversion to date was Many Commissions are unaware of these require-
the building of a town bridge on a small corner of a ments and many more are confused as to what a
marsh acquired with matching funds. In this case natural resource open-space and recreation plan
permission'was granted and no equivalent land pur- should include.
chase was asked. In eight years 306 applications have Ideally, that Department would like to have on file
been received asking for $3,315,000 of State funds. a comprehensive city or town master plan and espe-
Applications have been approved for a total of cially that portion which deals with recreation and
$3,000,000 State grants. 65 cities and towns have conservation. Master plans financed in part by HUD
filed requests. Lunenburg, with 23 projects, leads 701 grants are most acceptable if current or updated.
all the rest. Comprehensive Master PIans are acceptable under
8.02 THE SELF HELP ACT— all three programs, i.e. HUD, BOR and Self-Help.
USE REQUIREMENTS However, a city or town may file a separately
prepared natural resource open space-recreation plan
The Self-Help Act (Sec. 12.04) says that the Com- if it so chooses. This plan must be more than just an
missioner of Natural Resources may assist cities and index of open space recreation areas. What the De-
towns which have established Commissions in ac- partment is looking for is a sound plan of action
quiring land and in planning or designing suitable consisting of a five year short-range acquisition and
public outdoor facilities. The land to be acquired development program plus a long range acquisition
must be, so far as practicable, preserved in its natural proposal. Soil surveys and natural resource invento-
state. Further, it shall also be insofar as possible ries are excellent tools for formulating such a plan
collectively self-supporting and no commercial activi- and should be used if possible.
ties except those essential to the enjoyment of the Goals, objectives, and action programs must be
facilities are permitted. The planning power includes presented. They should tie based on socio-economic
public recreational facilities, roads, parking, picnic- factors, population trends and needs of the communi- '
26
ty. The plan must be a comprehensive investigation interests in land. Thus the municipality must ap-
of factors affecting conservation and outdoor recrea- propriate, transfer from available funds or vote to
tion lands and programs. The latter type of plan expend from its conservation fund under Clause 51
would, however, probably be unacceptable to the of Sec. 5 of Ch. 40 the total cost of the project. The
Department of Housing and Urban Development in reimbursement will not be given until the project has
the absence of a comprehensive master plan. been completed to the satisfaction of the Commis-
sioner in accordance with the plan and preliminary
8.04 SELF HELP FUNDING approval. The reimbursement must be applied to the
REQUIREMENTS payment of any indebtedness incurred in acquiring
such land. (Sec. 5.11) At one time there was It re-
The program started slowly but in 1965, $278,000 quirement that the payment had to be made from the
of State funds had been spent. $700,000 was appro- conservation fund, not from general appropriations.
priated in 1967 and $1,000,000 in 1968. Previously Therefore it once was necessary to build up the fund
towns within the Metropolitan District Commission in order to qualify for the Self-Help grant. By
were not eligible to participate in the program, since amendment to the statute, this is a possible means of
it was funded from a bond issue to which they did not purchasing the land but a direct appropriation may
contribute. Now that the funds are appropriated from be made.
general revenues, all towns and cities may Partici- Although land may be purchased by a Commission
pate. Previously there was no grant if Federal funds from appropriated funds, from money in its conser-
were obtained. The Department now is willing to vction fund or otherwise available to it, it cannot get
participate on an equitable basis which may be 25% a Self-Help reimbursement grant unless a town tneet-
town funds, 25% State funds and 50% Federal ing has passed a vote authorizing the purchase of a
funds. The Act prevents the state from paying more particular parcel or rights in particular land.
than 50% of the cost. The Department does not wish
to pay more than the local share. 8.07 STATE PROGRAMS
8.05 SELF-HELP PROGRAM — The Legislature in 1966 authorized up to
' MECHANICS $5,000,000 of bonds to be used by the Department of
Public Works for construction of recreation facilities
The Director of the Division of Conservation Serv- and beaches in six counties. It authorized the Depart-
ices exercises general control over the Self-Help Pro- meet to spend $5,000,000 for development or re-
gram. That Division should be contacted early to development, planning and improvement of outdoor
obtain preliminary approval of the project and ad- recreation areas, including acquisition of land. The
vice as to the few necessary forms, including plot D.P.W. may spend $1,000,000 to plan and provide
plans. Approval by the Department is absolutely ocean beaches outside the M.D.C. districts while the
essential prior to the taking of final steps by the M.D.C. was authorized to spend $5,000,000 on re-
town, it is strongly urged that no final action be taken creation facilities within its district.
in reliance of State participation until preliminary
approval is given in writing. An investigation will 8.08 THE HATCH ACT,
be made by the Division and preliminary approval ADMINISTRATION
will be given before town meeting if there are funds (Ch 131, See. 40)
enough and if its other requirements are met. While
reserving its rights to react to changed situations, (See Sec. for a description of the Act and
the Division has never gone back on a preliminary Sec. forr the
he text.)
approval if the town has acted on the basis of such Inllandand waters are "All waters within the jurisdic-
approval. tion of the Commonwealth other than Coastal Wa-
ters". An owner proposing to remove, Fill or dredge
any bank, flat, marsh, meadow or swamp bordering
8.06 SELF-HELP ACT— on inland waters must give notice. The Division of
LEGAL PROCEDURES Waterways always had some powers over inland wa-
ters which are restated in the Hatch Act but new
The program is one of reimbursement of funds power is given by the Act to the Department of
' actually expended by a town or city for land or Natural Resources if it determines the area affect-
27
ed"to be essential to public or private water supply 8.09 THE JONES ACT -
or proper flood control". COASTAL WETLANDS
Notice by registered or certified mail is sent by the (See Sec. 10.13) Ch. 130, Sec. 27A requires a
developer to the selectmen or mayor, to the Depart- similar notice and a hearing before the selectmen or
ment of Public Works and to the Department of mayor prior to the start of filling or dredging or
Natural Resources 30 days prior to the start of work. removal of any bank, flat, marsh, meadow or swamp
There is a local hearing 14 days after the notice. The bordering on coastal waters. Coastal waters are "All
selectmen should notify the Commission of the hear- waters of the Commonwealth within the rise and fall
ing. An alert Commission should attend the hearing of the tide. . . . ."
after inspecting the land and help the selectmen ar- Notice goes to the selectmen or mayor, to the state
rive at a proper recommendation. The selectmen or Department of Public Works and to the Director of
mayor may recommend protective measures, which Marine Fisheries (within the Department of Natural
should be submitted to the Commissioner of Natural Resources) at least 14 days before commencing the
Resources within 7 days from the hearing date.These work. The selectmen or, in the case of a city, the
should relate to public or private water supply or to licensing authority, shall hold a hearing within 20
proper Rood control to be in line with the statutory days, (which might be too late.) Their recommenda-
intent. tions as to "such bulkheads, barriers or other protec-
There are certain exemptions written into the law_ tive measures as may protect the public interest" are
Flood plain zones established by the Water Re- made to the two state departments which, however,
sources Commission and land used for agricultural are not bound by them. Public Works can enforce its
purposes are both exempt from Section 40. Also powers over tidal waters under Ch. 91, Secs. 30 and
exempt are projects authorized by special acts of the 30A. "if the area on which the proposed work is to
Legislature and projects operating under the various be done contains shellfish or is necessary to protect
Mosquito Control sections of the Massachusetts Gen- marine fisheries, the said director (of Marine Fisher-
eral Laws. ies) may impose such conditions on said proposed
The Department of Public Works reviews the pro- work as he may determine necessary. . . .
posed project to determine if the proposal comes There are certain exemptions in this statute also '
within the Chapter 91 of the General Laws. The which are projects and the ordinary work of a Mos-
Department of Natural Resources issues an Order quito Control project operating under the appropri-
under which the work will be carried out. Some 600 ate statute. The provisions of this law do not apply to
such orders are now in effect. work authorized under a special act of the legislature.
The Department of Natural Resources has issued
regulations (available on request) exempting projects,
which can satisfy this method of compliance, from 8.10 INLAND WETLAND ACT
the Act. This method of compliance requires that the (See discussion at Sec. 10.12). After two years of
applicant (owner or his authorized agent or attor- legislative action, it appears likely that a bill will pass
ney) obtain the concurrences of the planning board, in 1968. See the Supplement to this Handbook at this
board of health and Commission if such exists in the section for further news.
municipality. These concurrences plus a statement of
agreement to abide by any conditions set forth in the 8.11 COASTAL WETLAND ACT
concurrences and a notice of intent and plan make up
a petition which must be submitted to the selectmen (See discussion at Sec. 10.14 and statute at Sec,
or mayor as well as the Departments of Public Works 12.06).
and Natural Resources. The project, under this form The Coastal Wetland Act differs from the Jones
of application, must be completed within one year. Act and the Hatch Acts in the following respects: (a)
There is no public hearing required under this meth- the former impose regulations on whole marshes,
od of application. before any filling, etc. is proposed, while the latter
Enforcement of the restrictive acts is a major prob- imposes conditions only as to particular parcels of
lem and the Department relies heavily upon the land as to which development is planned and (b) the
Commissions to alert it as to violations. Messages of former are a compromise between regulation under
this type should be directed to either the Division of the police power and takings, since compensation
Law Enforcement or Division of Conservation Serv- may be paid and the regulations are recorded in the
ices, both in the Department. Registry of Deeds. t
28
The Coastal Wetland Act permits the Commis- or by dumps (Ch. I11, Sec. 150A), by sewage or
sioner of the Department to adopt orders "prohibit: industrial wastes (Ch. 21, Sec. 43) or pollution of
ing dredging, filling, removing or otherwise altering coastal waters by anything (Ch. 130, Secs. 22-
or polluting coastal wetlands." These are lands sub- 27).
ject to tidal action or coastal storm flowage and"such
contiguous land. . .necessary. . . (to) carry out the 8.13 POLLUTION ABATEMENT
purpose. . ." of the Act. First there is a local public DISTRICTS
hearing with notice to the local owners and officials.
Upon adoption of an order,it is recorded in a Regis- '
The act authorizes the establishment of districts
try of Deeds. The owner has 90 days to commence a
which are separate governmental bodies much like
proceeding in a court to determine that the order as
to him is "an unreasonable exercise of the police school districts encompassing several cities or towns
power because the order constitutes the equivalent of or only a portion of a town. Each district has a
a taking without compensation". If this is found, the commission to develop plans and obtain grants from
order is void as to that owner. There is no provision the State and Federal governments. It constructs sew-
for compromise settlements, as appears in the draft age disposal or water treatment works and issues
Inland Wetlands Act. The Department may, howev- bonds for the remaining unfunded costs. The bonds
er, take the interest in land by eminent domain. are paid by assessments on the users of water, as far
There are some exceptions in the statute. It may be as possible, and otherwise by the municipalities in-
enforced by criminal penalties or in a court of equity. in-
volved. Districts construct reservoirs to provide
T sources of pure water and low flow augmentation of
The Department, in a proper case, is prepared to
amend a regulation to permit anon-injurious use. streams. Permits must be obtained From the division
before discharging effluants into waters of the Com-
8.12 THE DIVISION OF WATER monwealth. This new division should be a powerful
POLLUTION CONTROL ally in the battle against pollution which is being
fought by conservation minded people at all levels.
The newest division in the Department encourages
towns and other users of water to adopt plans for the
prevention and abatement of water pollution. It- 8.14 PUBLIC ACCESS BOARD
cooperates with others, conducts programs, adopts
standards of water quality to the various streams in The Commissioner of the Department is chairman
the Commonwealth, examines water quality, pre- of a board which acquires and develops access points
pares comprehensive plans and arranges to do work to the ocean, inland waters and to great ponds. Park-
in the field. Other pollution control statutes are (Ch. ing areas and launching ramps are constructed where
1 11, Sec. 160-164) or by oil (Ch. 91, Secs. 59, 59A) needed. (Ch. 21, See. 17, 17A.)
' 29
Chapter 9 Federal Grant Programs
9.01 INTRODUCTION 9.04 OPEN-SPACE LAND PROGRAM,
REQUIREMENTS
The limitations of it "Handbook" are felt when one
tries to describe sixteen Federal programs to help One should write HUD for publications labeled
municipalities with conservation objectives. Only the OS-5, OS-6 along with UB-1 (the above totaling
bare bones of the less important programs can be some 30 pages) before seriously considering a pro-
given while the two major programs, the Housing and ject. The town must be within a regional planning
Urban Development Department (HUD) program agency in order to qualify. Perhaps three-quarters of
and the Bureau of Outdoor Recreation (BOR) pro- Massachusetts towns are in regional agencies which
grams are given some coverage. All are subject to are at least commencing a plan. The land to be
change of regulations and instructions. The material purchased must be primarily for natural purposes
possible to include here will, at least, give Commis- although there may be plans for roads, basic utilities
sions the basic warning that authority to request a and some minor improvements for recreation. Money
grant from an agency must be obtained by town is not granted for a gymnasium, swimming pool, golf
meeting vote and the agency must give written ap- course or the like. Historic areas can be preserved. A
proval before any binding town action is taken under plan is sufficient so long as it contains a coordinated
either,program, will outline certain procedures and program for acquisition and development of open
where to obtain up-to-date rules. The officials con- space. A master plan done under Section 701 with a
cerned are helpful but Federal funds are available for capital improvement program would suffice. The
only one out of six requests and there are a lot of Commission should contact the regional planning
hurdles to be surmounted before the check arrives. agency to check this out before proceeding further.
9.02 THE OPEN SPACE LAND 9.05 OPEN SPACE PROGRAM -
. PROGRAM PERCENT OF PAYMENT
1
Currently priority is being given to projects in
The HUD Open Space Land Program is adminis- urban areas where there are insufficient park and
tered by the Assistant Regional Director for special recreation facilities and where the municipality has a
programs, Region I., HUD, 246 Broadway, New high cost per capita or a high cost compared to the
York, New York (212-264-8033). Over him is valuation of its property. Fifty percent matching
Robert T. Wood, Under-Secretary, Department of grants are the usual amount although a few eligible
Housing & Urban Development, Washington D.C. demonstration projects may receive up to 90%.
It is operated under the Federal Housing Act of 1961 These can be 25% town funds, 25% state funds and
as,amended by the "Housing & Urban Development 50°10 of Federal funds for conservation protection'.
Act of 1965 (79 St. 451, PL 89-117, Sec. 901) Assistance in the acquisition, clearance and develop-
Grants made under it help municipalities acquire
land which will belong only to them ment for open space purposes is included. "Park,_ The Department of Natural Resources should be kept advised but recreation, conservation, scenic or historic purposes"
it is not directly involved. A town does not have to are included. Note that funds may be used in part not
only for the purchase of land but for development,
have a Commission to qualify. planning, engineering, overhead but not for mainte-
nance.
9.03 OPEN SPACE PROGRAM, 9.06 TOWN MEETING
FUNDS AVAILABLE AUTHORIZATION &
The funds are appropriated by Congress each year AGENCY APPROVAL
and will probably be $75,000,000 for the Nation in A town must pass a vote at a town meeting author-
1968. A request for $125,000,000 was turned down izing the selectmen or the Commission to contract
by Congress in 1967. Funds are very limited (in with the agency concerned for reimbursement under
March, 1968) for the whole Open Space program 'the appropriate fund before any project may be ap-
administered by HUD. proved. ,
30
Preliminary approval of an application by either from the New England Regional Office. It is best to
HUD or BOR is mandatory before a town has signed see the Division of Conservation Services early in the
a binding contract or before it has made a taking game.
of land. Preliminary approval is given by "a letter of
consent". HUD may write that the appraised price is 9.09 SMALL WATERSHEDS ---
satisfactory to it; this must not be read as the "letter P.L. 566 - ADDRESSES
on consent". A Commission should not even hire an
appraisal firm before receiving a "letter of consent." When beginning to think about sponsoring a small
The requirements include one against discrimination watershed project under P.L. 566,see Dr. Benjamin
against non-residents. There may, however, be a dif- lsgur or Karl R. Klingelhofer, both at Soil Conserva-
ferent fee for non-residents. For example, if town tion Service, USAD, 29 Cottage Street, Amherst,
funds have been used for a bath house, townspeople Massachusetts(413-253-3474). Also contact the con-
may be charged less than strangers. A form is pro- servation district supervisors (Ch. 4). Contracting is
vided as Attachment C to Letter OS-5. Attachment often by the Water Resources Commission
D is a form for an opinion of counsel. (617-727-3267). A little under $1,000,000 is spent
on this program each year.
The Federal Government will pay 100% of the
9.07 THE BUREAU OF OUTDOOR cost of flood prevention work and 50010 of expendi-
RECREATION, ADDRESSES tures for irrigation, recreation and wildlife manage-
ment but no part for water supply. It will, however,
The Bureau of Outdoor Recreation is in the De- finance the portion of the cost attributible to water
partment of the Interior. "Land and Water Conserva-lion fund". (Public Law 8$, 578 (78 5t. 897) is built supply until the system is operating and will provide
loans up to 50 years for the local share of the cost.
up from the sale of stickers enabling visitors to use Special approval must be obtained from a committee
the national parks and through the safe of govern- Congress as to any project requiring over
Con
ment surplus real property and the Federal motor- of f Con0.
boat fuel tax, grazing and other charges for use of
other national lands. Roland B. Hanley is Regional 9.10 SMALL WATERSHEDS -
Director,
Northeast Region, 128 North Broad Street, PURPOSES
Philadelphia, Pennsylvania 19102. However, the
program is administered through the Division of
Conservation Services, under Arthur W. Brownell The prevention of soil erosion, excessive runoff,
{727-3172). Until 1967 there was a legal problem control of floods, improved drainage conditions on
which prevented grants but this has been resolved by land, providing for efficient irrigation, supplying wa-
ihe Legislature. Funds are matched up to 50% of ter for municipal needs, enhancing fish and wildlife
the total cost. The funds allocated to Massachusetts resources and development for combined recreation
aggregate around $5,000,000 but at least 10% of it and municipal water supply are possible under the
or $500,000 must be given to municipalities. program. For details obtain the following authorities:
"Multiple Purpose Watershed Projects,
U.S.A.D. PA-R73. May '33 (13 pp.); SCS-
9.08 BUREAU OF OUTDOOR C14-Rw. 8A pr. '63 (4 pp.) (Illus.) "Small Wat-
RECREATION - ershed Projects"; Community Watershed Plan-
PROJECTS ASSISTED ning, Program Aid 528 (Illus.) The funds may
not be used for purchase of land, for overhead or
Acquisition and development projects related to for maintenance but can be used for develop-
the heavy use of outdoor recreation facilities are ment, planning and engineering.
preferred. If there seems to be overlapping between
this program and the Open Space Land Program, 9.11 SMALL WATERSHEDS -
there can be a conference on the Federal level. Under AGREEMENTS
this program, preference will be given to projects
where recreation is the main purpose rather than Since a watershed is a composite of private action
scenic or historic or passive recreation. There is a on land and construction of facilities, no plan will be
Land and Water Conservation Fund Program Man- approved until at least 50% of the landowners on the
' ual available 'from the Division and a "fact sheet" watershed above the proposed structures have signed
31
agreements to permit proposed conservation practices funds and 25% State funds for taking of signs and
on their land within the project period. Engineering land for signs. A similar amount is available for '
assistance will be supplied by the Federal Govern- screening junkyards. There is supposed to be
ment for the construction portions while the Soil $120,000,000 per year for landscaping and scenic
Conservation Service will provide engineering serv- enhancement which is included with 90% of Federal
ices for land treatment. funds in the Federal highway program. For further
details consult the Department of Public Works, 100
912 URBAN BEAUTIFICATION, Nashua Street, Boston, Mass.
ADDRESSES
9.15 FEDERAL WATER PROJECT
(See Sec. 9.05 on Open Space land program which RECREATION ACT
is operated from the same office.) Urban beautifica-
tion provides 50% of the excess over the average This is administered by the Water Resources Com-
cost to a government agency for its urban beautifica- mission which is a branch of the Department and also
tion programs. For example, if a town normally at 100 Cambridge Street, Boston (617-727-3267)
spends $20,000 per year for beautification or mainte- See 79 Stat. 213, PL 80-72)
nance of its parks and reservations and decided to
spend $30,000 per year for five years, the Federal 9.16 WATER RESOURCES PLANNING
share would be half of the extra $10,000 per year. ACT
There are also funds for capital programs. The poor-
er towns and cities in metropolitan regions are pre- This is also under the Water Resources Commis-
ferred. The program is conducted under Title V 1I of sion and is funded by 79 Stat. 244, PL 89-80.
the Federal Housing Act of 1961 as amended by the
Housing and Urban Development Act of 1965. The 9.17 WATER QUALITY ACT
municipality owns the improved facilities. The State
does not participate in this program. The United States Department of Health, Educa-
tion and Welfare, Washington, D.C. establishes
9.13 URBAN BEAUTIFICATION — standards of purity of water. Sewage treatment and
PROJECTS water pollution control is handled by the Division of
Water Supply and Pollution Control, Public Health
The purchase and development of open space land Service, Washington 25, D.C. About $50,000,000.
or for demolishing buildings to make open space for per year is appropriated for the Country. Grants
park and recreation, conservation, historic or scenic average from 30% up to $250,000 per project. None
purposes are all included. The land to be benefited of these funds may be paid for a collection system.
must be publicly owned or controlled such as streets, There is a special act for water and sewer system
parks, sidewalks, squares and plazas. Refer to HUD grants in rural areas — Public Law 89-240. The
letters Number UB-1, Nov. 24, 1965, HHFA (24 money is chiefly spent for sewage treatment plants. In
pp); Beautification Aid for Urban Areas (8 pp) (11- connection with these grants, see Secs. 8.12, 8.13
[us); Forest Resource Development, Public Forestry with reference to the Massachusetts Anti-Pollution
Assistance for Small Woodlands (PA-409) Forest Acts. Funds will not be granted for purchase of land
Service, US Department of Agriculture, Washington, or for maintenance but they are used for development
D.C. Funds may be used for purchase, development, and engineering.
maintenance of land, for planning for engineering
and for overhead. 9.18 SHORE PROTECTION WORKS
9.14 HIGHWAY BEAUTIFICATION Federal assistance for work on shores and tide-
lands is handled through the district office, Army
The Highway Beautification program is run by the Corps of Engineers, 424 Trapelo Road, Waltham
Bureau of Public Roads, Department of Commerce, (617-894-2400) or the Chief of the Corps of Engi-
Washington, D.C. It is designed to control outdoor neers, U.S. Army, Washington 25, D.C. There has to
advertising, junkyards and enhance landscaping and be a separate appropriation for each item. It is usual-
scenic beauty. $20,000,000 per year is available for ly 50% but goes up to 70% for protection of certain
the United States which is matched 75% Federal publicly owned parks and conservation areas, exclu- '
32
sive of the cost of land. The work is authorized by 9.22 ASSISTANCE THROUGH THE
` the 1930 River and Harbor Act and the 1962 River JOB CORPS
/ & Harbor's Act, Sec. 103. Prevention of shore ero-
sion and recreation are the major objectives. A good Neither the Job Corps nor the Neighborhood
description of the program is found in "Water Re- Youth Corps, mentioned in the next section, have
sources Development in Massachusetts", January I, any funds to donate but they have something almost
1965 (140 pp.) (Illus & Maps), U.S. Army Engineer as valuable — labor of semi-skilled conservation
Division, New England. workers. It is understood that the New Bedford Cen-
ter does not work on conservation projects but the
9.19 NAVIGATION WORKS Wellfleet Job Corps Conservation Center, James W.
Corson, Center Director, has a good program of
The Corps of Engineers (see above) also is in assistance to towns on the Cape. The whole program
charge of projects to improve or protect navigation is under the Office of Economic Opportunity,Washing-
subject to specific appropriation. The Federal share ton, D.C. and is part of the President's Anti-Poverty
seems to vary from 50 to 100%. In recent projects Program. The 100 men at Wellfleet study 60% of the
Marblehead received 73% of a proposed breakwater time, do conservation work 40% of the time. The
and Plymouth got 80% of its harbor improvement Corps supplies travel of the men but the town sup-
cost. See the 1960 Rivers and Harbors Act, which plies machinery and tools. Each project must be
describes the work on channels, anchorages for re- cleared through Washington but this is not consid-
creation, fishing craft and small craft. No assistance ered difficult. There are other Job Corps conserva-
is given for marinas or docks. tion centers in national parks or forests where dormi-
tories and mess halls already exist. Since the Cape
Cod Sea-Shore is the only national park in Massa-
9.20 FLOOD CONTROL WORK chusctts, there is no ready way to establish other
centers but it is understood that if free dormitories
The Corps of Engineers assists municipalities in and mess halls could be obtained elsewhere, possibly
preventing flood damage as appropriated. 100% of other centers could be established. Preference is giv-
' grants are given for river basins, about 50% for local en to care of Federal and public lands but this is not
protection. The enabling legislation is P.L. 874, 87th essential. Shellfish were protected in Provincetown.
Congress, P.L. 685, 84th Congress, and the 1962 Other towns have had tent caterpillers eradicated.
Flood Control Act, Sec. 205. Changing channels or
impounding water and combinations of these are 9.23 NEIGHBORHOOD YOUTH CORPS
the principle projects supported. Small dams must be
maintained by the town as in the other programs so This group of young men will perform projects in
administered. The cost of land is up to the town as the same city or town. The address is "Neighborhood
well as maintenance. In all of these projects the Youth Corp, U.S. Department of Labor, Washington,
Corps of Engineers studies pt aposals to establish that D.C. 20210." For general information: Lesly Firth,
they meet the needs of the people, have their support Head Supervisor, Neighborhood Youth Corp, Leon
and are economically feasible so that the benefits Street, Boston, (RI 2-4210). "there is a fact sheet.
exceed the cost of each project purpose.
9.24 MISCELLANEOUS FEDERAL
9.21 SMALL PROJECTS AND PROGRAMS
EMERGENCY WORKS The following are smaller or more specialized pro-
grams which do not deserve special treatment;
In addition to the above, the Corps of Engineers 1. Agricultural Conservation Program --cost
obtains funds automatically which may be disbursed sharing
without special appropriation for small or emergency 2. Credit from Farmers Home Administration
river, shore navigation or flood control projects. 3. Town forestry assistance under the Cooper-
Studies may be done with such funds. Recently a ative Forest Management Act.
number of flood control projects of $50,000 to 4. Protection of forest areas from fire, insects
$100,000 each were done. The town purchases and and diseases under cooperative programs ❑uthor-
maintains the land. For studies see: P.L. 874, 87th ized.by Clarke-McNary Act, Forest Control Act
' Congress, 23 Oct. '62, P.L. 685, 84th Congress. and White Pine Blister Rust Proctection Act.
33
5. Assistance in recreation, fish and wildlife Development Projects and Rural Renewal Pro-
development from the Fish and Wildlife Service, gram. I
the Bureau of Outdoor Recreation and state fish 7. The Soil Conservation Service provides a
and game agencies. soil analysis on a cost-shared basis which is one
6. Technical, cost sharing and credit assist- of the best bases possible for a conservation pro-
ance from the Department of Agriculture author- gram. (Sec. 4.11)
ized by the Agricultural Act of 1412 for If a Commission needs further help than it can get
income-producing recreation developments on at the Department, its Congressman will supply the
rural land, Reserve Resource Conservation and latest information.
1
34 '
Chapter 14 Zoning and Other Police Powers
10.01 INTRODUCi'ION "A little knowledge is a dangerous thing."The reader
and his fellow members on a Commission are urged,
Chapters I through 3 and 5 through 9 discuss before acting, to confer with the Department, with
control of land by acquisition of title or easements. the Department of Commerce and Development and
Control of land for conservation without actually to attend Association meetings so as to learn of the
buying it may be attempted by a municipality under latest developments in the field. Then they should
the "Police Power." Men wearing badges and car- consult town counsel or obtain permission from the
rying night sticks are only one example of the "Police selectmen to employ counsel.
Power." This chapter is concerned with the rights of
a town under the State and Federal Constitutions to 10.04 LARGE LOT ZONING
forbid or command people to do things for the public Many towns have relied on zoning requirements
"health, safety and welfare." These rights include for wide frontage and large lot areas to serve the
zoning, subdivision control, building by-laws, health purposes of conservation. The Planning Federation
regulations, and the Hatch and Jones Acts. reported in January, 1966, that 14% of privately
If Farmer Brown were prohibited by a five-acre owned land was zoned for 40,000 to 45,000 square
zoning by-law from developing his 40 acres into feet, l% from 45,000 to 60,000 square feet, and 7%
more than eight house lots, he might prove his land over 60,000 square feet per building lot.
has been diminished in value without compensation A study financed by the Massachusetts Federation
and without justification in (a) public health (who is of Planning Boards and the Massachusetts Home
sick enough to transfer germs across five acres?), (b) Builders Federation about ten years ago done by
public safety (tire could never leap that far) or (c) M.I.T. indicated that lots were about as cheap in 30
public welare (he is supplying a free park). The town to 40 thousand foot sizes as in 10 to 12 thousand foot
by-law would then be declared unconstitutional as to sizes since the larger lots did not need sewers, side-
him. It might be constitutional as to someone else. walks or curbstones. Boards of Health may deny it
Similar problems arise if certain districts are zoned building permit if a percolation test is not satisfactory
only for"conservation" uses. or if there is not a satisfactory leaching bed.There is
10.02 7'HE ZONING POWER a limit, however, as to the benefits to be obtained for
conservation (as distinguished from an interesting
place in which to raise children) by large lot zoning.
Zoning by-laws and ordinances are adopted by Some states have validated 5 acre zones but the
townspeople under an enabling statute(Ch. 40A,Sec. Massachusetts Court, in a 1965 case {I) held that a
2) and are enforced by local officials. Each has to 100,{)00 square foot residence zone was unconstitu-
behave conscientiously and within constitutional tional as to the plaintiff. The large lot zoning was
bounds. Flexibility in the system is valuable. If arbi- stated to have been adopted to encourage leaving
trary action is taken, relying on the fact that resort to land in a natural state. The Court said:
the courts is costly and time consuming, focal author- "Wecannot resist the conclusion that, however
tune.
ity may well be taken away by an aroused Legisla- worthy the objectives, the by-law attempts to
achieve a result which properly should be the
Much of this system is"Common Law,"a record of subject of eminent domain. As Mr, Justice
similar cases in this and sister states. Footnotes refer Holmes said: "while property may be regulat-
to case names and statutes which are listed in Sec. ed to a certain extent, if the regulation goes too
10.24. Sample by-laws are shown at Sec. 13.07. The Far it will be recognized as a taking. . ."
author has consulted competent persons but is alone Another weakness with zoning is that it can be
responsible for the opinions expressed herein. changed any time on a two-third's vote of town meet-
10.03 LEARNING ABOUT ing'
REGULATIONS 10.05 CLUSTER ZONING
This chapter will mention powers now available to A promising field for gifts to Conservation pur-
' a town and a few available to the State. It is said that poses is the increasing use of zoning by-laws permit-
35
ting lot frontages and areas less than otherwise re- have been granted. It is the cumulative effect of many
quired if the land saved is preserved as a natural fills and effect on other towns up or down the stream
area. See the North Andover and the Sharon Zoning which are ignored in such piecemeal decisions.
by-laws. The real estate developer should not retain State action under the proposed "Inland Wetlands
the reserved areas. In Weston and other towns, devel- Act" (Sec. 10.12) will avoid the weakness of the
opers have donated these to Commissions or to land Flood Plain Enabling Act, since it clearly will not be
trusts. Special "Whereas" clauses and provisions for limited to "the health and safety of the inhabitants
access should be included in such deeds. It is doubt- thereof' and will avoid the town limitation, since it
ed that a Commission should accept a plot if access is will act on whole stream basins.
to be limited to the abutters.
10.06 FLOOD PLAIN ZONING, 10.08 MISCELLANEOUS ZONING
LEGAL BASIS MATTERS
The Zoning Enabling Act (Ch. 40A, Sec. 2) per- The author has heard of only one "agricultural
mits municipalities to regulate "the use of. . .land for Zone in a Massachusetts town. One case (3) permit-
ted to a town to agree to rezone an area to industry if
trade, industry, agriculture, residence or other pur- the owner gave land to the town for park purposes.
poses" and says that, ". . .lands deemed subject to seasonal or periodic flooding shall not be used for This was called "Contract Zoning" and should not
be relied on extensively.
residence or other purposes in such a manner as to The Water Resources Board has been authorized
endanger the health or safety of the occupants there- by special acts to establish flood plains in three par-
of." The only court discussion of (food plain zoning titular rivers. A Connecticut case (4) upheld this
occurs in a 1965 case (2) in which the land involved kind of state action, emphasizing the use of "sound
abutted upon a "flood plain district." In a footnote engineering principles."
the Court said:
""phis is under an anomalous by-law provision
for double zoning, a flood plain district being 10.09 HOW IS THE ZONE BOUNDED '
superimposed upon whatever the underlying zone
happens to be. Such a district may not be filled, Any "Conservation Zone" or flood plain district
and only limited structures may be built there." requires boundaries. This can be important in sub-
urbs where building lots may be worth $5,000 to
10.07 FLOOD PLAIN ZONING, $10,000. An owner is entitled to know accurately
LIMITATIONS what zone his land is in. If the contour line above
high water at Boston is used, it may be sufficiently
The Zoning Enabling Act language, "land. . .shall exact so that any two surveyors will agree, within a
not be used. . .in such a manner as to endanger the few feet, as to the limits of the zone when a permit to
health or safety of the occupants thereof," has been build in the zone or district is requested. This will
interpreted by a respectable minority of the bar as work only where a stream enters and ]caves a town
merely a warning that land must be filled before it within a few feet of the same elevation and has banks
may be built upon. Others believe it is broad enough rising near the stream. It will not work i1 extensive
to deny anyone the right to build not only for his own marshes are involved where, for example, a two lout
"health and safety" but for the health and safety of rise of water would flood 100 to 200 acres. if the
the residents up and down the stream. town is in hilly country, reference to the contour
If the first interpretation is correct, anyone owning would have to change every few hundred feet along
land in a floodplain district will get a building permit the stream. To survey both banks of the stream has
if he fills his land enough to satisfy the Board of been estimated to cost $6,000 per mile. In some
Health requirements for leaching beds (See. 3.25).,If planes, a set-back line from the thread of the stream
the second interpretation is correct, no building per- will work. Combinations of two or mire systems may
mit will be given unless the by-law provides (as most be worked out. Some exact markings of heights
of the 15 to 20 known by-laws do provide) that a reached by hurricane Diane or the March, 1968,
permit may be given if the owner proves the fill or floods will help win permit cases. If some dry land is
building will have an insignificant effect on the stream restricted by a set-back line, this can be corrected
flow. It has been said that most of such applications when a permit is asked lor. There is no justification '
36
for such a restriction upon building if the motivation has been such a deprivation of the practical uses
` of the town is the domestic water supply, natural of a landowner's property as to be the equivalent
beauty, wild life or the amenities of life. of taking without compensation."
10.10 "CONSERVANCY" ZONING 10.12 THE INLAND WETLANDS ACT
In January, 1968, Governor John A. Volpe sub-
Several towns have adopted "Conservancy zones" muted a bill with a special message to authorize the
or a zone with a similar name. If possible under the Commissioner of the Department to restrict the fu-
ture use of land in or under inland waters. As draft-
including conservation in the meaning of the words ed, such lands include those subject to storm flowage.
"or other purposes." The most carefully drawn con- Action would be on whole stream valleys, in advance,
servancy zone known (Wayland) is essentially a flood not on a parcel by parcel basis as under the Hatch
plain zone. One town has a "conservancy zone" in Act (I0)(Sec. 10.16).
which no land is bound until the owner goes to the The Commissioner would be empowered to limit
town hall and signs his consent. Land in a conservan- use of land except for agriculture and certain similar
cy zone in which nothing but agriculture and the like is purposes but only after local public hearings with
permitted stays on the tax rolls assessed to the same notice to local officials and landowners. The restric-
owner. He may well object to paying the taxes. The tions would be recorded as are deeds. Landowners
difficulty of creating a constitutional conservancy proving good title could either (a) agree to a cash
zone is shown in the S. Volpe and Co., Inc., case payment, if the land were damaged or (b) have it
discussed below, right to have the restriction automatically removed.
10.11 THE S. VOLPE AND CO., INC., The Commissioner could (c) later take such restric-
CASE tion by eminent domain without a local veto. A
similar bill barely failed of final approval in 1967.
The lands involved exceeds 300,000 acres or 7% of
A 1965 Massachusetts Supreme Court Case in- the land of the State, according to a careful survey
volving salt marshes raised the constitutional issue made in 1966. Commissions should "bird-dog" ap-
(5), Under the 1963 Coastal Marsh Act (6) (not the propriatc lands of ten or more acres along inter-town
Coastal Wetlands Act), the Commissioner had au- streams for the attention of the Commissioner, if the
thority to prohibit an owner from "removing, filling bill becomes law. They should continue to restrict or
or dredging any bank, flat, marsh, meadow or swamp purchase or otherwise acquire all flood plains and all
bordering on coastal waters. . . ."The Commissioner marshes useful for conservation purposes.
issued an order prohibiting filling. There was good
evidence that fishery resources would be damaged if 10.13 SALT MARSHES,
the marsh were filled. Court said in part: THE JONES ACT
"The question is analogous to that which arises
when the validity of a zoning ordinance or by-law (For Administration, see Sec. 8.09, for text, See.
is considered. Whether there is a reasonable in- 12.07.) Salt marshes are those from mean high water
terfcrence with a landowner's rights undertaken to extreme high water. Good conservationists love
in the exercise of the police power for the public salt marshes. in 1963 the Jones Act was adopted to
benefit or it deprivation of private property with- protect marine fisheries(6). The selectmen or the city
out compensation often depends on the facts of licensing authority hold hearings on applications to
the particular case. (Authorities) This Court has remove, fill or dredge and make recommendations.
often held that on the facts presented in a given Enforcement is by the Department of Public Works
case a regulation achieves tit) valid public benefit or the Department of Natural Resources, depending
and also so restricts the use of property as to on which interest is affected.
constitute it taking without compensation."
The Court discussed on a New Jersey case (7) and 10.14 SALT MARSHES,
it Connecticut case (8) in both of which "flood plain THE COASTAL WETLANDS ACT
districts" were held unconstitutional. Its conclusion
was: (See statute at Sec. 12.06.)
"A crucial issue is whether, notwithstanding The 1965 Coastal Wetlands Act (9) provides that
' the meritorious character of the regulation, there the Commissioner may make orders, "regulating, res-
37
tricting or prohibiting dredging, filling, removing or Since 1965, an act proposed by Rep. Francis
otherwise altering, or polluting coastal wetlands." He Hatch requires one intending "to remove, fill or I
must hold a hearing in the locality first. After adop- dredge any bank, flat, marsh, meadow or swamp
tion of an order, it is filed in the Registry of Deeds bordering on any inland waters" to file a notice and
and copies are mailed to the landowners. A fine or have a public hearing. The selectmen then make
injuction is provided for violations. Within 90 days recommendations to both the Departments of Natural
the landowner may petition the Superior Court "to Resources and Public Works. Public Works imposes
determine whether such order so restricts the use of conditions if the work violates the interests protected
his property as to deprive him of the practical uses by the Division of Waterways over streams. The
thereof." If the Court so finds, it may enter an order Department of Natural Resources imposes conditions
that such restriction does not apply to the petitioner. if the work harms "public or private water supply
No other kind of relief is ordered. After such a or. . .flood control." Many dumps have been closed
finding, the Department may take the restriction or by some of the 660 orders under this act. The Hatch
easement by eminent domain. There are some ex- Act permits barn doors to be locked just before
emptions such as MDC land and mosquito control certain horses are stolen -but gives no permanent
projects. It is expected that few owners will insist on rights to the public over the lands involved.The State
payment. Should an owner not want to retain title to can do a more comprehensive job under the proposed
a salt marsh subject to an order of restrictions or Inland Wetlands Act (Sec. 10.12).
subject to the taking of a restriction against building,
the town Commission should accept the fee as a gift, 10.17 THE SHADE TREE ACT
and thus take the marsh off the tax bill of the owner.
The restriction by itself will rarely allow public ac- All trees within a public way are public shade trees
cess. (14). The tree warden maintains them and trees in
10.15 SALT MARSHES LOCAL ACTION public parks or"open places under the jurisdiction of
park commissioners" if the latter request. No such
Since ancient times, every citizen has had a right trees may be cut, trimmed or removed by any person
to go on land between low water and high water for without the permission of the tree warden "even if he
fishing, fowling and navigation (when the tide is in). be the owner of fee in the land in which such tree is
The Army Engineers and the Division of Waterways situated." Any person injured by action of the tree
has extensive jurisdiction over harbors and the filling warden may recover damages under the eminent do-
of tide water land (11, 12). Mean high water line is main statute. Towns may appropriate money to plant
often below what conservationists consider a salt shade trees in public ways or upon "adjoining
marsh. The later may be flooded only twice a month land, at a distance not exceeding 20 feet from said
or perhaps only several times a year. public ways, for the purpose of improving, protect-
State action should be expected only in large, un- ing, shading or ornamenting the same; provided that
polluted marshes. Municipalities should keep a lively the written consent of the owner shall be obtained"
interest in tidelands and salt marshes and regulate Criminal penalties are enacted for placing signs on
what they have not yet acquired. Marshes (1) protect trees or defacing them.
the upland by absorbing the strength of storms, (2)
provide the food for shellfish and half the basis of the 10.18 DEFACING NATURAL SCENERY
food chain supporting commercial and sport fisheries,
(3) shelter and support birds and (4) provide recrea- A conscientious Commission should spend some of
tion. Flood plain zoning action seems warranted at its leisure time in tearing down unlawful signs and
least for reasons I and 2. Acquisition is best if painting out initials on attractive ledges besides
reasons 3 or 4 are paramount. (See sample by-law, roads. It can do so with a clear conscience under Ch.
Sec. 13.06.) A Duxbury salt marsh by-law has been 266, Sec. 126.
upheld (13). A hundred years ago when salt hay was "Whoever paints, or puts upon, or in any man-
valuable salt marshes were staked out but the stakes ner affixes to, any fence, structure, pole, rock or
have disappeared so titles are murky. Eminent do- other object which is the property of another,
main of an entire marsh is the best protection. whether within or without the limits of the high-
way, any words, device, trademark, advertise-
10.16 THE HATCH ACT ment or notice which is not required by law to be
(For Administration, see Sec. 8.08, for Text see posted thereon, without first obtaining the written
Sec. 12.05 (10). consent of the owner or tenant of such property, '
38
shall, upon complaint of such owner, or of his 10.22 NUISANCE
1 tenant, or of any municipal or public officier, be
punished by a fine of not more than ten dollars. In addition to the public rights which have been
Any word, device, trademark, advertisement or discussed herein there is the common law relating to
notice which has been painted, put up or fixed nuisance. On a bill in equity brought by some or all
within the limits of a highway in violation of this of the abutters who are directly affected, any condi-
section shall be considered a public nuisance,and tion which is clearly objectionable may be abated by
may be forthwith removed or obliterated and a court order as a private nuisance if it affects only
abated by any person." one or as a public nuisance if it affects a number of
10.19 JUNK CARS people.
Ch. 90, Sec. 22-b reads:
"Whoever abandons a motor vehicle on any 10.23 MOSQUITO DISTRICTS
public or private way or upon any property other
than his own without the permission of the owner A recent act (16) permits a mosquito district to
or lessee of said property shall be punished by a determine that an area will produce mosquitoes and
fine of not less than one hundred nor more than is a public nuisance. The district may abate such
five hundred dollars. A conviction of a violation nuisance and may maintain such works as may be
of this section shall be reported forthwith by the necessary to prevent its recurrence. This is an unu-
court to the registrar, who may revoke for a sual approach and a Commission should keep an eye
period not exceeding three months the license of out for mosquito districts ready to "abate" beneficial
the person so convicted, and no appeal, motion marshes or swamps!
for new trial or exceptions shall operate to stay
the revocation of the license."
G.L. Ch. 40, Sec. 5 (59) permits appropriation of 10.24 AUTHORITIES CITED IN
town monies "for towing motor vehicles abandoned CHAPTER 10
' on any private way or private property."
(1) Aronson v. Town of Sharon, 346 Mass. 598
10.20 POLLUTION CONTROL ACTS (2) Noonan v. Moulton, 348 Mass. 633
(See Secs. 8.12, 8.13) At least Hingham and Co- (3) Sylvania Electric Products Inc. v. City of
haslet have special acts(15) providing a three-month Newton, 344Mass. 428
sentence in the pokey for a poltroon who pollutes any (4) Vantelas v. Water Resources Commission,
153 Ad. 2nd 822
natural water course in the town or puts or maintains (5) Commissioner of Natural Resources v. S.
any obstruction therein. Under those acts there is a Volpe and Co., Inc., 349 Mass. 104
wide power in the selectmen to improve brooks,
streams and water courses, to take lands by eminent {6) G.L. Chapter 130, Section 27-H
(7) Morris County Lund Improvement Co. v.
domain and to assess betterments therefor. See also
Ch. 130, Sec. 74. Township of Pasippany— Troy Hills, 40 N.J. 539
(8) Dooley v. Town Planning and Zoning Com-
10.21 SOIL AND GRAVEL BY-LAWS mission, 151 Conn. 304
(9) Acts of 1965, Chapter 768, G.L. Ch. 130,
A soil and gravel removal by-law should be adopt- See. 40
ed in every suburban town. The Commission should (10) G.L. Ch. 131,Sec. 117C, Acts of 1965, Ch.
urge the planning board to favor up-to-date regula- 220.
tions either under the Zoning Act (Ch. 40, Sec. 2)or (1 1) G.L. Chapter 90, Sec. 30
as a by-law (Ch. 40, Sec. 21 (17). The considerations (12) G.L. Ch, 90, Sec. 30-A, Ch. 91, Secs. 20,
proper to the planning board—the amount of traffic, 21
annoyance to the neighbors, dust and the like—are (13) McGibbon v. Board of Appeals of Town of
not proper to the Commission which, however, Duxbury, 347 Mass. 690, 200 N.E. 2d 254 (1964)
should speak at the planning board hearing in regard (14) G.L. Ch. 87, Secs. 1-13
to drainage of the area, replacement of topsoil after (15) Acts of 1933, Chs. 19, 20
the removal operation and the effects on the water (16) Acts of 1965, Ch. 699 amending G.L. Ch.
' table and on pollution. 262, Sec. 5-13
39
Chapter 11 Private Conservation Corporations, Trusts and Clubs
i
11.01 INTRODUCTION port to the Attorney General on form 12.
Any group soliciting funds from non-members of
Commissions and Districts are branches of govern- over $5,000 per year must first obtain a certificate of
ment, although both are composed of amateur con- registration from the Division of Public Charities in
servationists. This Handbook is about them and their the Attorney General's Office. (Ch. 68, Secs. 18-31;
problems but a few pages may fruitfully be devoted Ch. 12, Secs. 8-8J).
to the other amateur conservationists working with
private groups. Many are committees of civic or 11.03 CREATING A CORPORATE
fraternal organizations. Others are clubs exclusively LAND TRUST
for conservation purposes. The comparison at Sec.
1 1.05, for simplicity's sake, deals with corporations, Although the filing fees and red tape are greater
trusts or foundations so organized that they may own for a corporation, a corporation provides an entity
land in perpetuity and have tax exempt status. with unlimited membership, which may own large
Officers and members of all groups may, for $5.00 amounts of property and may exist forever (with
each per year, become individual members of the possible reincorporation every 50 years if it "deals"
Association. Their group will, without extra charge, in real estate).
be listed as an associate member, each without vote. One of the better ones, the Wellesley Conservation
Council, Inc., has by-laws which read, in part, as
11.02 WHAT LEGAL ENTITY IS follows:
NEEDED "The purposes of the corporation shall be the
protection, preservation and conservation of na-
If the members plan only to discuss and learn tural objects and areas, including parks, park
about conservation or to assist the local commission, lands, playgrounds, forests and streams, and all
an unincorporated club or association is adequate. it other undeveloped areas and wild life for the I
should make an annual report to the Attorney Gener- enjoyment and benefit of the general public,
al on form 12 by July Ist or after its annual meeting. through scientific study,education and dissemina-
Such a group should never take title to land. tion of information and through the acquisition
A partnership is most inappropriate if land is to be and improvement of such lands and objects for
held, such purposes and in connection therewith:
A trust is a simple and cheap legal entity to es- . To solicit and receive by gift, or acquire by
tablish to hold land. The author once drew a trust to purchase, lease, exchange or otherwise, such
hold title to a stretch of beach. Its five trustees had to funds and real or personal property as may be
reside in the area containing the beach. They made appropriate to carry out the purposes of the cor-
rules but denied personal liability. If taxes were as- poration; to hold, operate, use, develop, lease,
sessed, the beach would be conveyed to the town. A sell, assign or otherwise dispose of such real and
membership association was created to administer personal property;. . . ."
the beach but title remained in the trustees. The trust Then follow standard clauses as to dealing with
indenture and replacements of trustees have been property, general powers, disclaimer of propaganda
recorded in the registry of deeds. objectives, exclusion of private benefits and a gift, on
A public trust is composed only of the named dissolution, of its property to the Commonwealth for
trustees unless, like "The Trustees of Reservations," park purposes.
it is really a corporation. Corporations have unlimit-
ed membership, officers and a governing board. A 11.04 FUNCTIONS OF A LAND TRUST
trust can be tax exempt and may have a dues paying
association, with a similar name, as its action arm. A A local land trust usually holds meetings for its
"foundation" usually is full of money, not members. members, meetings for the public, acquires land or
A "council" is often but not always a collection of easements, publishes pamphlets, conducts research,
smaller units. All are tailed "land trusts" here for contests and events, works with the Commission and
convenience. "Trustees also should file an annual re- works with rivershed or regional groups.
40
11.05 COMPARISON OF POWERS — b. "Think of the whole town, not of just one
' COMMISSIONS AND LAND part of it.
TRUSTS c. Are subject to the selectmen (for appoint-
ment) and town meeting (for funds).
I. A Land Trust can do the following things b. Land Trusts get support from members and
which a Commission cannot do: contributors because:
a. Commissions are municipal officers, seven a. Some donors still fear town action although
maxium; a Land Trust can have five hundred unnecessarily (see Sec. 5.05).
people. b. Members have more control over land the
b. A Land Trust can control land along a Land Trust acquires than they have over Com-
whole stream or valley; a Commission is confined mission land as voters.
to its town.
c. A Land Trust is better at town meeting, 11.06 SUMMARY OF POWERS
being more numerous.
d. It may act quickly and can contract for a A Commission should have the backing of"associ-
number of years ate members" (Sec. 3.09), or a membership group,
2. Only Commissions can: whether it separate club or part of a Land Trust. It'
a. Buy land with town funds. the latter also acquires land there should be no
b. Use town forces and money to maintain jealousy since there is plenty of acquisition work for
conservation land. both and every avenue to obtain gifts should be kept
c. Participate in the State 50-50 Self-Help plan wide open. The following is it list of associations and
or the Federal programs of matching grants. land trusts known to be active in Massachusetts.
d. Have other town land transferred to its con- Corrections and additions to this list will be made in
trol. the Supplements.
e. Use eminent domain (including land of a
Land "Trust) if the owner will not sell. 11.07 1{..IS'f OF CONSEhiVA'I'IO�
' f. A city or town cannot take land devoted to GROUPS IN MASSACHUSEI"l'S
conservation by eminent domain or transfer its (Asterisks identify members of the Massachusetts
use over the Commission's objection. Conservation Council.)
3. Both Land Trusts and Commissions can: ACTON CONSERVATION TRUST:
a. Accept gifts of money. Mrs. Mary Donald, 42 -Taylor Road, W.
b. Accept gifts of land in trust or otherwise. Acton.
c. Build up a conservation fund. AMHERST VILLAGE IMPROVEMENT SOCIETY:
d. Charge moderate fees in proper circum- Mrs. Norman J. MacCloud, S.E. Street,
stances. RFD# 1, So. Amherst.
e. Work with town forest committees, park ANDOVER VILLAGE IMPROVEMENT SOCIETY:
and playground commissions, planning boards, to Claus O. Dengler, Pres., 5 Lincoln Circle,
acquire or protect land. Andover
4. Neither a Land Trust or a Commission can:
a. Exclude the general public if any access is APPALACHIAN MOUNTAIN CLUB:
a C. Francis Belcher, Exec. Dir.,5 Joy Street,
allowed. (A public charitable trust cannot dis-
criminate in favor of residents of a town. A Boston
Commission can charge less to residents for facil- BEAVER BROOK VALLEY PROJECT
ities built with tax monies.) COMMITTEE:
b. Prevent taking of its land by eminent do- George C. KrUSetl, Depot Road, Acton
main by the State. BERKSHIRE NATURAL RESOURCE
c. Be required to pay taxes (but the Land COUNCIL:
Trust may have to prove exemption as to each Exec. Director, George S. Wislocki, 100
parcel and file forms). (Sec. 7.07) North St., Pittsfield
5. Commissions get support from the voters in- BERKSHIRE REGIONAL PLANNING
eluding money because they: COMMISSION:
a. Are it continuing body which cannot dis- Mr. Karl Hekler, Director, Court House,
' band. Pittsfield, 01201
41
BEVERLY-GARDEN CITY CONSERVATION ESSEX COUNTY GREEN BELT
GROUP: ASSOCIATION:
Mrs. Philip C. Parsons, 13 King Terrace, John Pierce, Pres, 116 Newbury St., Bos-
Beverly ton
BEVERLY LAND CONSERVATION TRUST: FRANKLIN COUNTY DEPARTMENT
Robert Livermore Jr., Beaver Pond, Beverly OF PLANNING:
CANTON PLANTATIONS: Mr. Donald Caven, Court House, Green-
H. Brooks Beck, Secretary; c/o Hill & field,01301
Barlow, 225 Franklin St., Boston, FRIENDS OF BROOKLINE CONSERVATION:
Massachusetts Mrs. C. T. Cohen, Pres. 24 Crafts Road,
CAPE COD PLANNING AND ECONOMIC Chestnut Hill
DEVELOPMENT COMMISSION: GARDEN CLUB FEDERATION
Mr. E. Fletcher Davis, Director, 365 Main OF MASSACHUSETTS:
St., Hyannis, 02601 Secretary, Mrs. Warren Benninghof, 300
CENTRAL MASSACHUSETTS REGIONAL Massachusetts Ave., Boston
PLANNING COMMISSION: GRAFTON FOREST ASSOCIATION:
Mr. David Kellogg, Director, 70 Elm Mr. Calvert W. Smith, 36 Pleasant St.,
Street, Worcester Grafton
CENTRAL MERRIMACK VALLEY GREATER LOWELL AREA REGIONAL
PLANNING COMMISSION: PLANNING COMMISSION:
Mr. Richard Young, Director, 477 Essex Mr. Harold Kramer, Director, 73 East
St., Lawrence, 01840 Merrimack St., Lowell
CHARLES RIVER WATERSHED ASSOCIATION: HINGHAM FRIENDS OF CONSERVATION:
Frank E. Whitmarsh, President, 460 Main Thomas Murphy, 324 Main Street, Hing-
St., Walpole ham
CITIZENS FOR LEXINGTON CONSERVATION: HOUSATONIC WATERSHED ASSOCIATION: '
Mrs. John Ross, Pres., 21 Longfellow Pres. Mrs. Bernard H. Flood, Lenox,
Road, Lexington Massachusetts
COHASSET LAND TRUST: 1ZAAK WALTON LEAGUE:
Edward B. Long, Chairman, 31 Nichols Massachusetts State President, Mr. Rich-
Road, Cohasset and LeBoeuf, 57 Coolidge Ave., Ludlow
CONCORD LAND CONSERVATION TRUST: LINCOLN LAND CONSERVATION TRUST:
Thomas Flint, Simon Willard Road, Con- William M. Preston, Weston Road, Lin-
cord coln
CONNECTICUT RIVER WATERSHED COUNCIL: LITTLETON CONSERVATION TRUST:
Christopher Percy, P.O. Box 89,497 Main Stanley F. Conant, Pres., 28 Shattuck
St., Greenfield St., Littleton
CONSERVATION LAW FOUNDATION: LOWER PIONEER VALLEY REGIONAL
Exec. Dir. Benjamin Nason, I Court St., PLANNING COMMISSION:
Boston Mr. K. M. Munnich, Director, 1499 Me-
COUNCIL OF SPORTSMEN'S CLUBS, INC.: morial Ave., West Springfield, Massa-
c/o Wilfred R. Svenson, 220 N. Main chusetts,01089
St., Andover MANCHESTER CONSERVATION TRUST:
c/o Edward Govoni, Pres., 14 Dean St., George G. Loring, Treas., 85 Bridge St.,
Fairhaven Manchester
ELBANOBSCOT FOUNDATION, INC.: MASSACHUSETTS ASSOCIATION OF
Wier Hill Road, Sudbury CONSERVATION DISTRICTS:
Pres. Murray M. Coran, 46 Lincoln St., Horace Clark, 450 Maple St., Hathorne
Belmont (President)
42
MASSACHUSETTS AUDUBON SOCIETY: MASSACHUSETTS STATE GRANGE:
IAllen H. Morgan, Executive Director, J. Albert Torrey, 757 W. Sagamore, E.
Drumlin Farm, South Great Road, Lin- Sandwich
coin Frank H. Nelson Sr., 82 Kennebunk St.,
MASSACHUSETTS CONSERVATION Athol—(Master)
COUNCIL: MASSACHUSETTS UNIVERSITY OF
Conrad Chapman, Pres. COOPERATIVE EXTENSION:—Amherst
Benjamin Nason, Vice-Chairman, I Court Dr. A. A. Spielman, Dean, College of
St., Boston Agriculture
MASSACHUSETTS COOPERATIVE MASSACHUSETTS ZOOLOGICAL SOCIETY:
WILDLIFE RESEARCH UNIT: G. G. Van Wart, Director, Trailside Mu-
c/o William G. Sheldon, U. of Mass., seum, 1904 Canton Avenue, Milton
Amherst METROPOLITAN AREA PLANNING
MASSACHUSETTS FEDERATION OF COUNCIL:
BUSINESS AND PROFESSIONAL Mr. Robert Davidson, Executive Director,
WOMEN'S CLUBS: 44 School Street, Boston, Massachusetts
Pres., Mrs. Marion E. Scott, 19 Hillside 02108
Avenue,Turners Falls, Massachusetts MONTACHUSETTS REGIONAL PLANNING
MASSACHUSETTS FEDERATION OF AGENCY: (Proposed)
PLANNING BOARDS: William A. Mason Jr., Chairman, 1790
c/o Joseph Magaldi, 65 Wayne Street, Massachusetts Avenue, Lunenburg
Braintree MUSEUM OF SCIENCE:
MASSACHUSETTS WILDLIFE Science Park, Boston — Bradford Wash-
FEDERATION: burn, Director
c/o Chester Spencer, I 1 Cleveland St., NANTUCKET CONSERVATION FOUNDATION,
Arlington INC.
MASSACHUSETTS FOREST AND Pres. Roy Larson, Siasconset, Nantucket
PARK ASSOCIATION: NATICK, CONSERVATION ASSOCIATION OF:
Benjamin Nason, Exec. Dir., 1 Court St., Mrs. Donald Messing, 1000 Winter St.,
Boston Natick
MASSACHUSETTS HORTICULTURAL NATIONAL WILDLIFE FEDERATION:
SOCIETY: 1412 Sixteenth St., N.W., Washington,
Carleton B. Lees, Exec. Dir., 300 Massa- D. C.
chusetts Ave., Boston NATURAL RESOURCES TRUST OF
MASSACHUSETTS LEAGUE OF EASTON:
WOMEN.VOTERS: Mrs. Edwin C.White, Pres.,539 Bay Road,
120 Boylston St., Boston South Easton
Mrs. Roger Walke, Jr., 114 Randolph NATURE CONSERVANCY:
Ave., Milton Dr. George C. Shattuck, 25 Shattuck
MASSACHUSETTS ROADSIDE COUNCIL: St., Boston
Mrs. E. Sohier Welch, 20 Louisburg NEPONSET CONSERVATION
Square, Boston ASSOCIATION:
MASSACHUSETTS SOCIETY FOR PREVENTION c/o John Cronin, President, 30 Thomp-
OF CRUELTY TO ANIMALS: son Lane, Milton
180 Longwood Avenue, Boston NEPONSET VALLEY TRUST:
MASSACHUSETTS STATE FEDERATION Chairman, LeBaron R. Briggs, 20 Car-
OF WOMEN'S CLUBS: penter Road, Walpole
155.Newbury Street, Boston NEW ENGLAND BIRD BANDING
Pres. Mrs. Clarence F. Clark, Main St., ASSOCIATION:
Sunderland Richard J. Eaton, Bedford Road, Lincoln
Center
43
NEW ENGLAND FARM AND GARDEN SCITUATE LAND CONSERVATION
ASSOCIATION INC.: TRUST:
39 Newbury St., Boston Chairman, Edward Ryan, 400 Country
Mrs. Miles N. Clair, Pres., Dorset Road, Way
Waban SHERBORN FOREST AND TRAIL
NEW ENGLAND FORESTRY FOUNDATION: ASSOCIATION:
Sec.-Treas.John T.Hemenway, 1 Court St., Mrs. John C. Perry, 54 Prospect St.
Boston SOUTHEASTERN MASSACHUSETTS REGIONAL
NEW ENGLAND WILDFLOWER PLANNING COMMISSION:
PRESERVATION SOCIETY, INC.: Mr. William Barbour, Director, 123 North
300 Massachusetts Avenue, Boston Main Street, Fall River,02720
Bigelow Greene, Exec. Director SOUTH HADLEY CONSERVATION
NEW HAMPSHIRE SOCIETY FOR THE SOCIETY:
PROTECTION OF FORESTS: Pres. Richard L. Johnson, President 3
5 South State Street, Concord, New Woodbridge St.
Hampshire SUDBURY VALLEY TRUSTEES:
NORTH ANDOVER VILLAGE Allen Morgan, 114 Cochituate Road,
IMPROVEMENT ASSOCIATION: Wayland
Pres. Douglas A. Chandler, 369 Gr. TRUSTEES OF RESERVATIONS:
Pond Road, N. Andover Gordon- Abbott, Exec. Dir., 224 Adams
NORFOLK COUNTY EXTENSION St., Milton
SERVICE: VINEYARD CONSERVATION SOCIETY,
Joseph O'Donnell, Ext. Agent, 460 Main INC.:
St., Walpole, Director, Mr. Thomas Robert Woodruff, Director, Vineyard
McGarr Haven
OLD COLONY PLANNING COUNCIL: WARREN RURAL IMPROVEMENT
Mr. Alvin Jack Simms, Exec. Dir. ASSOCIATION:
Old Colony Planning Council, 27 Bel- Warren Tuesday Club
mont St., Brockton C. W. WELCH MEMORIAL FISH AND
OPEN SPACE ACTION COMMITTEE: GAME PRESERVE, INC.:
Richard Pough, Treas., 205 E. 42nd St., Roy Robinson, Pres., I07 School St.,
New York City Stoughton
PARKER RIVER WATERSHED WELLESLEY CONSERVATION COUNCIL,
COUNCIL: INC.:
Charles E.Blanchard,210 East St.,George- c/o Franklin Sanders, 126 Abbott
town Road, Wellesley
PARKER, WENDELL PHILLIPS WESTFIELD RIVER WATERSHED
NATURE TRAINING SCHOOL: ASSOCIATION, INC.:
Russell Stanhope, , Director, Worcester Richard Waite, Exec. Dir., P.O. Box 232,
Science Museums, 21 Cedar St., Huntington
Worcester WESTON FOREST AND TRAIL
READING GREENBELT ASSOCIATION: ASSOCIATION:
A. Lloyd Daord, 70 Howard Street Mr. K. Batchelder, 81 Chestnut Street,
RHODE ISLAND ASSOCIATION OF Weston
CONSERVATION COMMISSION: WEYMOUTH JR. CONSERVATION
84 Ferris Avenue, Rumford, Rhode COMMISSION:
Island c/o Miss Mary Toomey, 1615 Commer-
SALT POND AREAS BIRD cial St., Weymouth
SANCTUARIES, INC.: Falmouth
Ermine Lovell, Pres., 231 Main Street,
Falmouth '
44
11.08 FOUR PROFESSIONAL B. THE MASSACHUSETTS FOREST AND
f ORGANIZATIONS PARK ASSOCIATION, 1 Court Street, Boston, RI
2-2553, helps town forest committees and advises on
A. MASSACHUSETTS AUDUBON SOCIE- forest practices. Much of its work is devoted to Furth-
TY, Drumlin Farm, Lincoln, 01773, CL 9-9500, is ering legislation of interest to conservationists. Per-
the largest and best state Audubon Society and a iodic bulletins are sent to a large mailing list. Benja-
tower of strength in conservation. min G. Nason, Esq., its Executive Director, is also
Allen H. Morgan, Executive Vice President, and active in the Conservation Law Foundation which,
seven or eight professionals, in addition to their other within a limited budget, assists with legal advice in
duties, run a "Conservation Services Center." If a selected conservation problems,
project is approved, a writer, a public relations ex-
pert, a field representative, an artist and a research C. THE TRUSTEES OF RESERVATION, 244
associate will prepare pamphlets, radio features, Adams Street, Milton, Massachusetts, 698-2206. is
news releases, letters, visual displays and will advise the oldest and largest holder of natural areas with
on a public relations campaign. This service assists some 37 reservations in all parts of the state. In
Commissions to sell large projects to the voters. As- 1967, Executive Director Gordon Abbott, Jr., raised
sistance may also be maintained on routine reports funds for the purchase of "World's End" in Hing-
and public information matters. ham, a most choice reservation.
Mrs. Roger M. Burke, an outstanding volunteer,
keeps a list of each member of a Commission on D. BERKSHIRE NATURAL RESOURCE
addressograph plates. Send to her, c/o Massachusetts COUNCIL, 100 North Street, Pittsfield, 01201,
Audubon Society, South Lincoln, or phone 413-499-0596. Under George S. Wislocki, Executive
259-8575, the name and address of each new mem- Director, this new council keeps things humming in
bcr and each member who has resigned. the Berkshires.
11.09 130OKS WORTH PURCHASING The American Conservation Association, 50
Rockefeller Plaza, New York, New York 10020
Andrew J. W. Scheffey, of the faculty of Williams has published "Cluster Development" by William
College made a general study of conservation com- H. Whyte ($3.00).
missions in Massachusetts under a Ford Foundation
grant. His interesting, 100 plus page book, entitled
"Landscape and Community, Conservation Com- Inquire of the Division as to Stephen F. Ells' new
missions in Massachusetts" can be purchased from treatise on all laws relating to natural resources in
the Massachusetts Audubon Society (see above) for Massachusetts soon to come off the press.
$3.00.
The Open Space Action Institute, 145 East 52nd The most scholarly work is "Private Approaches
Street, New York, New York 10022, has published to the Preservation of Open Land", 121 pp, pub-
two excellent books of interest particularly to private lisped by the Conservation and Research Founda-
charitable corporations, "Stewardship" and "Chal- tion, by Russell L. Brenneman, Esq. of Connecticut.
lenge of the Land" both by its Executive Vice-Presi- ($10.00 to Mrs. John Morrill, Agent, 13 Woodsea
dent,Charles E. Little. ($3.00 each) Place, Waterford, Connecticut.)
1
45
Chapter 12 Statutes
a
12.01 MASSACHUSETTS three years, and so arranged that the terms of
CONSERVATION ACT approximately one-third of the members will ex-
pire each year, and their successors shall be ap-
Ch. 40, Sec. 8-C, as amended by Acts. of 1961, pointed for terms of three years each. Any mem-
Ch. 258, Acts of 1965, Ch. 769, and Ch. 885, Acts ber of a commission so appointed may, after a
of 1967 reads as follows: public hearing, if requested, be removed for cause
"A city or town which accepts this section may by the appointing authority. A vacancy occurring
establish a conservation commission, hereinafter otherwise than by expiration of a term shall in a
called the commission, for the promotion and city be filled for the unexpired term in the same
development of the natural resources and for the manner as an original appointment and in a town
protection of the watershed resources of said city in the manner provided in section eleven of chap-
or town. Such commission shall conduct research- ter forty-one. Said commission may receive gifts
es into its local land areas and shall seek to of property, both real and personal, in the name
coordinate the activities of unofficial bodies or- of the city or town, subject to the approval of the
ganized for similar purposes, and may advertise, city council in a city or the selectmen in a town,
prepare, print and distribute books, maps, charts, such gifts to be managed and controlled by the
plans and pamphlets which in its judgment it commission for the purposes of this section. Said
deems necessary for its work. It shall keep an commission may acquire by gift, purchase, grant,
index of all open areas within the city or town, as bequest, devise, lease or otherwise the fee in such
the case may be, with the plan of obtaining infor- land or water rights, or any lesser interest, devel-
mation pertinent to proper utilization of such opment right, easement, covenant, or other con-
open areas, including lands owned by the Com- tractual right including conveyances on condi-
monwealth or lands owned by a city or town. It tions or with limitations or reversions, as may be
shall keep an index of all open marsh lands, necessary to acquire, maintain, improve, protect,
swamps and all other wet lands in a like manner, limit the future use of or otherwise conserve and '
and may recommend to the city council or select- properly utilize open spaces and other land and
men and, subject to the approval of the city water areas within their city or town and shall
council or selectmen, to the department of natur- manage and control the same. For the purpose of
al resources and to the state reclamation board, a this section a city or town may, upon the written
program for the better promotion, development request of the commission, take by eminent do-
or utilization of all such areas. It shall keep main under chapter seventy-nine, the fee or any
accurate records of its meetings and actions and lesser interest in any land or waters located in
shall file an annual report which shall be printed such city or town, provided such taking has first
in the case of towns in the annual town report. been approved by a two-thirds vote of the city
The Commission may appoint such clerks and council or a two-thirds vote of an annual or
other employees as it may from time to time special town meeting, which land and waters
require. The Commission shall consist of not less shall thereupon be under the jurisdiction and
than three nor more than seven members. in control of the commission. The commission may
cities the members shall be appointed by the adopt rules and regulations governing the use of
major, subject to the provisions of the city char- land and waters under its control, and prescribe
ter,except that in cities having or operating under penalties, not exceeding a fine of one hundred
a Plan D or Plan E form of city charter, said dollars, for any violation therof. No action taken
appointments shall be by the city manager, sub- under this section shall affect the power and
ject to the provisions of the charter; and in towns duties of the state reclamation board or any mos-
they shall be appointed by the selectmen, except- quito control or other project operating under or
ing towns having a manager form of government, authorized by chapter two hundred and fifty-two,
in which town appointments shall be made by the or restrict any established public access. Lands
town manager, subject to the approval of the se- used for farming or agriculture, as defined in
lectmen. When a Commission is first established, section one A of Ch. 128, shall not be taken by
terms of the members shall be for one, two or eminent domain under the authority of this sec- '
46
tion. Upon a like vote, a city or town may expend suitable public outdoor facilities as described in Secs.
` monies in the fund, if any, established under the 2B and 2D. He may, from funds appropriated to
1 provisions of clause (51) of section five for the carry out the provisions of Sec. 3, reimburse any such
purpose of paying, in whole or in part, any dam- city or town for any money expended by it in es-
ages for which such city or town may be liable by tablishing an approved project under said program in
reason of any such taking. such amount as he shall determine to be equitable in
consideration of anticipated benefits from such pro-
12.02 MASSACHUSETTS ject, but in no event shall the amount of such reim-
CONSTITUTION bursement exceed fifty percent of the cost of such
project. No reimbursement shall be made hereunder
"Art. XLIX. The conservation, development and to a city or town unless a project application is filed
utilization of agricultural, mineral, forest, water and by such city or town with the Commissioner setting
other natural resources of the Commonwealth are forth such plans and information as the Commission-
public uses, and the general court shall have power to er may require and approved by him, nor until such
provide for the taking, upon payment of just com- city or town shall have appropriated, transferred
prensation therefor, of lands and easements or inter- from available funds or have voted to expend from its
ests therein, including water and mineral rights, for conservation, fund, under clause of Sec. 5 of Ch. 40,
the purpose of securing and promoting the proper an amount equal to the total cost of the project, nor
conservation, development, utilization and control until the project has been completed to the satisfac-
therof and to enact legislation necessary or expedient tion of the Commissioner, in accordance with said
therefor." approved plans. Any reimbursement received by a
city or town under this section shall be applied to the
12.03 CONSERVATION FUND ACT payment of indebtedness, if any, incurred in acquir-
ing land for such conservation project.
G.L. Ch. 40, Sec. 5 Cities and towns may expend Section 2B It is hereby declared to be the policy of
money: the Commonwealth that all such sites acquired or
I (51) For the establishment and maintenance of a developed by the Commissioner shall in so far as
conservation commission. In addition a city or town practicable be preserved in their natural state; that
may appropriate money in any year to a conservation they shall be in so far as possible collectively self-
fund of which the treasurer shall be custodian. He supporting; and that no commercial activities except
may deposit or invest the proceeds of said fund in those essential to the quiet enjoyment of the facilities
savings banks, trust companies incorporated under by the people shall be permitted.
the laws of the Commonwealth, banking companies Section 2D (1) to acquire, plan, construct, main-
incorporated under the laws of the Commonwealth tain and operate public recreational facilities, includ-
which are members of the Federal Deposit Corpora- ing roads, areas for parking, picnicking and camping,
tion, or National banks, or invest it in paid-up shares provisions for swimming, wading, boating, outdoor
and accounts of and in co-operative banks or in games, winter sports, horseback riding, bicycling and
shares of savings and loan associations or in shares of hiking trails, nature study, rest areas, outlooks, com-
federal savings and loan associations doing business fort stations, food accommodations and such other
in the Commonwealth, and any income therefrom facilities as the commissioner deems necessary and
shall be credited to the fund. Monies in the fund may desirable and consistent with the policy of the Com-
be expended by said Commission for any purpose, monwealth, as set forth in Sec. 2B"
other than a taking by eminent domain, authorized
by Sec. 8C. 12.05 THE HATCH ACT
12.04 MASSACHUSETTS G.L. Ch. 1.31, Sec. 40 (Acts 1965, Ch. 220). No
"SELF-HELP" ACT person shall remove, fill or dredge any bank, flat,
marsh, meadow or swamp bordering on any inland
G.L. Ch. 132-A, Sec. I I waters without filing written notice of his intention to
The Commissioner shall establish a program to so remove, fill or dredge, including such plans as may
assist the cities and towns, which have established be necessary to describe such proposed activity, with
conservation commissions under section 8C of Ch. the board of selectmen in a town or the mayor of a
' 40, in acquiring land and in planning or designing city, and with the state departments of public works
47
and natural resources. Such notice shall be sent by tidal action or coastal storm flowage and such contig-
registered mail at least thirty days prior to any such uous land as the commissioner reasonably deems I
removing, filling or dredging. The selectmen or may- necessary to affect by any such order in carrying out
or, as the case may be, shall hold a public hearing on the purposes of this section.
said proposal within ten days of the receipt of said The commissioner shall,before adopting, amend-
notice, and shall notify by mail the person intending ing, modifying or repealing any such order, hold a
to do such removing, filling or dredging, and the said public hearing theron in the municipality in which
state departments of the time and place of said the coastal wetlands to be affected are located,giving
hearing. The selectmen or mayor may recommend notice thereof to the state reclamation board, the de-
such protective measures as may protect the public partment of public works and each assessed owner of
interest. The department of public works shall deter- such wetlands by mail at least twenty-one days prior
mine whether the proposed activity would violate any thereto.
provisions of chapter ninety-one and shall take such Upon the adoption of any such order or any order
action as may be necessary to enforce such provi- amending, modifying or repealing the same, the com-
sions. if the area on which the proposed work is to be missioner shall cause a copy thereof, together with a
done is determined by the department of natural plan of the lands affected and a list of the assessed
resources to be essential to public or private water owners of such lands, to be recorded in the proper
supply or'to proper flood control, the department registry of deeds or, if such lands are registered, in
shall by written order signed by the commissioner the registry district of the land court, and shall mail a
impose such conditions as may be necessary to pro- copy of such order and plan to each assessed owner
tect the interests described herein, and the work shall of such lands affected thereby. Such orders shall not
be done in accordance therewith. The provisions of be subject to the provisions of chapter one hundred
this section shall not apply to areas established by the and eighty-four. Any person who violates any such
water resources commission as flood plain zones. order shall be punished by a fine of not less than ten
Land used for agricultural purposes shall be exempt nor more than fifty dollars, or by imprisonment for
from the provisions of this section. The provisions of not more than one month, or by both such fine and
this section shall not apply to any work done under imprisonment.
the provisions of clause(36)of section five of chapter The superior court shall have jurisdiction in equity i
forty, chapter two hundred and fifty-two, or any spe- to restrain violations of such orders.
cial act. The commissioner may, by rule or regula- Any person having a recorded interest in land
tion, exempt from this section such other uses as he affected by any such order, may, within ninety days
may deem not inconsistent with the purposes of this after receiving notice thereof, petition the superior
section. Whoever violates any provision of this sec- court to determine whether such order so restricts the
tion shall be punished by a fine of not more than one use of his property as to deprive him of the practical
hundred dollars or by imprisonment for not more uses thereof and is therefore, an unreasonable exer-
than six months, or both, and the superior court shall cise of the police power because the order constitutes
have jurisdiction in equity to restrain a continuing the equivalent of a taking without compensation. If
violation of this section. the court finds the order to be unreasonable exercise
of the police power, as aforesaid, the court shall enter
12.06 COASTAL WETLANDS ACT a finding that such order shall not apply to the land of
(Acts 1965, Ch. 768, the petitioner; provided, however, that such finding
G.L. Ch. 130, Sec. 105) shall not affect any other land than that of the peti-
tioner. The commissioner shall cause a copy of such
The commissioner, with the approval of the board finding to be recorded forthwith in the proper regis-
of natural resources, may from time to time, for the try of deeds or, if the land is registered, in the
purpose of promoting the public safety, health and registry district of the land court. The method pro-
welfare, and protecting public and private property, vided in this paragraph for the determination of the
wildlife and marine fisheries, adopt, amend, modify issue of whether any such order constitutes a taking
or repeal orders regulating, restricting or prohibiting without compensation shall be exclusive, and such
dredging, filling, removing or otherwise altering, or issue shall not be determined in any other proceed-
polluting, coastal wetlands. In this section the term ing, nor shall any person have a right to petition for
"coastal wetlands" shall mean any bank, marsh, the assessment of damages under chapter seventy-
swamp, meadow, flat or other low land subject to nine by reason of the adoption of any such order. '
48
The department may, after a finding has been the director of marine fisheries. Said notice shall be
entered that such order shall not apply to certain land sent by registered mail at least fourteen days prior to
as provided in the preceding paragraph, take the fee any such removing, filling or dredging. The selectmen
or any lesser interest in such land in the name of the or, in the case of a city, the licensing authority, shall
commonwealth by eminent domain under the provi- hold a hearing on said proposal within twenty days of
sions of chapter seventy-nine and hold the same for the receipt of said notice, notice of which hearing
the purposes set forth in this section. shall be given by them by publication in a newspaper
No action by the commissioner or the department published in such town or city, or if there be no
under this section shall prohibit, restrict, or impair newspaper published in such town or city, then in a
the exercise or performance of the powers and duties newspaper published within the county, and shall
conferred or imposed by law on the department of notify by mail the person intending to do such remov-
public works, the state reclamation board or any ing, filling or dredging, the department of public
mosquito control or other project operating under or works and the director, of the time and place of said
authorized by chapter two hundred and fifty-two. hearing. The cost of such publication of notice shall
No order adopted hereunder shall apply to any be borne by the person filing the notice of intention
area under the control of the metropolitan district to so remove, fill or dredge. The selectmen or licens-
commission. ing authority, as the case may be, may recommend
Expenses incidental to adopting and recording or- the installation of such bulkheads, barriers or other
ders, and awards of damages for lands taken by protective measures as may protect the public inter-
eminent domain, under section one hundred and five est. If the department of public works finds that such
of chapter one hundred and thirty of the General proposed removing, filling or dredging would violate
Laws, as appearing in section one of this act, may be the provisions of sections thirty and thirty A of chap-
paid out of funds made available under the provi- ter ninety-one, it shall proceed to enforce the provi-
sions of chapter five hundred and seven of the acts of sions of said sections. If the area on which the pro-
nineteen hundred and sixty-four for carrying out the posed work is to be done contains shellfish or is
provisions of section three of chapter one hundred necessary to protect marine fisheries, the said director
and thirty-two A of the General Laws. may impose such conditions on said proposed work
as he may determine necessary to protect such shell-
fish or marine fisheries, and work shall be done sub-
12.07 JONES ACT FOR COASTAL ject thereto.
WATERS (Acts 19632 Ch. 4261, Whoever violates any provision of this section
Acts 1965, Ch. 375, G.L. Ch. 130, shall be punished by a fine of not more than one
See. 27A) hundred dollars or by imprisonment for not more
than six months, or both, and the superior court shall
No person shall remove, fill or dredge any bank, have jurisdiction in equity to restrain a continuing
flat, marsh, meadow or swamp bordering on coastal violation of this section.
waters without written notice of his intention to so This section shall.not affect or regulate the ordi-
remove, fill or dredge to the board of selectmen in nary and usual work of any mosquito control project
a town or to the appropriate licensing authority in a operating under chapter two hundred and fifty-two,
city, to the state department of public works, and to or under the provisions of a special act.
49
Chapter 13 Forms
i
13.01 FORM I PURCHASE IN FEE
We, John Doe and Mary Doe, husband and wife (etc.), for consideration paid, hereby grant to the Town
of with Quitclaim Covenants the land situated in said Town of ,
County of , Commonwealth of Massachusetts, and bounded and described as follows:
Northerly
Easterly
Southerly
Westerly
containing square feet of land, more or less, according to a plan _ f
(describe plan by surveyor's name, date, and recording data).
For our title, see deed of to the grantors dated and recorded
with County Deeds, Boob _ , Page
Said real property is conveyed to said Town under the provisions of General Laws, Ch. 40, Sec. 8-C as it may
hereafter be amended to be managed and controlled by the Conservation Commission of the Town
of . for the promotion and development of the natural resources and for the protection of
the watershed resources of said Town.
In Witness Wherof we hereto set our hands and seal this, day of ,
196
Signatures
Acknowledgement before
Notary Public
(Documentary Stamps $1,00 for each $500 of purchase price.)
13.02 FORM II GIFT IN FEE IN TRUST (Omit Trust Provisions for Small Parcels.)
We, John Doe and Mary Doe, husband and wife (etc.), release, grant and dedicate to the Town
of , without covenants, the land situated in said Town of , Coun-
ty of , Commonwealth of Massachusetts, and bounded and described as follows:
Northerly
Easterly
Westerly
Southerly
containing feet of land, more or less, according to a plan (describe plan by surveyor's name,
date and recording date).
BUT NEVERTHELESS IN TRUST upon the following terms and conditions:
I. Such Town shall be Trustee under this trust.
2. The Conservation Commission of the Town of_ shall manage and control the
property conveyed to this public charitable trust and shall constitute a board of visitors to enforce and preserve
this trust. As such it may take appropriate legal action, as an alternate to the Attorney General as petitioner. If it
should cease to exist, such powers shall devolve upon the Board of Selectmen.
3. The Trust property shall be used for the purposes authorized by G.L. Ch. 40, Sec. 8-C as it may hereafter
be amended and other Massachusetts statutes relating to Conservation, including the protection and development
of the natural resources and the protection of the watershed resources of the Town of
(include references to recreation, view or other purposes which are basic to the particular parcel.)
4. If the Trust property or any interest or part thereof should be taken by eminent domain by any body
corporate or politic, the net proceeds of the award after paying charges related thereto shall be added to the
conservation fund of said Town. '
50
5. This Trust shall become effective upon the acceptance of this deed by said Town, signified by the
1 approval of its Board of Selectmen hereto as authorized by G.L. Ch. 40, Sec. 8-C,
1 For out title see(etc.).
This conveyance is made without consideration.
IN WITNESS WHEREOF, (etc.)
(No Documentary Stamps Needed)
Signatures
Acknowledgement before
Notary Public
(APPROVAL)
We the undersigned Board of Selectmen of the Town of —hereby approve the receipt of
the within trust deed G.L. Ch. 40, Sec. 8-C as it has been and may be amended as requested by vote of the
Conservation Commission of said Town for the protection of the natural and watershed resources of the Town.
(To be recorded in the Registry of Deeds)
13.03 FORM III RESTRICTION AND EASEMENT OVER WHOLE PARCEL
We, John Doe and Mary Doe, husband and wife (etc.), o
County, Massachusetts, covenant with the Town
of in said county and grant and dedicate to said Town an easement as follows:
I Such restriction and easement shall relate to the premises in said bounded and
described as follows:
Northerly
Easterly
Westerly
Southerly
Such restriction and casement shall provide that on said premises (1) no building or other structure (including,
subject to existing easements, public utility poles but not including stone walls or fences) will be erected or
placed; (2) no paving, filling or dumping will be permitted; (3) no soil, sand, loam, gravel or rock shall be
excavated by mechanical means except for the purposes of planting trees, shrubs and flowers or putting existing
wires underground, maintaining and replacing them and no roads shall be constructed. The purpose of this
restriction and easement is for the protection of the natural and watershed resources of said Town under G.L.
Ch, 40, Sec. 8-C.
(Optional: We grant to the said Town and its inhabitants an easement to pass and repass upon said land on
foot for purposes of hunting,fishing,hiking or nature study so long as the Town by its Conservation Commission
enforces reasonable regulations as to such use designed to prevent injury to persons or damage to said property.)
(Optional: All rights not expressly given herein are reserved to us including (select as needed) the right to
conduct any type of agricultural or forestry activity thereon and this covenant is to be.construed so as not to
interfere therewith in any respect.)
We grant to the Town an easement to enter the premises, by its Conservation Commission and its other duly
elected or appointed officers, employees and agents, or both, for the purpose of inspecting the premises,
maintaining the flow of a brook on said premises and enforcing the foregoing restrictions. The right hereby
granted shall be in addition to any other remedies available to the Town for the enforcement of the foregoing
covenant and restriction.
The foregoing covenant, easement and restriction shall run with the land and bind our successors, heirs or
assigns in title to the premises and inure to the benefit of the general public and the inhabitants of said Town in
perpetuity. We shall not be personally liable for any breach occurring unless we own the portion of the premises
51
where the breach occurs. (If the Town owns a nearby road, piece of land and/or waters, mention this fact and
state what the benefit is.)
(Optional— If Federal tax benefits are not important) Should any portion of the premises be taken by or on
behalf of the Town or any public authority, the rights hereby created shall terminate and we or our successors in
title shall be entitled to damages measured by the full value of the property taken and also by the reduction in
value of the remainder of our land, including but not limited to the premises.
No documentary stamps are needed for this instrument.
In Witness Whereof we have hereto set our hands and seals, this day of ,
196
(COMMONWEALTH OF MASSACHUSETTS)
ss.
Then personally appeared the above-named and and acknowl-
edge the foregoing to be their free act and deed, before me.
Notary Public
My commission expires , 19
(APPROVAL)
We, the undersigned Board of Selectment of the Town of , hereby approve the receipt
of the foregoing deed under G.L. Ch. 40, Sec. 8-C as it has been and may be amended as requested by vote of
the Conservation Commission of the Town, for the protection of the natural and watershed resources of the
Town.
I
(Note: Use"for consideration paid,"and documentary stamps and omit approval if the easement is purchased.
If purchased, it will be valid only for thirty years or a different stated period.)
13.04 FORM IV RESTRICTION AND EASEMENT OVER A STRIP
We, John Doe and Mary Doe (etc.),covenant with the Town of , etc., as in Form III.
. . -with respect to that portion of our land situated on the easterly side of the River in
said Town of which is located One Hundred (100) feet from the thread (or bank) of the
stream that no building, other structure, wall or fence will be erected, placed or permitted to remain upon said
portion of our land and no filling or dumping will be done by us or permitted by us.
The rights herein conveyed and dedicated are for the promotion and development of the natural resources and
for the protection of the watershed resources of said Town under G.L. Ch. 40, Sec. 8-C as it may hereafter be
amended.
(Optional: We grant to the inhabitants of the said Town an easement to pass and repass upon such portion of
our land for purposes of hunting, fishing or nature study, etc., but the said town is not hereby permitted to
construct paths thereon nor to place any structures thereon.)
The foregoing covenant shall run with the land and bind our successors in title to the premises, but we shall
not be personally liable for any breach occuring after we shall have ceased to own the premises where the breach
occurs. The benefit of its covenant shall inure to the Town in perpetuity. (Add eminent domain clause if
desired.)
No documentary stamps are needed for this instrument.
In Witness Whereof,(etc.)
Signatures
Acknowledgement-,
Approval by Selectmen.
52
13.05 TOWN MEETING VOTE TO ESTABLISH COMMISSION
` VOTED: That the Town of hereby accepts the provisions of G.L. Ch. 40, Sec. $-C as
amended and establishes the Conservation Commission of the Town of for the purposes
and with the rights and duties provided by law, to be composed of seven residents of the Town appointed by.the
Selectmen for terms of three years except that initial appointments shall be two for one year, two for two years
and three for three years, and that there be established a Conservation Fund as authorized by law and that
$ be raised and appropriated for the maintenance of such Commission and
$ appropriated to such Conservation Fund to be under the control of such Commission.
13.06 FLOOD PLAN DISTRICT BY-LAW
1. The purpose of this section is to promote the health and safety of the occupants of lands deemed subject
to seasonal or periodic flooding and the welfare of the general public. In the Flood Plain Districts any use
otherwise permitted by this By-Law shall be permitted except that no building or other structure or storage of
materials shall be erected or placed in a Flood Plain District unless a permit for such building has been issued by
the Board of Appeals after a hearing with due notice given. Said permit shall state the conditions under which
said building may be erected or placed in the Flood Plain District.
2. Any person desiring a permit to erect or place a building or other structures or store materials within a
Flood Plain District shall submit an application, accompanied by preliminary plans of such structure and of the
premises on which it is to be situated, to the Building Inspector, who shall transmit it forthwith to the Board of
Appeals. No building permit shall be issued until the Board has issued a permit under this section or has allowed
forty-five days to elapse after receipt of the application by the Building Inspector without acting thereon.
3. The Board shall issue a permit under this section if it finds that the use of the premises will not endanger
the health or safety of the occupants thereof or other land in the Flood Plain District. In deciding applications
for a permit under this section, but without limiting the generality of the foregoing, the Board shall assure, to a
degree consistent with the reasonable use of the premises for purposes permitted in the district in which the land
' is located, that:
(a) The floor level of areas to be occupied by human beings shall be at an elevation of at least 123 feet,
U.S.G.S. datum, except that along the River above dam the
controlling elevation shall be 130 feet U.S.G.S. datum.
(b) Other land in the Flood Plain District is protected against detrimental or offensive, uses of the
premises.
(c) Safe vehicular and pedestrian movement to, over and from the premises is provided over ways having
an elevation of at least 123 feet, U.S.G.S. datum, except along the River
above dam the controlling elevation shall be 130 feet U.S.G.S. datum.
(d) The methods of drainage are adequate.
(e) The methods by which the premises are filled or otherwise elevated will minimize the danger to the
health or safety of the occupants thereof.
For tidal Rood plains only:
(f) The Board may impose such conditions as it thinks proper to protect shellfish or marine fisheries.
4. Nothing contained in this Section shall limit the authority of the Board of Health with respect to
premises in the Flood Plain Districts or affect the applicability of the Building Code to any building in the Flood
Plain Districts.
13.07 RULES AND REGULATIONS
Acts 1965, Ch. 768 (2) added the following to the Conservation Act:
"The Commission may adopt rules and regulations governing the use of land and waters under its control,
and prescribe penalties, not exceeding a fine of one hundred dollars, for any violation thereof."
(After adoption, Rules and Regulations should be filed with the Town Clerk and the Chiefs of the Fire and
Police Departments.)
Conservation Commission of the Town of
Rules and Regulations for Areas under its Control.
53
I. These regulations apply to all areas in the Town of under the control of its
Conservation Commission either by deed provisions, town meeting vote or informal arrangement with other
officials or departments. Signs reading "Under control of Conservation Commission of the Town
of " are to be posted at normal entrances to each such area.
2. "No Hunting"or"No Fishing" signs will be posted if such is intended. if not posted, areas may be hunted
or fished in season with license and in accord with applicable law.
3. All persons are welcome in conservation areas of the Town without permit from dawn to dark.
4. Overnight camping will usually be permitted to Scouts having an adult leader present at all times and to
groups all of whom are eleven or more years of age and having an adult present at all times, to family groups or
to groups all of whom are fourteen years or more. Every group shall obtain a fire permit for summer and fall
campouts if open fires are planned and then obtain (oral) (written) permission and allocation of campsite from
the chairman or secretary of the Conservation Commission, (any Selectman or the Chief of Police.
5. Permission to camp may be denied for any reason relating to health, safety, morals, forest fire danger,
absolute overcrowding or prior violations of these rules by some or all of the group. Citizens of the Town may be
given priority. Citizens of other towns may be required to present references.
6. Conservation areas are meant to be preserved in a natural state. Cans, bottles and garbage are to be
placed in receptcles, if any are provided, buried or taken away. No growing trees, bushes, plants or flowers are to
be defaced or cut nor paint applied. Fires, with permit in season, are permitted only in fireplaces provided.
Firewood should be brought but dead wood on sites may be used.
7. The Conservation Commission alone may authorize trails to be cut or marked, dams to be built or any
structure such as a lean-to, bridge, tower, or handrail to be constructed. It welcomes suggestions and volunteer
labor.
8. No cars, trucks, or other powered vehicles or tools are allowed except on public roads and except for
Town vehicles.
9. Visitors to areas are urged to leave them cleaner than they were found and to report violations of
these rules to the Commission or to the Chief of Police.
10. The Conservation Commission has no employees, does not patrol these lands and cannot assume for the
town liability for injuries, damage to property or other loss to persons going on such areas who themselves
assume all the risks involved.
I L Violations hereof shall be punished by fines not less than $5 nor more than $25 for a first offense, not
less than $10 nor more than $50 for a second offense and not less than $15 nor more than $100 for a third or
subsequent offense.
13.08 THE CONFLICT OF INTEREST LAW
Commission members should have been classified as"Special Municipal Employees" under Ch. 268-A, See. I
(n) as of May 1, 1963..Thcse remarks and the form assume this to have been done. Members and their families
may hold other jobs in the town. if they are regular employees as to another job, that classification will control.
A. Commission members (who are "special employees") may, in their businesses, contract with any agency
of the municipality except the Conservation Commission on filing with the Town Clerk a statement somewhat as
follows:
TOWN OF
, 196
The undersigned, a member of the Conservation Commission, classified as a Special
Municipal Employee on . _`, 196 ,.declares, under G.L. Ch. 268-A, Sec. 20 that I or my
immediate family have an interest in a contract or a proposed contract with the Town
of as follows:
a. The contract is:
b. The contracting party is:
c. 1 or my immediate family have the following interest in the contracting party:
d. I certify, to the best of my knowledge and belief, that I have not nor will not participate in or have
official responsibility for any of the activities of the contracting agency of the Town
of .
(Signature)
54
B. If a member wishes to contract with the Conservation Commission itself, he must first obtain written
approval of the Selectmen and file it with the Town Clerk. The form can be the same as above through "c
substituting the following paragraph "d".
d. I request the Selectmen of the Town of to exempt me or my immediate family
from Sec. 20 of said act and declare that no substantial conflict of interest will arise which will prejudice
my present or future actions in my position.
(Signature)
(APPROVED) (DENIED) , 196
Selectmen of the Town of
C. Special problems may be referred to town counsel by letter to the chairman of the Commission,
forwarded by him with or without comments. Opinions are public records.
D. A member should be able to give land to the town without this formality. If a member might contract
with the Commission as often as once a year, he ought to resign. However, there is no stigma whatsoever in filing
the disclosure to permit other town contracts. Active businessmen with local knowledge are important members
of any Commission.
1
55
Index
r
Sec. Page
Access,Board of Public .. . . . . . .. . . . . . . . .. . . 8.14 29 Reasons for . . .. . . . .. . .. . . . .. . .. .. . . . . .. 3.15 8
Access to public . .. .. . . . . . . . . . I. . . . .. . .. . . 6.09 23 Statute . .. .. . .. .. . .. . .. .. . . .. .. . . . .. . .. 12.03 47
Accidents,liability for . . . . . . . . . . . . .. . . . . . . . 5.23 20 Conservation Law Foundation . .. .. . . . . . . .. . 5.24 20
Agencies,for cons.funds . .. .. .. .. . .. .. . .. .. 9.24 33 Conservation,soil,see
Agreements,land .. .. .. .. . .. . . . .. . . . . . .. .. 5.13 18 Conservation Districts
Watershed projects . . . . . . .. . .. . . .. . . . . . . . 9.11 31 Conservation Services,Div.of
See Contracts Purposes . . . . . . .. .. . . .. .. . .. . . . .. . . .. .. . Forword
Appeals, board of 3.20 10 Conservation,U.S.Soil
Appropriation,for expenses .. . .. .. .. .. . .. .. . 3.15 8 see Soil Conservation
Approval,Federal projects .. . .. . . . . . . . . . .. . . 5.06 15 Constitution, Mass. .. . . . . . . .. .. . . . . . . .. .. . 12.02 47
Gifts,by selectmen . . . . . . . . . . . . . . . . . . . . . . 5.04 15 Contracts
Article,budget or special . . . . . . . . .. . . . .. . . . . 3.16 8 For Federal grants . .. .. . . .. .. . . . .. . .. .. . 5.06 15
For purchase . . . . . .. . . . . . .. . . . . . .. . .. . . . 5.06 15 For land purchase . .. . .. .. . . . . . .. . . . . . . . . 5.13 18
For taking . .. . .. .. . .. .. .. . .. .. . .. .. .. .. 5.07 16 For maintenance . . .. . . . . . . . . .. . . . . . . . . . 5.22 20
Associate members .. .. . . .. . .. . . . .. . . . . . . . . 3.09 6 Control of Conservation land
Discussion . . .. . . . .. . . . . . . . .. . . . .. . . . . . . 11.06 41 Extent,by Commission . . . . .. . . . . . . .. .. . . 5.02 14
Association, Mass.of Cons.Corn. . .. . . . .. . . . . 2.02 3 Tax title . . . . . . .. . .. .. . .. .. . .. .. . .. . .. .. 5.17 19
Address . . . . . . . . . . .. . .. . . .. .. . . . .. . .. .. 1.04 1 Transfer . . . .. . .. .. . .. .. . .. .. . .. . . . .. . . 5.21 20
Attorney,retaining . .. .. .. . .. .. . . ... . . . . . .. 5.24 20 Conveying land . . . . .. . . . .. . . . . . . . , . . . . . . . . 5.03 14
Corporation,landholding
Bargain sale,for income tax 7.04 24 Choice of. . . . . . . . . . . . . . . . . .. . . . . . .. . . . . 11.02 40
Beautification Form for . . .. . . . .. . . . .. . .. .. .. . .. . .. .. . 11.03 40
Highway. . ... . . . . .. . . . . . . . .. . . . . . . . . . . . 9.14 32 See land trusts
Urban . . . .. . . . . . . . .. .. . .. . . .. .. . .. .. . . 9.13 32
Berkshire Nat. Res.Council . . .. .. . .. . . . . . .. I I.08 45 Dedication, in gift . . . .. . . . . . . . . . . . . . . . . . . . 6.11 23
Betterments,assessment of. .. . . . . . . . .. . . . .. . 5.12 17 Deed,easement,forms
Board of Appeal . . . . . . . . .. . . . . . .. . . . . . .. . . 3.20 10 Strip of land . . . . .. . .. .. . . . . .. . . . .. . . . .. 13.04 52
Board of Health .. . . . . . . . .. . . . . . . . . . . . . .. . 3.23 10 Whole parcel .. .. . . . .. . . . .. . .. .. . . . .. . .. 13.03 51
Borrowing for Cons.land . .. .. .. .. . .. . . . .. .. 5,11 17 Deeds
Brownell, Arthur W. .. . .. .. .. . . . . . . . . . . . . . 1.01 1 Formalities . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 5.06 15
Budget Gift (form) . . . . . . . . . . . . . . . .. .. . .. ... .. . 13.02 50
Commission,expenses. . . . . . . . .. . . . . . . . . . . . 3.13 7 Purchase(form) . .. . . . .. .. . .. .. . . . .. .. . . 13.01 50
Land . .. . . . . . . . .. . . . .. . . . . . . . . . . . . .. . . 3.14 8 Deed in Trust(form) . .. . . . .. . .. .. . . . . . . . . . 13.02 50
Fund . . . .. .. . . . .. . .. .. .. . .. .. . .. .. . .. . 3.15 8 See Trust
Special article . .. . . . . . .. . . . .. .. . .. . . . . . . 3.16 8 Definitions . . . . . , . . . . . . . . . . . . . . . .. . 1.04 1 '
Description of land,deed . . . .. . . . . . . . . . . .. . . 5.19 19
Capital gains tax . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03 24 Design function . . . . .. . . . . . . . . .. . .. .. . .. .. 2.08 4
Bureau of Outdoor Recreation Districts,Conservation
Addresses .. . .. .. .. . .. . . . . . .. . .. .. . . . .. 9.07 31 See Conservation Districts
Projects . .. .. .. . .. .. . .. .. . . . . . . . . . . . . . . 9.09 31 Due process,zoning as violation of . . . . . . . . . . . 10.01 35
Chairmen,election of. . . .. . . . . . .. . . . . . .. . .. 3.06 6 Dues to Association . . . . . . . . . . . . . .. .. . .. .. . 2.02 3
Cities
Dues to Association . .. .. . . . .. . . . .. . . . .. . 2.02 3 Easements
Included in"towns.. .. . .. .. . .. .. . .. . . . . . . 1.04 1 See Deed
Clubs,conservation . .. . . . . . . . . .. .. . . . . . . .. 11.01 40 Formalities . . . . . .. . . . . . . .. .. . .. . . . . . . . . 6.10 23
Cluster zoning . . . . . . . . . . .. . . . . . . . . . . . . . . . . 10.05 35 General . . . . . . . . . . . .. . 6.01 21
. . . . . . . . .. . . . . . . .
Coastal marshes,see Wetlands Kinds of easements . .. .. . . . . . . .. . . . .. .. . . 6.08 22
Committees on Conservation . . . .. . . . . . .. . .. 3.02 5 Kinds of land . . . . . . . . . . . . . .. .. .. . . . . . . . 6-04 21
Conflict of Interest Law .. . . . . . . .. .. . . . . . . .. 13.08 54 Kight of access . . . . . . .. . . . .. . .. .. . . 1 . - 6.09 23
Conservancy,zoning .. . . . . . . . . .. . . . . . . . . 1. 10.10 37 Tax effect . . . . . . . .. . . . . . . . . . . . . . .. . . . . . 6.09 23
Conservation Act,statute . . . . . . . . . . . . . . . . . . . 12.01 46 Ells,Stephen F. . . . . . . . . . . . .. . .. .. . . . .. . . . . 1.06 2
Adopting . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 3.03 5 Eminent domain . . . . . . . .. . .. . . . .. .. . .. . . . . 7.08 25
Form of vote . . . . . .. .. . . . .. . . . . . .. . .. . . . 13.05 53 Acquiring land by . . . . . . . . . . .. . , . , . . . . . . . 5.07 16
Conservation Commissions Clearing title . . . . . . . . . . . . . . . . . 5.20 19
Appropriations for,see Budget
Condemnation . . . . . . . . . . . . . . . . . . . . . . .. . 5-08 16
Meetings . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 3.07 6 Highways . . . . .. . . . . . . .. . .. .. . .. .. .. . . . 5.10 16
Members, number . . . .. . .. . .. . . . . . .. . .. . 3.04 5 Expense appropriation . . . . . . . . . . .. . . . . . . . . . 3.13 7
Members,qualifications . . . . . . . .. . . . .. . .. . 3.05 5
Money,see Budget Federal programs
Organizing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.06 6 Miscellaneous programs . .. ... . . . . . . . .. .. . 9.24 33
Powers,outline of. . . . . . . . . . . .. . . . . . . . . . . 3.01 5 Monies . . . . . . . . . . , . . . . . . .. . .. .. . .. .. . . 9.01 30
Reasons for . .. . . . .. .. . .. . . . .. . .. . . . . . .. 3.02 5 Open space land program .. . . . . . . . . . . . . . . 9.02 30
Records . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . 3.10 7 Outdoor recreation . . . . . . . . . . . . . . . . . . . . . . 9.07 31
Rules and regulations of.. . . . . . . . . .. . . . . . . 13.07 53 Small watersheds . . . . . ... . . . . . . . . . . . . . . . . 9.09 31
Vote to establish . . . . . . . . . . . . . . .. . . . . . . . . 13.05 53 See Chapter 9
Conservation,meaning . . . . . . . . . . . . . . .. . . . . 2.03 3
Conservation Districts Finance committee,relations . . . . . . . .. . . . . . . . 3.11 11
Achievements . . . . .. . .. . . . .. . . . .. . . . .. . . 4.12 13 Flood control works . . . . . . . . . . . . . . . . . . . . . . . 9.20 33
Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04 12 Flood plain zoning
Association of. . . . . . . . . . . . . . . . . . . . . . . . . . 4.10 13 Conservancy . . . . . . . . . . . . .. . . . . . .. . .. . . . 10.10 37
Finances.. . . . . . . .. .. . .. . . . .. .. . . . . . . . . 4.03 12 Limitations . . . . . . .. . . . . . . . . . . . . . . . . . - 10.07 36
Supervisors . . . . .. . . .. . . . . . . .. . . . .. . . . .. 4.01 12 Sample By-Law . . . . . . . . . . . . . . . . . . . . . . . . 13.06 53
Conservation fund See Wetlands
Eminent domain award . . . . . . . . . . . . . . . . . . 5.07 16 Formalities
56
Deeds . . . . . .. . . . . . .. .. . .... .. . .. . . .. .. 5.06 15 Natural Resources,
Easements . . .. . . .. . . . . . ... . . .. . . .. .. . . . 6.11 23 See . . Foreword v
Eminent Domain . . .. .. .. . .. . . . . .. . . . . . . 5.07 16 Self-Help Program,see Self-Help
Fund,see Conservation fund See Hatch Act,
Jones Act&Wetlands
Gifts of Navigation works . . . . .. . . . .. . .. . . .. . . . . . . . 9.19 33
Land . . . . .. . . . . .. . . . .. .. . . . .. .. .. . ... . 5.04 15 Neighborhood Youth Corps .. .. . . .. . .. . .. . . 9.23 33
Land subject to rights . .. .. .. . . . . . .. .. . . .. 5.09 17 Nuisance,law of. . . . .. . . . .. . .. . . . . . . . . . . . . 10.22 39
Money . . .. . . .. . .. .. .. .. ... .. . .. . . .. . . . 3.17 9
Grants,see Federal programs Open Meetings .. . . : . . . . . . . . . . . . . . . . . .. . .. 3.08 6
Great ponds,access .. . . .. . .. . . .. .. .. . . . .. . 8.14 29 Open Space Land Programs
Funds . . . . . . . . . . . . . .. . . . .. . . . . . .. .. . . . 9.03 30
Handbook General . .. . .. . . . .. . . . . . . . . . .. . .. .. . .. . 9.02 30
History . . .. .. .. .. .. . . . . . .. . . . .. . . .. . . . 1.01 1 Percent of payment .. . .. .. . . . . , . . 9.05 30
Definitions . .. .. . .. .. . .. . . .. .. . . . .. . . .. 1.04 1 Requirements. . . . . . . . .. . . . .. .. . .. . . . .. . 9.04 30
Obtaining copies . .. .. .. . .... .. .. . .. .. . . . 1.06 2 Options. . .. .. . . . .. .. . .. . . . . . . . . . . . . . . . . . 5,13 18
Supplements to .. .. . . . . . ... . . . . .. . . .. . . . 1.06 2
Hatch Act Park commissioners .. . . . . . . .. .. .. . . . . . . . . . 3.19 9
Administration . .. .. . . . . ... .. .. . .. .. .. .. 8.08 27 Parks
Discussion ... . . .. .. . .. . . .. .. . . . . . .. .. .. 10.16 28 Betterments for .. .. . .. . . . . . . , . . . . 5.12 17
Statute .. . . .. .. . . .. . .. .. .... . .. .. . . . . . . 12.05 47
Conservation land as parkland .. . . . . . . . .. . 3.22 10
Health,board of.. . . . . . . . . . ... .. .. . .. . . .. .. 3.23 10 Requirement for . . . . . .. . . . . . . . . . . .. . . . . . 3.17 9
Highways Plan,for land purchase . .. . . . . . . . . . . . . . .. . . 5.03 14
Beautification . . . .. . . .. .. .. . .. .. . ... . .. . 9.14 32 Plan,master . . . . . . . . . . .. . 3.18 9
.. . .. .. .. . .. . . .
Takingsfor .. . . . .. . . .. . . .. . . . . . . . . . .. . . 5.10 17 Planning boards
Housing and Urban Development Reserving parks . .. .. . .. . . . . . . . . . . 3.19 9
Open space program . .. .. . .. .. . .. .. .. . . . . 9.02 30 Subdivision control . . . . . . .. . . . . . .. . .. .. . 3.19 9
Vote to authorize .. . . . . . . .. . . .. . . .. .. .. . 5.06 15 Police power . .. .. . . . . . . . . . . .. . . . . . . . . .. . . 10.01 35
Pollution,see Water pollution
Income tax,deduction from . . .. .. . . .. . . . .. . . 7.02 24 Powers of Cons.Coms. . . .. .. . . . .. . . . .. . . . . 2.01 3
Individual members . .. . . . . . .. . . . .. .. .. .. . . 11.01 40 Preservation function .. . . .. . .. . . . . .. . .. . . . . 2.07 4
Informal arrangements .. . . . . .. . . . . . .. .. . . 1. 5.21 20 Private groups,see land trusts
Inland Wetland Act . . . . .. .. .. . ... . .. . . .. .. 8.10 28 Projects,money for . .. . . . .. .. . . . .. . .. . . . . . 3.12 7
Discussion. .. . . . . . .. . . . ... . .. .. .. .. . . . . 10.12 37 Public Access Board . . .. . . . . . . . . . . . . . . . . . .. 8.14 29
Public Law 566 . . . . .. . . . .. . .. . . . . .. . . . . . . . 9.09 31
Job Corps . . . . . . . . . . .. .. .. ... .. . .. . . .. . . . 9.22 33 Public purpose,easements . . .. . .. .. . . . .. . .. . 6.07 22
Jones Act,Administration . . . .. .. . . . .. . . .. .. 8.09 28 Public welfare . .. .. . . .. . . .. . . . . . . . . . . . . .. . 10.01 35
Purpose . . . .. .. .. .. . .. . . .... . . . .. . . .. .. 10.13 37 Public Works Dept. . . .. . . . . . .. . .. .. .. . .. . . 3.21 10
Junk cars .. . . . . . . . . . .. .. . . .. . .. .. .. .. .. .. 10.19 39 Purchase formalities . . . . .. . .. . . . . . . . .. . . . . . 5.06 15
Tax title land . . .. .. . . . .. .. . .. . .. .. . .. . . 5.18 19
` Land Form . . . . . .. . .. .. . . . . . . . . . . . . .. . . . .. .. 12.01 46
I Acquisition .. .. . .. . . . . . . .. . .. .. .. . . . . . . 5.01 14
Control of. . . . .. . . . . . . . .... .. .. . .. .. .. . 5.02 14 Real estate taxes
Formalities . .. .. .. . . . . . . ... .. . . . .. .. .. . 5.06 15 Assessments . . . . .. .. . .. . . . . . .. . . . . . . . . . 7,07 25
Management .. .. .. . . .. . .... . .. . . . . .. . . . 5.22 20 Easements .. . . . . . .. . .. . ... . .. .. . . . .. . .. 7.08 25
Transfer between departments . .. .. . .. .. . . . 5.02 14 Deferral .. . .. .. .. . . . . . . , . . . . . . .. . . . . . . . 7.09 25
Trust,gift in .. .. . ... . . . ... . .. . . . . .. . . .. 5.05 15 Recreation
Land trust Water . .. . . . . . . . .. . . . .. . .. .. . . . .. . .. . . 9.15 32
Adv.atages .. . . .. . . . .. . . .. .. . . . .. .. .. . . 11.02 40 Registration of land .. . . . . . .. . . . .. . . . . . .. .. 5,19 19
Comparison with Commissions .. . . . . . . . .. . 11.05 41 Resource team . . . . .. . .. .. . . . . . . . . . . .. . . . . 4,08 13
Form for . . . . . .. .. . . .. . . ... .. . .. . . .. .. . 11.03 40 Reverter,deed subj.to . . . . . . . . . . . .. .. . .. .. . 5.09 17
General .. .. . .. . . .. .. . . . .. .. .. .. .. . ... . 11.01 40 Rules and regulations sample set . . . . . . . . . . . .. 13.07 53
List of. . .. . .. . . .. .. . .. . .. . .. . . . .. . . .. . 11.07 41
Leases,long term . . . . . . . .. ..... .... .. .. . . . 5.09 17 Salt marshes,see Wetlands
Lease-back after sale .. . . .. . .. .. .. .. .. .. ... 6.05 22 Selectmen,powers of. . . . . . . . . . . . . . . . .. .. 1 . 3.11 7
Legal assistance . . . . .. .. . .. .. .. .. . . .. . . . .. 5.24 20 Self-Help Act
Limitations on zoning . . .. . . .. . . .. .. .. .. . .. 10.11 37 Use Requirements . . . . . . . . . . .. . . . .. .. . . . 8.02 26
Funding. . .. . . . . . . . . .. . .. . . . . . . . . . . .. . . 8.04 27
Management of land . .. . . . .... . . . . . . . .. . . . 5.22 20 Legal procedures . . . . . . .. . .. .. . .. .. . .. . . 8.06 27
Marshes,inland,see Wetlands Mechanics . .. . ... . . . . . . . . . . . .. . . . .. .. . . 8.05 27
Marshes,tidal,see Wetlands Planning requirements . .. .. . .. .. . . . . . — 8.03 26
Massachusetts,see Natural Resources Statute . .. . . . . . . . .. .. . .. . . . .. . . . .. . .. .. 12.04 47
Mass.Assn.of Cons.Commissions .. . .. .. . ... 2.02 3 Sewage .. . . . .. .. . . . .. .. . .. . . . . . . . . . . . . . . 3.25 11
Mass.Audubon Society . .. .. .. . . .. . . .. . I. .. 11.08 45 Shade trees .. . . . . . . . . . .. .. .. . . . . . . M.17 38
Mass.Conservation Act . .. .. . . .. . .. .. . ... . . 12.01 46 Shore protection . . .. .. . .. . . . .. . . . . . . . .. . .. 9.18 32
Mass.Conservation Small watersheds
Districts Assoc.of.. .. .. .. . .... .. . . . .. .. . 4.10 13 Federal water projects . . . . . . . . . .. . .. 1 —. 9.09 31
Mass.Constitution . . . . . . . . .. . . . .. .... . .. .. 12.02 47 Purposes. . ... . .. .. . . . .. . .. . . . . . . . . . . . . 9.10 31
Mass. Forest&Park Assoc. . . .. .. . . . . . . . .. . . 11.08 45 Outdoor recreation . . . . .. . . . . . . . . .. . . . . . . 2.06 4
Mass.,money available .. .. . .. .. .. .. .. .. . .. 8.06 27 Sail Conservation
Mass.Self-Help Act,see Self-Help U.S.Service . . . .. .. .. . . . . . . . . . . . . . .. . . . 4.11 13
Meetings,kinds of . ... . .. .. .. . . . .. .. . . .. . . 3.07 6 address of. . . . . . . . . . , . .. . .. .. .. . . . .. . . . 9.09 31
Open. .. .. .. . . . . . ... . .. .. . .. .. . .... . . . 3.08 6 State programs . . . . . . . . . . . . . .. . .. . . . .. .. 8.06 27
Money,of Commission,see Budget Soil removal By-Law . . . . .. . .. . . . . . . . . . . . . . i0.21 39
Mortgages,discharge of .. .. ... .. .. . . . .. . . .. 5.03 14 Resource team . . . . . . . . . . . . . . . . . . . . . .. .. 4.08 13
Mosquito districts . . . . . .. . . ... .. .. . .. .. .. .. 10.23 39 Statutes,Chapt. 12
Subcommittees . . . .. . . . .. . .. .. .. . . . . . . .. . . 3.10 7
Natural beauty . . . .. . . . . .. . .. .. . . . .. .. .. .. 2.09 4 Subdivision powers . .. . . . . . . . . . . . . I. . .. 1. , 3.17 9
Defacing. . .. .. . . . . . . . . . . .. . . . . .. .. . . .. 10.18 38 Supervisors of Districts . .. .. . .. . . .. . . . . . . . . 4A2 12
57
Takings.see Eminent domain View,easement of .. . .. . .. . .. . .. ... .. . .. .. 6.03 21
Tax Collector . . . . . .. . . ... . .. . .. .. . .. . . . . . 3.25 11 land for. . . . .. . .. ... . .. . .. . . . ... .. . .. .. 6.09 23
Tax title land Volpe,S.&Co.,Inc.case . .. . . . . .. ... ... ... . 10.11 37
Foreclosure . . . . . . . . .. . . .. ... .. . .. . .. .. . 5.15 18 Votes,see Town meeting
Low value . .. . .. ... ... . .. .. . . . . .. . . .. . . 5.16 18 Water department. .. . .. .. . .. . .... ... ... . 3.24 11
Selection . . . .. . .. . ... .. .. . .. . . . .. . .. .. . 5.14 18 Water,Federal programs .. . .. .. . .. .. . .. . .. . 9.15 32
Registration of. . .. . . .. .. ... .. . .. I. . .. . . 5.19 19 Water,pollution control
Transfer of. . . . . .. .. ... . ... . .. . .. .. . . . .. 5.17 19 Division of. . . . .. .. . .. . ... .. . . .. .. . .. .. 8.12 29
Taxes Districts,abatement ... .. . . .. .. . . . . .. .. . . 8.13 29
Bargain sale .. . . . .. ..... . . . .. . .. .. . .. . .. 7.04 24 Special acts .. .. . .. . .. .. . .. . .. .. . . .. .. . . 10.20 39
Deferral plan . . . . .. . ... .. . .. . . ... . .. . . . 7,09 25 Water resources
Deduction from .. . .... . . .. . .. . . . .. . . . .. 7.03 24 General . .. . ... .. . .. . ..... . .. . .. .. . ... . 9.16 32
Easements . .. . .. .. . ... .. . .. . .. .. . . ... . . 7.08 25 Quality Act . .. . .. ... . .. . .. . .. .. . .. . .. . . 9.17 32
Cappital gain tax .. . . . .. . . . . .. . .. ... . . . . . 7.03 24 Supply . . ... . .. .. . . . .. . . .. ... .. . .. .. . . . 2.05 3
Gift tax . . . . . . . .. . . . ... .. . .. . ... .. . . .. 1 7.05 24 Watersheds
Income tax . .. . .. . .. .. . . .. .. . . . . . . .. . .. 7.02 24 Agreements.. . .. . .. . .. . .. . . . .. . .. . .. . .. 9.10 31
Life estate reserved . . .. .. . . . .. . . .. .. . .. . . 7.06 25 District help . . .. .. . .. .. . . .. .. . .. . .. . ... 4.07 13
Real estate taxes . .. . .. .. . .. . .. . . . . . . .. . . 7.07 25 Small(P.L.566) . . . . . . .. . . .... . .. . .. .. . . 9.09 31
Title to land Waterways,Division of. . .. . ... .. . .. . .. .. . . 10.16 38
Clearing . . .. . . . . .. . .. .... .. . . . .. . .. ... . 5.07 16 Wetlands
Eminent domain for . .. . . .. . .. .. . .. . . . . . . 5.20 19 Coastal Act . .. . .. . . . .. . . .. .. . .. ... ... . . 8.11 28
Name of town . . . .. ... .. . .. .. . .. . . . .. . .. 5.02 14 Discussion .. . .. . .. ... ... ... . .. . . ... . .. . 10.14 37
Registration of. .. . . . .. . .. . . . . . .. . ... .. . 5.19 19 Inland Act .. ... ... .. ... . .. .. . ... .. . .. . . 8.10 28
Town forest committee . .. .. ... ... ... .. . .. . 3.25 11 Discussion .. . .. .. . .. . .. ... . .. .. . .. . .. .. 10.12 37
Town as trustee . . .. . .. .... .. . .. . . . .. . . . .. . 5.05 15 Hatch Act . .. . .. . . . . .. .. . . .. ... .. . ... . . 10.16 38
. . .. .. . . .. ... .. . .
Town meeting Salt marshes . . .. .. . . .. .. . .. . .. . . . . . . .. . 10.13 37
Budget voted by . .. . . .. . . .. . .. . .. . .. . .. . 3.13 7 Sample By-Law . .. . .. . . . . .. .. . .. ... . .. . 13.06 53
Vote for Commission .. . .. . .. . .. .. . . ... . . 13.05 53 Statute,Coastal .. . .. ... .. . ... .. .. . ... .. . 12.06 48
Vote for purchase .. . ... . . . .. . . . .. . .. .. . . 5.06 15 Statute,Jones Act . .. ... . .. . . . .. .. . .. . . . . 12.07 49
Transfer of control . . . . .. . .. . .. . .. ... .. . .. . 5.21 20
Tree&Park Commission . . .. .. . .. . .. . .. . .. . 3.21 10 " " "
Yasi, Comr. Robert L. .. .. . .. . . .. . Foreword
Trust
Gift in . . .. . .. . .. . .. . . . .. . .. . .. . .. ... .. 5.05 15
Form of. .. . .. . .. .. . .. . . .. .. . .. ... ... . . 13.02 50 Zoning Power
Money ivenin . . . . .. . ... .. I .. . .. .. ... .. 3.12 7 Cluster. . . . . . .. ... .. . ... . . .. .. . .. 10.05 35
See lan trust Conservancy ... ... .. . .. . . . .. . .. .. . .. ... 10.10 37
Trustees of Reservations .. ... ... .. . .. . .. .. . 11.08 45 Constitutionality.. . . . . . . .. . .. ... ..... . .. 10.11 37
Flood plain,legal basis .. . .. . .. .. . .. .. . .. . 10.06 36
United States Limitations . .. ... ... .. . .. . . . .. .. . .. .. . . 10.07 36
See soil conservation See Wetlands
and Federal programs Bounding.. . .. . .. . .. ... ... . .. . .. . . . . . . . 10.09 36
Urban Beautification General .. . .. ... ... .. ... ... .. . .. . . ... .. .. 10.02 35
Addresses .. . .. . .. . . .. . . .. . .. . .. .. ... .. 9,12 32 Largelot . .. .. . .. . .. .. . . . . .. . .... ... .. . .. 10.04 35
Projects .. . . . . . . .. . .. .. . .. . .. . .. .. . . . . . 9.13 32 Limitations . . .. . .. .. . .. . .. . .. ... . . . .. .. . . 10.07 36
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