Saved: The Land of Herring Creek Farm Long and Tortuous Tale
By JULIA WELLS
It began with a suburban-style subdivision plan, polished like a shiny apple: Maximum density, 54 luxury homes, two beach clubs with swimming pools.
It ended last week with a record real estate sale and a subdivision plan of a markedly different color: Six new luxury homes added to five existing homes and a vast sweep of farmland saved forever.
But between the beginning and the end of the Herring Creek Farm story there is another story. It is a long story that spans more than a decade, a story written on countless Thursday nights before the Martha's Vineyard Commission, and in Boston courtrooms from the Massachusetts Land Court to the Massachusetts Supreme Judicial Court.
It is a David and Goliath story, a tale of two nimble attorneys who went up against a virtual army of highly paid Boston lawyers to defend both the town of Edgartown and the MVC in lawsuit after lawsuit - and won.
It is a story of an Island community united, a community that spoke with one voice in a way that had never quite happened before - and may never happen again.
It is a story of persuasion - careful, behind-the-scenes persuasion aimed at convincing at least a few members of the Martha's Vineyard Commission that if they voted in favor of a cluster subdivision plan for 33 houses - wink, wink - the subdivision would never be built.
And finally, it is a story of money - millions of dollars paid to design experts, lawyers, more design experts and more lawyers - and in the end, $64 million paid to farm owners Neil and Monte Wallace for the sale of the 215-acre farm.
A bargain sale, they called it.
In some ways, the Herring Creek Farm story is also the story of how Martha's Vineyard came of age in an era when conservation would come to mean something far more complex than simply saving the land.
In the fall of 1990, the Wallaces filed the first subdivision plan for the farm, an upscale, $55 million subdivision plan for the richly diverse Great Plains land fronting the Edgartown Great Pond, Crackatuxet Cove and the Atlantic Ocean. At the time the farm was a working farm whose mainstay was beef cattle. The Wallaces bought the farm in 1969 from the late Benjamin Harrison Cohan, a well-known gentleman farmer on the Vineyard in the 1940s and 1950s with vast land holdings. The property was one part of the Great Plains Farm owned by Ronold and Dorothy Wild.
The 54-lot subdivision plan was described as a necessary defense mechanism in the face of increasing regulations around the Great Pond.
"What is about to unfold is not just a subdivision. In my view, it's much bigger; it's a pattern of government intervention," said Stuart Johnson, a trustee for the Herring Creek Farm Trust who was the leading spokesman for the farm owners for the next 10 years.
For three and a half years, the 54-lot plan occupied center stage at the Martha's Vineyard Commission and in the town of Edgartown. The development plan for the farm was deliberately huge, and it eclipsed anything seen before on the Vineyard. Never before had the term "development of regional impact (DRI)" been so relevant.
"The project has been designed to retain the rural character of the site," declared a master plan prepared by Sasaki Associates, a well-known design firm in Watertown.
Public opposition to the plan was overwhelming - and unanimous.
There was another unusual wrinkle: Immediately after the plan was filed, the descendants of Benjamin Harrison Cohan announced that they held a covenant restricting any sale of the farm until the year 2010. The Wallaces had signed the covenant when they bought the farm in 1969.
Spokesmen for the farm trust at first claimed that the covenant was invalid, then later said they intended to honor it. The 1969 covenant was a key issue in the Herring Creek Farm story until the end.
While the 54-lot plan was under review by the MVC, there were skirmishes at the local level nearly every week. Edgartown town counsel Ronald H. Rappaport was the gatekeeper, rebuffing the Wallaces' attorneys repeatedly on local process issues and writing his own stinging critique of a set of draft conservation restrictions for the development plan. The Wallaces proposed a "development agreement" that would allow no development on the property for 10 years if the 54-lot plan was approved. Town officials flatly - and unanimously - said no.
The developers plowed ahead, and as the months wore on they began to salt both the public and private dialogue with threats.
In August of 1993, attorneys for the trust submitted a sweeping request for documents under the Freedom of Information Act, demanding an encyclopedic array of studies and correspondence covering subjects from the Edgartown Great Pond to town zoning to tourism and dating back for 20 years.
It was the most extensive request for public information ever received in the town, and it was the precursor to the three-acre zoning challenge that was filed in September of 1993, months before the Martha's Vineyard Commission voted on the 54-lot plan.
It was puzzling at the time, because the 54-lot plan did not exceed the three-acre zoning limit. Mr. Johnson said: "We are not going to roll over and play dead; this is the commencement of an exclusionary zoning suit."
In February of 1994, after an exhaustive and unprecedented review process, the MVC voted unanimously to reject the 54-lot subdivision plan.
"It's another farm that's getting whacked up into little pieces. The Great Pond is there, the farmland is going to be gone - that's not my idea of Martha's Vineyard," said commission member Leonard Jason Jr. at the time.
The Wallaces appealed the decision in Middlesex superior court.
Meanwhile, the stage shifted to the zoning trial.
The trial began in September of 1994 and closed in April of 1995. Joining Mr. Rappaport as lead counsel in the case for the town was Richard W. Renehan, a partner at Hill & Barlow in Boston and a seasoned litigator. On the other side of the table was a battalion of lawyers from Mintz Levin Cohn Ferris Glovsky and Popeo in Boston, including partner Jeffrey Robbins and associates Beth I.Z. Boland and Michael Connolly. The Hon. Robert V. Cauchon, chief justice of the land court, presided over the trial.
The atmosphere was often hostile, and at times it seemed there were no boundaries, as attorneys at Mintz Levin went on the attack. At one point they even attacked Judge Cauchon, demanding that he recuse himself from the trial.
Town attorneys had several winning moments at trial, but in the end the star witness for the town was Dr. John Teal, a coastal ecologist with the Woods Hole Oceanographic Institution who gave extensive expert testimony about the fragile ecology around the Great Pond.
In January of 1996, Judge Cauchon issued a decision upholding three-acre zoning. "[Three-acre zoning] preserves the Island's unique, natural, ecological and other values," the judge wrote in a 17-page decision. The judge took special note of Dr. Teal's testimony.
The Wallaces appealed.
The case was eventually taken by the Massachusetts Supreme Judicial Court.
Oral arguments were heard in February of 1997, and in June of 1997 the state's highest court issued its landmark ruling upholding three-acre zoning in the rural coastal perimeters of Edgartown. "There are regional and statewide interests in the preservation of the unique quality of Martha's Vineyard," the justices wrote.
For the Herring Creek Farm Trust, litigation was the predominant language. All told, there were seven lawsuits filed at a cost of millions of dollars. Some of it was gloves-off litigation that veered right to the edge of ethical standards.
The clearest example was the lawsuit the Wallaces brought against their neighbors, the late Michael Wild and his sister Rebecca, over a small family subdivision plan. This case was also heard by Judge Cauchon in the land court, and he ruled in favor of the Wilds, raising pointed questions about whether the attorneys at Mintz Levin had committed fraud on the court after an incident involving an expert title witness.
In 1998 the dormant appeal of the MVC decision on the 54-lot plan came to life again in Middlesex Superior Court. A trial began, but was put on hold when the trust decided to file a new subdivision plan for the farm.
After another review process that went on for two years but had comparatively fewer twists and turns, the commission voted 7-6 in November of 2000 to approve the 33-lot cluster plan, first eliminating provisions for a 250-member beach association.
The Wallaces sued over the decision to eliminate the beach association.
By this time it was also well known in local circles that the Wallaces had been actively marketing the farm.
Toward the end of the MVC review process on the cluster subdivision plan, spokesmen for the Wallaces began to quietly spread the word that a buyer was on deck. The buyer was described as a "white knight," and farm spokesmen conveyed the impression that the new buyer would not completely develop the 33-lot plan for the farm.
This proved to be true, and the "white knight" turned out to be an unusual group of buyers, including The Nature Conservancy, the FARM Institute and three private buyers.
The private buyers are Denise Lahey and her husband Roger Bamford, and late night talk show host David Letterman. They will live in private homes on the farm in the summer.
The Nature Conservancy now owns about half the farm, and will launch a massive sandplain restoration program in the 62-acre east field. The FARM Institute will run an educational agricultural program on 40 acres in the central field.
Six more houses will eventually be built around the pond for other private owners.
The Cohan descendants have taken ownership of two more houses and more land at the farm.
A long, litigious era, one that will always be linked with the Wallace brothers, has ended. At Herring Creek Farm, the next decade will be written in the fields of sandplain grassland circled by harrier hawks overhead.