Bill To Help Windyhurst Farm Turns Into Hornet’s Nest

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Windyhurst Farm in Westmoreland


CONCORD – Saying he did not want to again mow over a hornet’s nest, the sponsor of a bill that opponents said could have broadly changed the definition of conservation easements in the state was amended to become a study committee Tuesday.

State Rep. Paul Berch, D-Westmoreland, the sponsor of House Bill 82, said he had apparently mowed over a hornet’s nest in taking on the issue. His original bill had one supporter registered for the hearing and 286 opponents listed.

It was heard before the House Judiciary Committee of which Berch is a member.

A conservation easement is a contract between a property owner and a state or charitable organization aimed at protecting land in exchange for money.

The deal is to be perpetual and hundreds of thousands of open space acres in the state have been protected this way since the 1970s.

The state’s conservation community emptied the bench to say “no” to the bill Tuesday, arguing these are permanent deals. However, many expressed support for the idea of a study, particularly to look at old easements created before the legislature defined “agritourism” and allowed for it in more recent documents.

Berch said he brought it on behalf and at the request of Windyhurst Farm in his district in Westmoreland, which is having problems keeping its “cruise nights” of classic cars in the fields because of the wording of an easement given to the state’s Land Conservation Investment Program in the 1980s.

Easements are the backbone of the state’s open space and it is essentially a contract to keep it open forever.

Alisha Adams Powell, speaking on behalf of her family’s Windyhurst Farm, described a multi-generational operation with 250 cows and a maple sugar business plus a restaurant on the side.

Most of the land is protected under the 1988 easement the family entered into with the state’s LCIP. But the third party holder of the easement which oversees the easement rules, said cruise night events are not allowed under his reading of that easement.

“Cruise nights” involve the owners of classic cars parking in a farm field, Powell said, where no fee is charged but has enhanced visitation to the sugarhouse and farm.

But because it also benefits the family’s restaurant, this use is inconsistent with the easement, she was told.

Attempted mediation with the holders of the conservation easement was “extremely unproductive,” and after 15 years, it is now disallowed.
Powell said she went to NH Agriculture Commissioner Shawn Jasper, a former legislator, and he suggested a legislative solution.

She said the easement pre-dates the definition of land under a conservation easement before “agritourism.”

“It would be great if it could be put in a study committee,” Powell said. “Otherwise we are not finding help for anyone to work with us…on an issue that seems pretty common sense.”

The Windyhurst document is not the only one inked by the LCIP, a precursor of sorts to the current and wildly popular LCHIP or Land and Community Heritage Investment Program (which transfers revenues from real estate transfer taxes to preserve land and historic buildings).

These easements drawn in the 1970s and 1980s and aimed to protect open space, do not incorporate the new state definition of agritourism, but there is no way to change it without legislation, she argued.

Berch said when he filed the bill on her behalf, he had no idea what he had done. “Boy, did I not know what I was stepping into…Little did I know it was like mowing over a hornet’s nest,” Berch said, noting he had done that once in the past in a field and “I don’t want to do that again.”

He said it has resulted in a pile of letters that his fellow committee members received and thus the amendment to turn the bill, here, into a study committee.
The language of the study committee is not yet available online.

Many stakeholders in the state’s conservation easement community opposed the bill and noted caution when messing with these charitable trust documents. At least if it goes to a study committee, said Judith Spang, a former legislator, it should have parameters.

Many conservationists admit that these early easements are problematic, Berch said, but no one wants to deal with it. There is a remedy through the Attorney General’s Office, however, and the office gets about a dozen such requests a year, and not all turn out in the favor of the appellant.

Conservation easements are perpetual and if changes are allowed fewer will want to enter into it, argued Kristina Snyder on the Chester Conservation Commission.

“One of their biggest fears is that their wishes will be changed down the road. The way this original bill was …we would see people less and less inclined to donate an easement,” she said. “I hope that is taken into consideration,” if a study committee emerges.

Paul Doscher, formerly of the Society for the Protection of NH Forests, who has written numerous conservation easements over the years offered a letter in objection to the original bill.

But if there is to be a study committee, he said he would recommend strongly the participation of those who have been in the practice of writing such easements.

Thomas Masland, an attorney in Concord representing people in easements over the decades, said he believes a robust and rigorous review could be helpful.

Barbara Richter, executive director of the NH Association of Conservation Commissions, said the bill as drafted could cause a lot of complicated lawsuits for towns and be a great legal expense for communities, mostly because of the broad language of the original bill.

New Hampshire has already determined natural areas to be in the public good and uses public resources to buy these easements with the proviso that they forever protect the land.

Richter said “we want to support farms” and believe conservation easements continue to be a tool for them to plan for the future, reduce costs or purchase land.

Jack Savage, president of the Forest Society, which holds 750 conservation easements covering 130,000 acres across the state and was instrumental in making conservation easements possible in the 1970s to today, said he opposed the bill as written but would support a study committee.
“If this goes to study committee it needs to take a broad look at existing law and whether there is a reasonable process,” he said.

He said the bill has a number of unintended consequences which include one that brings the federal Internal Revenue Service into play.

Attorney Tom Donovan, the state Department of Justice’s director of charitable trusts, said he supported a study committee.

“I think that some good can come out of it,” he said. “This easement is complicated because it is an old LCIP trust…I don’t want people to think a legislative fix is going to solve all of Windyhurst’s problems.”

Sheila Vargas of the Nature Conservancy which since 1961 has worked with partners to protect  294,000 New Hampshire acres said, “you have all heard why this is a bad bill,” but she said her group would oppose the study committee.
“The office of Attorney General has a clear and well-established process of resolving problems,” she said.

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