State reconsiders Ice House Pond plan

By Nelson Sigelman - April 12, 2007

It has been more than five weeks since the Martha's Vineyard Land Bank commission sent two letters to the Secretary of the Executive Office of Environmental Affairs (EOEA), describing the Island agency's belief that state roadblocks, attributable to insider influence, had affected the state's response to plans for the Land Bank's Ice House Pond property in West Tisbury.

Yesterday, a spokesperson for EOEA Secretary Ian Bowles said that all of the issues raised by the Land Bank are being actively addressed and that a detailed response can be expected soon.

Attempts to open the 12-acre Ice House Pond property, since renamed Manaquayak Preserve, to the public have resulted in a running battle between Land Bank officials and some private owners around the pond, as well as officials at EOEA.

In 2005, then-secretary Ellen Roy Herzfelder rejected the Land Bank's first Ice House Pond plan, the first time in the public land conservation agency's then 19-year history that the state failed to approve a submitted management plan.

In a letter dated July 24, 2006, new EOEA Secretary Stephen Pritchard approved a revised property management plan, but for the first time in 20 years, EOEA approval came with a set of conditions.

The most significant of the conditions places all responsibility with the Land Bank for maintaining the pond's current water quality, within limits set by the state. That includes measurements for nitrates and phosphorus, chemicals normally associated with septic systems and fertilizer.

The effort to understand, and fashion an effective response to, EOEA's unprecedented treatment of a management plan included enlisting the services of an environmental consultant early last fall.

In September, the Land Bank asked Kelly Durfee Cardoza of Avalon Consulting Group to examine documents, including letters and newspaper articles, associated with Ice House Pond.

James Lengyel, Land Bank executive director, told The Times this week that the Land Bank engaged Ms. Cardoza because it thought that an objective outside expert would be able to provide a helpful perspective on the state's unusual reaction.

Details about the work of the consultant were first made public in a story in the Vineyard Gazette, "Agency didn't follow its consultant's advice on preserve management plan," published on March 30.

The story reported that the Land Bank commission's decision to send the two letters to EOEA secretary Ian Bowles was out of step with Ms. Cardoza's recommendations, and the news report charged that the Land Bank had ignored the recommendation spelled out in two memos sent to Land Bank ecologist Julie Schaeffer.

Mr. Lengyel said the Land Bank did act on many of the recommendations in Ms. Cardoza's memos. He said it would be inaccurate to conclude from the memos that the Land Bank should not have sent the two letters to EOEA.

Mr. Lengyel said, "The two had nothing to do with each other."

He said, "The Land Bank wrote the letters after EOEA contacted us in response to an article in The Times reporting that the conditions would preclude swimming this summer."

Ms. Lengyel said the Land Bank has a good working relationship with Ms. Cardoza. While the Land Bank is under no obligation to act on all the recommendations she makes, he said it continues to consider them as it goes forward.

In a telephone conversation Monday, Ms. Cardoza said there is no question that her recommendations were well received. "What they asked for was another person to look at what they were looking at and give them feedback on it," said Ms. Cardoza. "I did not say to them, if you do A, B, and C, you will get D. I offered some insights and strategies to select from. I do not think it would be fair to say that they did not follow my advice."

Ms. Cardoza, who worked for the unsuccessful developers of the Meeting House Golf club project on Edgartown Pond, is well versed in the rough and tumble of Vineyard land use issues.

In a memorandum to Land Bank ecologist Julie Schaeffer, dated Oct. 12, 2006, (available here), Ms. Cardoza outlined her view of the points made in the approval letter from Secretary Pritchard. Click here for a memorandum dated January 5, 2007.

Ms. Cardoza recommended that she and the Land Bank discuss a strategy that included informal discussions with EOEA officials, including state biologist Tim Simmons; comparing historical water data to existing data; quantifying the costs associated with the Secretary's conditions; seeking additional local scientific expertise; and making the health of the pond a shared financial responsibility among all property owners and abutters.

Ms. Cardoza said a scientific review group that meets on an annual basis and provides feedback regarding management could balance the influence of Judith Lane and her husband Mark Mattson, the latter an EOEA employee, two people who figured prominently in the Land Bank's concern regarding insider influence.

In a follow-up memo dated Jan. 5, 2007, to Ms. Schaeffer, Ms. Cardoza responded to a Land Bank question about whether the comment letters were politically or scientifically driven. She wrote, "At this point in the process, I am not sure that it matters. Even if they are politically driven (which may indeed be the case), the Secretary is tasked with addressing the scientific facts and has chosen to address the topics of water quality, parking, and recreational use."

Ms. Cardoza said the majority of the comment letters claim to be scientifically driven and include statements of fact. "After reading the letters," she wrote, "I can only come to the conclusion that the commenters are attempting to discredit the work conducted by the Land Bank at every turn."

Ms. Cardoza said that based on current data, even without public use, the water quality limits adopted by the Secretary are "unattainable." She said the degradation of water quality has in part begun and was in fact due to the abutters and not the Land Bank.

Ms. Cardoza said the data provided an opportunity to reopen discussions with EOEA and to work with the abutters. She recommended that rather than continue to disagree with the abutters, the Land Bank start a process of engaging the stakeholders and the regulatory authorities so that the "studies, costs, actions and ultimate results are shared by all parties."

History of the purchase

The Ice House Pond purchase in November 2004 was accomplished through the use of a straw buyer in order to mask the Land Bank's interest from multiple sellers who, the Land Bank said, would likely not have sold to the public agency. The total purchase price was $2 million, and the sellers were Judith Lane at $1,250,000 and Nancy Schwenkter and Mary-Robin Ravitch at $750,000.

Ms. Lane is the wife of Mark Mattson, a limnologist in the state Department of Environmental Protection, one of the agencies that provided the recommendations that shaped the state conditions.

In letters to the Land Bank and EOEA, the husband and wife were highly critical of the Land Bank purchase and the management plan. Mr. Mattson, who works closely with state environmental personnel, repeatedly noted that his comments were those of a private citizen.

Several of the requests and arguments made by Mr. Mattson and Ms. Lane in letters to EOEA emerged in the conditions. In a letter dated June 20, 2006, Ms. Lane wrote, "The commissioners' continual insistence in the media that the public should be entitled to the same level of use as the surrounding homeowners is unprofessional and childish. Public lands almost always require more stringent restrictions than private, abutting lands as they have the potential for considerably more use."

The Land Bank decision to send two letters to EOEA began with the publication of a story on Feb. 8 in The Times that described the bind created by the state's water quality conditions and highlighted in Ms. Cardoza's memo, namely that the limits had already been or were close to being surpassed. After reading that story, Christy Edwards, EOEA policy coordinator, contacted the Land Bank and said that the conditions were not intended to prevent public use of Manaquayak Preserve. She invited the Land Bank to submit substitute proposals.

In a letter to EOEA Secretary Bowles, dated March 5, the commissioners, over the signature of Land Bank commission chairman Tom Robinson of Tisbury, asked the newly appointed Secretary to reconsider restrictions imposed by his predecessor in the Romney administration that would prevent the public from swimming in the pond at the same time that riparian owners use it for a variety of recreational and commercial uses.

The letter included two pages of text the Land Bank proposed to insert into the 2006 management plan, intended to address Land Bank and state concerns about the health and well-being of the pond.

Mr. Robinson also asked the secretary to investigate the issue of "inappropriate influence" exerted during EOEA's review of the Land Bank property management plan, in particular the involvement of Mr. Mattson.

The informal reaching out to EOEA officials recommended in the consultant's report led to a second stronger letter to Mr. Bowles. The exchange began after Mr. Robinson read a comment letter from Mr. Simmons to Christy Edwards, EOEA policy coordinator. As part of an e-mail message to Ms. Edwards dated July 7, 2006, Mr. Simmons wrote, "In my opinion the best solution for the long-term conservation of this habitat would be a belt and suspenders approach where another agency, more sympathetic to biological conservation, would hold a CR [conservation restriction] on the land."

In an e-mail dated Feb. 19, Mr. Robinson introduced himself and asked Mr. Simmons, "What did you mean by this? Do you think that the Land Bank does not do a good job of biological conservation? Keep in mind, almost every property the Land Bank buys would have otherwise been developed with little or no oversight. I would like to know your thoughts on this."

Mr. Simmons responded in an e-mail dated Feb. 19. "No mysteries there, Tom," he wrote. "The open hostility toward biological conservation by the MVLB has been palpable for decades. I am suggesting that two or more goals can be compatible and that all properties are complex and unique, ecologically, historically, culturally. There is more to planning the future of the Island than trails and recreation. I think the MVLB is a fine agency and has accomplished a great deal but all agencies can improve, be improved."

Mr. Robinson shared Mr. Simmons's response at a Land Bank commission meeting. It was the clear consensus of the commissioners that Mr. Simmons's critical view of the public land conservation agency and its goals made him unsuitable for reviewing management plans. The commissioners decided a strong response was warranted, Mr. Robinson explained.

In a second letter to Mr. Bowles, Mr. Robinson said that the comments by Mr. Simmons show "unreasonable and unfounded bias on his part" against the Land Bank. In an unprecedented action, Mr. Robinson requested that Mr. Simmons no longer be allowed to review or comment on Land Bank management plans.

Aquinnah Land Bank commissioner Carlos Montoya expressed the only dissent. After reading a copy of the letter, Mr. Montoya said that while he shared the commissioners' concerns, a more diplomatic approach was warranted.

This week, Land Bank ecologist Julie Schaeffer rejected any notion that the Land Bank spurned the recommendations in the consultant's report. She said that at the time the Land Bank received an e-mail from Ms. Edwards, Ms. Schaeffer was gathering names of people who might sit on a scientific review committee.

Ms. Schaeffer said Ms. Edward's memo basically reopened the discussion with EOEA, exactly what Ms. Cardoza's memo recommended. She said the two letters sent to EOEA did not preclude following up on any of the other recommendations and spoke to the need to rely on local expertise, including the board of health.

Ms. Schaeffer said she recently sent more data to EOEA to back up her argument that linking swimming by Land Bank visitors to state water quality goals misses the mark. The Land Bank does not have a septic system or lawn, she said. "There are so many other influences that the Land Bank can't control," she said.