Judge finds for Chilmark in Hillman land swap deal


A Dukes County Superior Court judge has ordered the Hillman family to abide by the terms of an agreement signed in October 2007 with the town of Chilmark and the Martha’s Vineyard Land Bank, designed to create affordable housing lots and new trails.

In his January 23 decision, Superior Court Justice Gary A. Nickerson gave Howard B. Hillman and Elise Hillman Green, trustees of the Dora B. Hillman Trust, 30 days “to fulfill their obligation under the agreement.”

The legal issue began when the Hillman family tried to back out of the agreement two years after it was concluded. The case was heard last August. Lawyer Jennifer Roberts, who represented the Hillman family, argued that because the town had taken so long to conclude the deal it was no longer valid.

More than six years ago, the Hillman family, the Martha’s Vineyard Land Bank, and town of Chilmark concluded a three-way land swap agreement designed to create four new affordable house lots, new conservation land and trails in Chilmark, and consolidate the Hillman’s property holdings.

The complex arrangement involved land off Middle Road and land bordering South Road. It required Chilmark to seek town meeting approval and the town and Land Bank to seek approval of proposed conservation restrictions from the legislature. As time passed, Mr. Hillman wanted more money.

Taking the details of the agreement one by one, Judge Nickerson said, “All involved in drafting the agreement were sophisticated individuals aware of the inherent delays in dealing with the complex issues affecting the transfer of public lands. Everyone knew the prerequisites set forth on page 7 of the agreement, and the other conditions of the agreement, would require considerable time to perfect.”

Good news

Warren Doty, Chilmark selectman, said the court victory is the culmination of many years of effort.

“We’ve been working on a deal to give us four new resident homesites in town, in conjunction with the Hillman family and the Land Bank, for any number of years, and this court decision today really moves us along,” Mr. Doty said. “So we are looking forward to having new opportunities for young people to live in town.”

James Lengyel, Land Bank executive director, said, “The Land Bank is gratified by the judge’s decision as the plan, involving both conservation and affordable housing, is such a positive for both the town and the Island.”

“It is a terrific win for the town,” said Ron Rappaport of the Edgartown law office of Reynolds, Rappaport, Kaplan and Hackney. “It upholds what the voters wanted to do all along, which was to create affordable housing, join with the Land Bank to create a cross-trail link from Middle Road to South Road and preserve an old homestead. So we are thrilled with the outcome.”

Mr. Rappaport, a Chilmark resident, said the decision is still subject to appeal, but for the moment, it is a solid victory.

In an email Tuesday, Ms. Roberts said she had just received the decision that morning and would have no comment until she had an opportunity to review it with her clients.

Not naive

In his written decision, Judge Nickerson highlighted the public interest and said all parties went into it with their eyes wide open.

“The initial proposal was for the Town and Land Bank to deed the Engley property to the Trust in return for the Trust granting a trail easement along the easterly edge of the Engley property to the Land Bank and granting ten aces of Hillman land to the Town for affordable housing,” he wrote. “The Town has a strong interest in creating affordable housing. The ten-acre Hillman parcel is known as the Turner Lots and fronts on South Road, wholly apart from the Hillman farm on Middle Road. The Turner Lots are suitable for residential development. The Land Bank has a strong interest in securing a trail easement between Middle Road and South Road. Elise’s mother accurately described the balancing of the interests of the parties when she wrote: ‘The point is not in dollars and cents equality, but in the needs and satisfaction of each side.’

“Mom’s letter launched four years of negotiations between the parties, led on the Hillman side by Elise. Elise moved the transaction forward in the spirit of the quote just cited from Mom’s letter. Howard was more conscious of the dollars and cents. He realized the Turner Lots were more valuable than the public Engley property. He was well aware that it would take a substantial sum to rehabilitate the dilapidated Engley farmhouse. Nonetheless, he accepted the intangible benefits prized by Elise and realized there were probable tax benefits to be had from the exchange.

“The parties set to drafting an agreement. It should be well noted that the Hillmans and the representatives of both the Town and the Land Bank are sophisticated individuals well versed in the intricacies of property ownership and transfers. No one in this case is naive. What emerged from their efforts was a draft agreement, essentially along the lines of Mom’s letter. Before the Agreement was cast in final form and signed on October 1, 2007, all vetted the document with their own counsel.”

Complex swap

In the deal, the Hillman family agreed to give up land it owns on South Road. Part of that land, which is bisected by Ridge Hill Road, is to be used to create four one-acre, perpetually affordable housing lots.

The remainder of the South Road parcel will be owned by the Land Bank, nearly tripling its current acreage in the area. Trail easements that will create better access to the Tiasquam River Reservation are also part of the deal.

The reservation includes the stream, surrounding wetlands, and a ridge rising 175 feet above sea level.

A 4.8-acre parcel off Middle Road — part of which is now owned by Chilmark, and part of which is owned by the Land Bank — will be transferred to the Hillman family. The family currently owns an abutting parcel to the west.

Public passage over the Hillman property will be preserved by a trail easement. A trail will be moved from the middle to the edge of the family’s land.