WHEN Meryl and Sidney Schwartz, 71-year-old retirees,
decided to develop the five-acre parcel of land next to
their vacation home in Richmond, Mass., they never
expected to become locked in a bitter two-year battle with
the town's Conservation Commission. So far, the conflict
over their project has cost the Schwartzes $25,000 by
their own estimate, with their builder spending an
Already, the Schwartzes' proposal has been scaled down
from two homes to one; the designs have been redrawn at
least a dozen times; and the storm-water management plan
has reached such a level of complexity and expense that
James M. Scalise II, the engineer who devised it, calls it
''the kind of thing I would normally design for a
Wal-Mart, not a private home.''
And the project is still awaiting approval by the
Conservation Commission; a yes vote is expected at a
hearing to be held on Tuesday night.
The cause of all the controversy is a little-known
environmental regulation called the Berkshire Scenic
Mountain Act, a bill passed by the Massachusetts State
Legislature and adopted by the town of Richmond in 1974 to
protect its watershed resources and preserve the scenic
qualities of the mountainous area. Towns are not required
to comply with the act, and only 4 of the 31 towns in the
Berkshires have adopted it.
In Richmond, landowners who hope to build in a
protected mountainous zone must meet a number of
guidelines: Their projects must not be visible above the
ridge line, tree-cutting must be limited to one-quarter of
an acre and it cannot cause erosion or flooding that would
damage water quality.
Town officials said that the proposal by the Schwartzes
failed on all three counts. The couple countered that the
Conservation Commission has been overzealous in its
Richmond is only one of a number of towns across the
country with a large population of second-home owners
where these kinds of conflicts are playing out. As land
grows scarce in popular weekend communities, the forces of
development are increasingly coming up against
preservationists trying to protect the verdant hillsides,
pristine streams and woodland vistas that drew vacationers
in the first place. Although there is no tally of similar
zoning restrictions nationwide, ordinances that restrict
hillside building are fairly common, particularly in
western ski towns like Sun Valley, Idaho; Park City, Utah;
and Jackson Hole, Wyo.
But unlike the Berkshire Scenic Mountain Act, the
regulations typically found in the West do not link
mountaintop protection to wetlands conservation, a fact
that makes those rules easier to interpret and thus to
In Salt Lake City, for example, open space legislation
put into effect in 1994 to limit urban sprawl restricts
building in the foothills of the Wasatch Mountains, citing
the need to protect the visual qualities of the mountains
themselves. The scenic views are considered an economic
asset and a tourist attraction, said Deeda Seed,
communications director for Mayor Rocky Anderson.
As second-home ownership continues to grow --
statistics released last week by the National Association
of Realtors said 13 percent of all houses sold in 2004
were vacation homes, for a total of 1.02 million
properties -- tensions are only likely to rise.
''The countryside is rife with conflicts over the use
of land now that agricultural land is less productive,''
said Alexander von Hoffman, a senior fellow at Harvard
University's Joint Center for Housing Studies in
Cambridge, Mass. ''The other force is that with the
affluence created over the last 20 years, Americans are
willing and able to indulge their love of rural scenery.''
Indeed, according to a study of second-home ownership
by Professor von Hoffman's colleagues at Harvard, second
homes account for about 5 percent of all residences in the
United States. Their density in the Northeast is much
higher. As of 1990, one-fifth of all second homes in the
United States were concentrated in only 20 counties, most
of which were in Florida or near the Boston, Los Angeles,
New York, Philadelphia or Phoenix metropolitan areas. Half
of all second homes in the country were found in a mere
150 counties in those areas. Such a high concentration in
such a small number of towns sets the stage for
particularly ugly showdowns, like the one in Richmond,
where nearly one-quarter of all homes are seasonal.
Although this is the first challenge to the Scenic
Mountain Act in the Berkshires, these tensions are common
all over the region as popular second-home communities
strive to balance environmental and aesthetic concerns
with the desire of new homeowners to build ever grander
private residences. In Monterey, Mass., one letter writer
complained to the local paper of trophy houses that ''hang
from the hills like so many Dracula's castles.'' A bit
farther south, in Lakeville, Conn., plans to build a large
lakeside home on the site of a much smaller structure led
to cries of ''Hamptonization'' on the part of town
residents, although the house was eventually built.
In Richmond, the dispute has matched neighbor against
neighbor; town meetings have been reduced to shouting
matches; and the Scenic Mountain Act itself has become a
political lightning rod.
It has also served to reveal the fault line that has
long run invisibly between the town's full- and part-time
residents. Mr. Schwartz says that the seven-member
commission is biased against second-home owners. ''It's a
clear case of nimby-ism,'' he said. ''They have a stake,
and they don't want anyone else to have one.''
For her part, Holly Stover, the chairwoman of the
Conservation Commission, has suggested that native
Richmond residents are better stewards of the land than
newcomers. ''The owners are part-time, with not the same
interest as the town,'' she said, speaking of the
Schwartzes. ''Their neighbors are full-timers who were
brought up in Richmond. Their grandparents and
grandparents' grandparents lived here all their lives.''
The Schwartzes and Kurt Hoelter, their builder, first
applied to the commission for a building permit in July
2003. Their initial plan was to build two houses with a
shared driveway set into a plateau on the hillside. This
plan was immediately unpopular with the Schwartzes'
neighbors, because of the placement of the driveway. For
that reason, in 2004, the project site was moved closer to
Osceola Road and reduced to a single house on 2.5 acres,
with the other plot to be donated to a local
land-conservation group for tax purposes, a solution that
muted most of the community opposition.
BUT the Conservation Commission still refused to grant
a building permit, citing concerns about drainage and
flooding from storm water runoff that might damage wells
and springs below the site. The committee also suspected
that the plan would require more clear-cutting on the site
than Mr. Hoelter originally contended and that the
blasting might disturb the water table, which is unusually
shallow in that area of Richmond.
''We didn't think the heavy machinery could even come
down the hill safely to dig the trench,'' Ms. Stover said.
At the next meeting, the Hoelter-Scalise team proposed new
plans: one to deal with runoff during construction,
another to address landscaping issues previously raised by
the committee in earlier meetings. But they were still
After nearly a year of fruitless negotiation with the
town, Mr. Hoelter appealed to the state, the first time a
challenge has been filed since the Scenic Mountain Act
took effect. The case went to the Massachusetts Department
of Conservation and Recreation, which last fall ordered
another round of talks between the sides. The commission's
most recent conditions, sent to Mr. Hoelter in January
after a tense public hearing in December, place 15
restrictions on the project, including the length of time
that soil can be exposed at the construction site, the
height and placement of outdoor lighting, and even the
color paint that must be used on the finished house in
perpetuity (earthy tones of brown, gray or green are
specified). It also lays out 60 general conditions for
mountainside developments. Ms. Stover said that the
guidelines would prevent erosion and make the finished
house less visible.
And even though Mr. Hoelter and the Schwartzes are
expected to accept the restrictions at the coming meeting,
Mr. Hoelter worried that some of the provisions exceeded
the purview of the Scenic Mountain Act. ''It becomes a
land-taking issue,'' he said, noting that the Schwartzes
have paid taxes on their property as a buildable lot for
the last 30 years.
The case has highlighted several unforeseen
consequences of this kind of environmental law. In
Monterey, Mass., where the legislation was adopted two
years ago, clear-cutting accelerated in the months before
the law took effect, as developers raced to prepare lots
while they still could. And as buildable land becomes
scarcer in areas protected by this kind of law, the cost
of housing rises substantially, forcing many local
families out of the housing market entirely.
Indeed, across the country, opposition to environmental
regulations like the Scenic Mountain Act is growing. The
Colorado Northern Front Range Mountain Backdrop Protection
Study Act, a bill introduced by Rep. Mark Udall, Democrat
of Colorado, that would have prohibited development in the
Front Range of the Rocky Mountains, failed to pass in the
108th Congress. In November in Oregon, a state that has
some of the strictest environmental protection in the
nation, voters passed Ballot Measure 37, which provides
compensation or exemptions to property owners whose
investments have been hurt by restrictive zoning.
Even though Richmond is already one of the most
expensive towns in the Berkshires, Mr. Hoelter says that
the opposition to his project may backfire on Osceola
Road. With all the costs associated with getting the
project approved, the house that will eventually be built
there is more likely to look like ''cheeseburger than
filet mignon,'' he said.
And Ms. Stover agreed that a house at that site would
be much less visible to neighbors if it were set back on a
plateau, as in Mr. Hoelter's quickly rejected original
But whatever the final aesthetics of the place, along
with the Scenic Mountain Act, it's something the neighbors
will have to live with for a very long time.
Published: 03 - 11 - 2005 , Late Edition - Final ,
Section F , Column 3 , Page 1