The Massachusetts legislature is considering a bill that would change the way commissioners are appointed to the Devens Enterprise Commission (DEC). In so doing, they would be bypassing local approval provisions of Chapter 498 of the Acts of 1993 which established the Devens Regional Enterprise Zone (DREZ) and the DEC.

When Fort Devens was identified in 1991 for closure by the Department of Defense’s Base Realignment and Closure (BRAC) Commission, it triggered a process of planning for redevelopment. Taken by the Army from four towns (Harvard, Ayer, Shirley, Lancaster) nearly 80 years earlier, the land comprising the fort would have normally been returned to the towns’ jurisdiction. But the towns had neither the resources nor the management capacity to manage redevelopment, so the state stepped in, and via the Land Bank (now MassDevelopment), took ownership and development responsibility. Chapter 498 of the Acts of 1993 established the DREZ, the Devens Reuse Plan which laid out zoning and development plans, and the DEC to act as a fast-track, one-stop permitting and regulatory agency. These were interim actions, bridging to the time when jurisdiction could be returned to the towns. Recognizing “consent of the governed” as one of the most important principles of democracy, the legislation was passed subject to approval by simultaneous votes of the towns.

Knowing that the legislation, planning, and zoning might not be perfect, drafters of Chapter 498 included a procedure for making changes. That provision, which has come to be called “super town meeting,” requires that any change (beyond typographical error corrections) requires a simultaneous vote of town meetings in all three towns (the fourth town, Lancaster, was not included, because the Army kept the 4,000 acres in Lancaster, the Devens South Post).

The Sunset Act, with provisions to change the process of appointing commissioners to the Devens Enterprise Commission, would bypass consent of the towns. After 16 years, there may, indeed, need to be changes, but they should not be made without involvement and approval from the towns.

Letter from Rick Bernklow, Walnut Street, Devens

I am writing in response to the editorial dated Feb. 26, 2010. I object to the phrase “ … taken by the Army from four towns (Harvard, Ayer, Shirley, Lancaster).” By using the word “taken,” the editor is trying to inflame. In fact, the land for Devens was leased first and purchased by the Army in 1926. This fact is even detailed on the town website. Using the word “taken” is an attempt to perpetuate the myth that land was stolen from Harvard and the town is a victim of the government. Nothing about this assertion is correct.

Second, the statement that “when jurisdiction could be returned to the towns” is another error. There is nothing in Chapter 498 that states jurisdiction will be returned. Chapter 498 requires a study for permanent governance to be submitted to the Legislature before 2033. A simple check of Chapter 498 should have been a requirement before writing an editorial.

Finally, the tirade in the editorial is about losing control over the mechanism of changing Chapter 498. The “super town meeting” has been attempted twice to make changes to Chapter 498 and neither was successful. The loss of control asserted by the editorial is really a loss of the town’s veto. Harvard may not like the Legislature’s intrusion into its “local” affairs, but if more attempts at changing Chapter 498 are unsuccessful, then the only change will likely come from the outside.

Harvard has the luxury of living with Chapter 498; it does not endure the restrictions of living under it.

n the years beginning in 1917, the U.S. Army acquired more than 9,000 acres of land from landowners in the Massachusetts towns of Harvard, Ayer, Shirley, and Lancaster. Landowners were paid appraised market value for the lands acquired, but there was no compensation to the towns for loss of jurisdiction (and taxable revenue) as the Army closed roads that criss-crossed the area and erected walls and fences to delineate what became known as Fort Devens. In the nearly 80 years between the beginning and end of the Army’s occupation, the towns were affected to a greater or lesser degree by the Army’s presence, as businesses grew in the towns supporting fort personnel, and civilian jobs were created at the fort. School systems received funding from the Army to educate children of Army personnel. A significant number of fort personnel lived off-post in neighboring towns, contributing to growth in the housing market. By the time the Army announced in 1991 intention to close Fort Devens, more than 7,000 jobs contributed to the area’s economy.

According to Base Realignment and Closure (BRAC) procedures, the normal process for closing a military installation is to sell the land back to local ownership, and to return jurisdiction to the political entity from which it had been taken. Because there would have been multiple towns involved, and because of the size and value of the land, the state decided to step in and acquire the land by way of its Land Bank (now MassDevelopment), and in a multi-year process of involvement and collaboration with the towns and local interests, passed legislation (Chapter 498 of the Acts of 1993) that established the Devens Regional Enterprise Zone, the Devens Enterprise Commission (DEC), and the Devens Reuse Plan, as a framework for redevelopment and reintegration of Devens into the community. The legislature earmarked $200 million to be appropriated to support redevelopment―$120 million for improvements (roads, etc.) and $80 million to subsidize operations until the area could be self-sufficient. The legislation called for final disposition to be determined by 2033, nearly 40 years after the start of redevelopment.

Letter from Bill Ashe, edited for length in March 19 Press.

The Harvard Press’ Feb. 26 editorial challenged the proposed changes to Chapter 498 [re: Devens], and in so doing rendered a good overview of Devens goings-on over the past two decades. I found the editorial interesting, informative, and accurate. My compliments to the Press on a good job.

The following week, however, Devens resident Rick Bernklow wrote the Press with a negative opinion. He objected to the editorial saying that Devens land “was taken by the Army” and suggested that the word “taken” had been used in an “attempt to perpetuate the myth that land was stolen from Harvard and the town is a victim of government…” He also claimed that the editorial statement that “jurisdiction could be returned to the towns” was incorrect, and asserted, “nothing in Chapter 498 states jurisdiction will be returned…” Mr. Bernklow suggested that before writing the editorial, the Press editors should have done “a simple check of Chapter 498.” Perhaps. But Mr. Bernklow also needs to do his homework.

The U.S. Army acquired lands in the four area towns during and shortly after World War I. The land was acquired through eminent domain authority action and the process of condemnation. The entire process, as I recall, is generally referred to as a “taking.” The military’s general mode of land acquisition, a “taking” if you will, is used because it gives them an “exclusive jurisdiction,” which completely clears title and also permits them to override local and state jurisdictions.

Mr. Bernklow’s suggestion that the Press editors check Chapter 498 indicates to me a shallowness of understanding on the matters of Devens. Chapter 498 is but a part of its legal mosaic. To understand Devens matters one should also be versed in the implicit and explicit conditions of the Federal Real Property and Administrative Services Act, the National Environmental Policy Act, and the Army’s own conveyance document to the commonwealth.

I am struck by the concluding sentence in Bernklow’s letter—“Harvard has the luxury of living with Chapter 498; it does not endure the restrictions of living under it.” To make a statement like this, he must be unaware of the time and effort Harvard folks have spent to ensure a sound Devens development and community. Who, in the early years, stopped a poorly planned airport and a proliferation of warehousing? Who stopped MassDevelopment and the Devens Enterprise Commission from approving a large trucking facility near Harvard’s Old Mill Road neighborhood? Who stopped MassDev and DEC from approving a sludge plant along Barnum Road? Who stopped MassDev from rehabilitation of chemically contaminated houses on Grant Road and selling them in the private market? Who has insisted on the preservation of open space and the protection of Devens’ invaluable water aquifer?

The answer: interested citizens of Harvard and friends in nearby towns. I never saw Bernklow or and of his associates at any of these meetings. However, he now has the luxury of living in a quiet, pleasant community, compliments of the people of Harvard.

Do I hear a thank-you?

Bill Ashe
Myrick Lane