“It was a hard-fought battle but a fair compromise on all sides.”
That’s how Bob Anderson, president of the Fruitlands Museum Board of Trustees, characterized the settlement agreement that ends litigation between the museum and the Harvard Zoning Board of Appeals. The settlement was contingent on Town Meeting’s acceptance of bylaw amendments to regulate museums in Harvard. Selectman Bob Eubank, who led the year-long negotiation between the town and the museum, stated the facts plainly at that meeting.
“If the bylaw [amendment] passes, then litigation ceases. If the bylaw is defeated, the settlement goes away,” he said.
After an hour-long debate, the amendment passed with only 14 opposed.
Bob Anderson, president of the Fruitlands Museum Board of Trustees, speaks to residents at Town Meeting. (Photo by Lisa Aciukewicz)
Aside from its part in ending litigation, the amendment will fill a void in current zoning, which does not define private museums, or specify them as an allowable, institutional use of a property. It allows Fruitlands to continue operating as it has for many years, as long as it follows the regulations of the amended bylaws, §125-2 and 16. For instance, the new regulations limit permanent seating to 100 and social event seating to 180, for a grand total of 280 seats. They also require that museums use restaurants only to “fund the[ir] operations.”
Liquor, food, and entertainment licenses will continue to be regulated according to state law, Chapters 138, 140, and 136. The licenses are granted by Harvard’s selectmen, with liquor and food licenses renewable annually, and entertainment licenses renewable either by event or yearly.
On Saturday, Town Administrator Tim Bragan said the town had spent about $17,000 in legal fees on this issue between 2006 and the present. Fruitlands has in the past declined to attach an exact number to its legal costs, except to say that it has spent more than $1 million in the past two years to address “septic, water, and zoning issues…”.
Origin of the dispute
Disagreement between the Harvard ZBA and the 210-acre Fruitlands Museum on Prospect Hill Road surfaced in 2006, when the museum sought to increase seating in its tea room from 75 to 100 and tent seating from fewer than 100 seats to 180. The museum applied for a building permit, saying its right to use and expand seating capacity was allowable as both an accessory and exempt use of the property. As an apparent backup strategy, the museum also applied to the ZBA for a special permit.
When the building inspector denied the building permit, the museum appealed that decision to the ZBA. In turn, the ZBA denied the appeal, agreeing with the building inspector and finding that the museum’s operation of the tea room and function tent was neither accessory (a strictly secondary use supporting its main mission) nor educational.
The museum objected to the premise and substance of the appeal decision and the special permit. It filed a lawsuit against the Harvard ZBA in July 2006.
Town Counsel Mark Lanza, speaking at a Planning Board hearing last year, summarized the central argument this way: “We’re saying [the museum as it exists today] is a prior non-conforming use that has expanded by special permits. Fruitlands’ position is that it is an exempt use, because it is educational.” Educational entities are regulated by flexible state and local regulations reserved for exempt uses, rather than by ZBA-controlled special permits or other standard local zoning rules.
In its decisions, the ZBA has adamantly denied the museum’s claim to educational status, either by Harvard’s existing zoning definition, or by the state zoning law, Chapter 40A, Section 3. With equal insistence, the museum has disagreed. Fittingly, the settlement agreement lets the parties hold fast to their principles, stating: “Nor shall anything in this Final Judgment be construed as a waiver by the Museum or the [Harvard ZBA] Board of their respective positions on the issues of whether the Museum’s use of its Tea Room and Tent and Patio is accessory to the Museum’s main use, and whether the use of the Museum, together with the Tea Room and Tent and Patios, is for educational purposes.”
Shape of the ATM debate
Debate on the question was dominated by current and past town officials. Chris Tracey and Joe Sudol, both members of the ZBA when it was sued, opposed the bylaw amendment. Tracey, current chairman of the ZBA, worried that the amendment would “provide permanent by-right business operation for museum restaurants.” Planning Board members Peter Brooks and Barbara Brady said Fruitlands ought to be regulated by a special permit instead of a tailor-made bylaw. Abutter Rhonda Sprague voiced her worst fears, saying “We’ll have 280-seat museums all over town.” Fruitlands could become, she added, “the Gibbett Hill of Harvard,” referring to a Groton restaurant that is not affiliated with a museum or other non-profit group. Still River Rd. resident Pam Cochrane responded with a reminder that the museum was “not just a place for functions” but a space for “teaching, cultural events, and art exhibition.”
Former selectman Bill Marinelli urged that the Planning Board, which sponsored the amendment, collect financial reports from the museum to ensure that the events and food service did not become a primary profit center. (The bylaw amendment allows food service and events only as a means to fund the museum’s primary mission).
In answer to Marinelli, Planning Board Chairwoman Mary Essary noted that Planning Board audits of the museum were “inappropriate and unwieldy.” “[The museum] is already heavily regulated by the IRS as a non-profit,” she said, noting that the reporting forms are in the public domain. From the floor, Stow Rd. resident and actuary Bruce Nickerson dismissed the notion of proliferating museum restaurants. “The idea of someone coming to town just to do a restaurant and get a liquor license is not realistic, because only a low proportion of a museum’s income is allowed to be generated by ancillary functions,” citing IRS regulations for non-profits.
Fruitlands trustee Bob Anderson also tried to allay fears of profiteering with what he said was a rough estimate of the museum’s budget. Out of about $1 million, no more than $225,000 came from the restaurant and rentals, he estimated. “If we exceeded that, we’d be in trouble with the IRS.”
On Tuesday, Fruitlands Executive Director Maud Ayson said the museum is pleased with the compromise and grateful to the town officials who worked on it, singling out the selectmen, Planning Board, and Zoning Board of Appeals. Ayson said the museum is focused on preparing its next exhibit, Forests Interrupted, for a May 4 opening.
