This is a response to an unsigned editorial published Monday 5 October 2009 in the Western Herald concerning Western Michigan University’s designs on the Colony Farm Orchard.  Since it was unsigned, it’s presumably the official position of the Herald Editorial Board.  My response was published in the Herald on Monday 12 October.  The version here is slightly modified from the published version.

A small stream in the springy area at the north end of the Colony Farm Orchard. Photo by Richard Brewer.

A Herald editorial endorsed WMU’s attempt to turn the protected Colony Farm Orchard into an annex of the BTR park.  After a kind of cost/benefit analysis the Herald concluded that the university would make a bunch of money.  Just four quick points:

1. Since WMU paid nothing for the land (bought by the state with taxpayer money), WMU ought to be able to sell it at a profit.  Who couldn’t? The BTR park has done well–or so we’re told. WMU never provides cash flow figures.

But the BTR park opened near the beginning of one of the biggest booms, or bubbles, in U.S. history. The Dow Jones Industrial Average went from below 10,000 to over 14,000 between 2001 and 2007.  Then the economy crashed and burned. By early 2009 the Dow dropped below 7000; the wealth that people thought had been created disappeared.  Today the Dow is struggling to get back to where it was in 2001.

The current BTR Park has three unsold lots and at least two vacancies, plus the soccer field which remains to be developed.  It may be years before new lots in the Annex are needed.  Or they may never be needed.

2. People like me who want to save the Orchard do not object to WMU making money.  Most public universities, including WMU, have been so starved by state government that to stay in operation they need to beg, borrow, and accept grants and contracts from large corporations that do not have the public good uppermost in their minds.  But there are lines that should not be crossed.  WMU crossed the line with their Colony Farm Orchard plans.

3. The idea that WMU deserves credit for protecting the Asylum Lake Preserve is fantasy.  Its protected status is the outcome of a long, intense battle all through the 1990s between the WMU administration on one side and many people on the other.  Among the WMU opponents were the Asylum Lake Preservation Association; neighborhood groups; an active, vocal group of WMU students; assorted conservationists and environmentalists; and, toward the end, the Michigan Senate following the lead of Senator Jack Welborn.

As late as 1998 when the chance of a business park on the Asylum Lake property and the Orchard was long dead, the WMU administration was still trying to turn the Asylum Lake property into a golf course! WMU lost. This land became the Asylum Lake Preserve.

4. The editorial mentions Aldo Leopold’s land ethic. Adherents to the land ethic will be opposed to WMU’s plan, but you don’t have to be an environmentalist to know it’s not right.  That follows from an older, easily understood ethical principle, the idea that we keep our promises. This is the first reason why WMU should not try to overturn the dedication of the Orchard as open space. A conservation reason is not far behind: How can conservation land ever be secure if the promises of protection by land holders such as the government and the university mean nothing?

Will those who come after us at WMU say of the current leadership, They kept the faith? Or will they say, They betrayed a trust?

Wednesday afternoon, 30 September 2009, the Appropriations Committee of the Michigan Senate approved the bill that would eliminate the conservation restrictions contained in the original conveyance of the state-owned land called the Colony Farm Orchard to Western Michigan University.  That language is “Western Michigan University may utilize the property solely for public park, recreation, or open space purposes, except that the legislature, by statute, may authorize Western Michigan University to utilize the property for some other public purpose.” The bill goes to the full senate, where it is being fast tracked to be taken up at its next session, Tuesday 6 October.

Removing the public purpose restriction will be necessary if WMU is to do what it claims is its goal–to expand its BTR (business, technology, research) park to the Colony Farm Orchard

Within minutes of the vote, WMU’s Senior Vice President for Advancement and Legislative Affairs Gregory Rosine called from Lansing to let the Kalamazoo Gazette know the news.

The story appeared in the Thursday paper, to the consternation of conservationists who have been working to retain the restrictions keeping the land for public purposes.  “Outraged” probably best characterizes the reactions of people I’m in contact with.  This was not because there had been strong expectations that the bill would be defeated.  Since the Appropriations Committee reflects the Senate composition, it contains eleven Republicans and seven Democrats.  Many of the arguments against the WMU action are conservation-based, so few Republicans were expected to oppose the bill.

The hope was that the local senator, Tom George, though a Republican, would be swayed by conservation arguments contained in the many letters sent to him and to the Gazette.  If he opposed the bill,  his colleagues might follow his lead because of his position as the senator from the affected district.

No, the reason for the outrage was that local conservationists expected to be able to attend the Appropriations Committee hearing and make their case for retaining the Orchard, perhaps along with other environmental groups and others who understood the seriousness of the issue.  None was able to attend the hearing because the bill was added to the Wednesday agenda without advance notification and passed within the same meeting.  The lack of notification extended to the Asylum Lake Preservation Association (ALPA) vice president who had signed up for automatic notification of the bill being placed on the committee agenda.  In fact, at 4:55 AM Friday 2 October, the day after the bill had been passed by the Committee, the message from the legislative website update@legislature.mi.gov said of HB 5207, “Last action: 9/21/2009 REFERRED TO COMMITTEE ON APPROPRIATIONS”[caps in original]

One might think that Senator George,  having noted the letters from his constituents, might think, “Hey, I bet all these people interested in this Colony Farm Orchard might like me to shoot them an email that it’s now on the agenda.”  If he thought that, he didn’t act on the thought.

ALPA, and everyone else, were caught flat-footed. Rumors that the meeting was occurring leaked out on Wednesday afternoon, but few organizations would be able to get to Lansing with persuasive testimony on the spur of the moment, and none did.  When I heard such a rumor, I searched every relevant legislative website and found no mention of HB 5207 being taken up by the Appropriations Committee.  I checked again the following morning–again,the day after the committee had approved the bill–and found no mention even of a changed agenda, let alone passage.

I have heard of other cases in the Michigan legislature of schedules being set so as to put opponents at a disadvantage.  Opponents usually are the other party, but often enough the sides are more complicated; that was the case in the Wednesday afternoon debacle.  The quick-snap in football is an acceptable tactic. In government, such goings-on violate American principles of fairness at the most fundamental level.

Businesses, local governments, and many state agencies have strict requirements to provide public notice for virtually any action in which the public or other parties might have an interest.  Society functions better as a result.  But in the Michigan legislature, there seem to be no penalties–only rewards–for keeping opponents and the public in the dark.

If Senator George read the letters sent to him, he was not swayed.  The Gazette article reporting the committee action quoted him as saying that “job creation” was the reason he voted for the bill.  He also said the BTR park is “one of the few examples of successful job growth in the city of Kalamazoo and in the state of Michigan, for that matter.”

Few Republicans will vote against job creation no matter what negatives may be attached or how bogus the claim. Few Democrats either, these days.  It’s possible that advocates for retaining the Colony Farm Orchard as open space should analyze the BTR jobs claims and other self-congratulatory marketing points. For example, just how many jobs is it that the WMU business park has created?

President John Dunn in his Gazette Viewpoint used a figure of more than 1300, but of these, according to other marketing pieces, 682, a majority, were “indirect salary creation.”  I’m not sure what this means, but I don’t think it’s people working shifts at the BTR park.  The larger question is, Has the BTR park created any jobs at all?  How many of these more than 1300 jobs were already around the area or were jobs that, had the WMU BTR park not been available, would have ended up elsewhere in the county–possibly at a facility set up by private enterprise.

The facts are difficult to get; the overriding fact is that the whole process WMU has followed in pursuing the stripping of the Colony Farm Orchard’s restrictions has been almost fact free. The closest thing to a analysis of the BTR park I’m aware of is an online comment (23 September 2009) of Dunn’s Viewpoint by someone signing himself evadrepus.  It’s a good start and deserves wider attention.

The unwillingness to provide facts is part of the general opacity of the whole process. When the question of pros and cons of the Colony Farm Orchard relative to various other obvious options comes up, WMU says…nothing. I have concluded that nothing means, “We will develop the Orchard, because you can’t stop us.”  A further translation is that “because you can’t stop us” means “the legislature will let us.”

I had almost reached this conclusion about a month ago.  The leaders in and around WMU had concluded that the Colony Farm Orchard was a slam dunk.  The economy/jobs argument was compelling, nobody cared about this insignificant sliver of land, it wasn’t being “utilized.”  But I still thought that something besides a simple case of hubris must be involved to account for the resoluteness with which the Colony Farm Orchard was being pursued.

The reason I now understand is an obvious one.  Money.  The land, bought a good many years ago by the state with tax-payer dollars, came to WMU free.  But unfortunately it came with a public use restriction.  By getting rid of that restriction (which was not a condition of the University Farm property that became the current BTR park), WMU can turn the Orchard into a few lots, perhaps 3-5, and sell them for a total of perhaps $3-$5 million.  This is a nice sum, and it’s pure profit.

The same answer explains one of the companion bills that Representative Bob Jones introduced, the one having to do with the former TB sanitarium.  Because my main interest in the WMU’s actions has been the protection of conserved land, I haven’t bothered to write about the sanitarium bill. I’ll wait to take it up another time, but it’s an even more clever legal maneuver.

It’s not impossible that the full Senate will reject the lifting of restrictions next Tuesday, as the full senate in 1993 was poised to do.

It’s not impossible that Governor Jennifer Granholm will veto the bill if it reaches her.

If neither of those things happen, then barring litigation, it seems likely that the open space/public use restrictions will disappear.  They would have lasted, not the perpetuity that conservationists hope that conservation lands will endure, but about 32 years.  This is figuring from the fall of 1977 when the Welborn brothers of Kalamazoo, one a senator, one a representative, added the Orchard to the adjacent Asylum Lake property (conveyed with similar restrictions in 1975) to give WMU the care of 329 acres of dedicated open space.

So, would this be the last go round for the Colony Farm Orchard?

Maybe not.

The loss of the legal restrictions would be a serious loss, making destruction of the Orchard much simpler in the future.  But even so, the conservationists and environmentalists of the state may stay in the game.  Even if they lose this go round, they may not yet be willing to let their deal go down.

On Thursday 17 September 2009, in the Michigan House of Representatives, Robert Jones’s House Bill 5207 was read a second time, placed on third reading, placed on immediate passage, read a third time, passed and given immediate effect (Yeas 105 Nays 2), title amended, and transmitted to the Senate.  It all happened fast, though perhaps not as fast as its supporters in the Western Michigan University administration and  board have been hoping. Its passage by the House was recorded in the Kalamazoo Gazette.

In the Senate on Monday 21 September, the bill was assigned to the Appropriations Committee.  This committee consists of Senators Jelinek (C), Pappageorge (VC), Hardiman, Kahn, Cropsey, Garcia, George, Jansen, Brown, McManus, Stamas, Switalski (MVC), Anderson, Barcia, Brater, Cherry, Clark-Coleman, and Scott.  Of these, the most important for the future of the Colony Farm Orchard is Senator Tom George.

Everyone who believes that the Colony Farm Orchard should remain as dedicated open space might want to contact Senator George and ask him to make it so. His email address is sentgeorge@senate.michigan.gov

Following is a letter I sent to Senator George last night.

Dear Senator George–

What happens to the Colony Farm Orchard is now in your hands. Since the land is in your district, colleagues in the Senate will follow your lead. If the Senate votes not to remove the restriction placed on it when it was conveyed to WMU in 1977, the land will stay open space as was intended.

Removing the restriction (Western Michigan University may utilize the property solely for public park, recreation, or open space purposes, except that the legislature, by statute, may authorize Western Michigan University to utilize the property for some other public purpose) would be needed to convert Colony Farm Orchard (henceforth, the CFO) from dedicated open space into a new section of the so-called BTR Park.

The situation is an almost exact rerun of the attempt by WMU in 1990 to convert the CFO into phase 1 of a research and business park.  The Asylum Lake Preservation Association was founded soon afterwards, and a lengthy battle between WMU and the majority of the citizens of the region began.  The conflict came to a head in spring 1993 when the House passed a bill adding “or a business, technology, and research park” to the list of allowed uses for the CFO.

The bill went to the Senate Committee on State Affairs in April 1993. Prolonged, caustic discussion showed that the Committee understood what the intent of the legislature had been in the original conveyance and also showed that the members did not consider the BTR park a public purpose. On April 22, 1993, the Committee adjourned without action, but it was clear that, if a vote were to be taken, the new language would be rejected.  President Diether Haenicke realized that the battle was over and pulled the plug on the whole development proposal on May 3, 1993.

Eventually, a BTR park was built on the University Farm, which had been given to WMU without restrictions in 1959.  The Asylum Lake property, conveyed to WMU with restrictions identical to the CFO, was set aside as the Asylum Lake Preserve.

One major reason why the bill coming to the Senate in 2009 should be defeated is the damage it does to the idea–and ideal–of land conservation.  When government bodies set aside land for open space, the citizens and the local governments should be able to count on it.  They make later decisions with that status as a given; it should only be altered out of critical necessity.

There are also many specific arguments why this particular land should be left pretty much as is and not sold off for commercial development.

Apple trees at the Colony Farm Orchard. Photo by Richard Brewer

1.  The land functions as part of the adjacent Asylum Lake Preserve.  Its wooded areas, thickets, grasslands, and wetlands enlarge the sanctuary, making the whole more diverse and more stable, in accordance with well-accepted conservation biology principles.

2. The CFO should be saved for its own sake, for its historic significance as part of the tall-grass Genesee Prairie and the Colony Farm experiment itself.  It is also of value for the wildlife species that live more safely here than at the heavily visited Asylum Lake Preserve. It is a high quality migratory stopover site for birds.  Also the vegetation and soil is steadily sequestering carbon.  Most of this stored carbon would be returned to the atmosphere as carbon dioxide if the development proceeds.

3.  There are numerous reasons why the CFO is not well suited for business park expansion:  It’s small, allowing only a few lots.  WMU will spend up to $985,000 to buy out a Michigan State University entomology lease.  The old orchard occupying one third of the site will require expensive remediation because of the lead and arsenic build-up from insecticide use from the late 1800s to 1947.

4. There are many other sites equally or better suited for the expansion.  Some are held by private owners, but WMU owns suitable lands that are nearby and have no title restrictions.

5.  The orchard was bought by the state long ago with taxpayer money.  Clearly a major motive for the proposed conversion is to convert State of Michigan assets into WMU dollars. The CFO is, in a way, an innocent by-stander.

This is the short list of arguments. You might suppose that WMU has an equivalent list of rebuttals, but that is not the case.  No one in the administration or board has been willing to engage in debate on the merits. President John Dunn has never, to my knowledge, made any public comment on the issue. Nearly all statements about the project have come from one Vice President and questions have been met, not with answers, but with marketing rhetoric about what a great success the already built part of the BTR park has been.

I hope that you and your senatorial colleagues in 2009 will be as wise as the Senate of 1993.

Sincerely yours