Thursday, November 29, 2001

By Dianne Williamson
Telegram & Gazette Columnist

Gertrude Falby insists she's been snookered.

The 93-year-old Yankee and retired schoolteacher from Boylston said she's heartsick at the deal she struck 20 years ago with the New England Forestry Foundation, a deal in which she handed over 167 acres of pristine forest and orchards around her home with the assurance that the land would never be developed.

“I'm just appalled at what's happened,” said Miss Falby, who still lives on the land that was farmed by her family for more than a century. “I feel betrayed and foolish. Only an idiot would give away land and let someone else exploit it.”
But the New England Forestry Foundation is defending its decision to swap some of the Falby property with a developer, a deal that has landed both sides in court.

“They're painting this as a big bad organization trying to profit from a well-meaning old lady,” said Brenda Sharton of Boston, lawyer for NEFF. “Nothing could be further from the truth.”

 Miss Falby is the daughter of the late William H. Falby, who was profiled in this newspaper in 1955 as a “typical old-time New England farmer” who came to Worcester County in 1888 and worked 178 acres of apple and peach trees on land along the town line splitting Boylston from Northboro. The land includes the historic Tory Cave, which is listed on the National Register of Historic Places, and frontage on Rocky Pond.

In 1980, when she was 73 and faced with annual property taxes, Miss Falby met with the president of NEFF, a nonprofit foundation dedicated to the preservation of New England forests, and agreed to deed 10 parcels of land to the organization. According to Miss Falby and her lawyers, she stressed that she wished to protect the land from development and make it available for public recreational use.

 “They seemed like reputable people,” Miss Falby said yesterday. “The president was a gentleman, somewhat like my father. A splendid old Yankee type. I was impressed with him.” The deed was filed. Then, in 1998, Miss Falby said, she was initially pleased to learn that a neighbor, Kenneth Sydow of Rocky Pond Realty Trust, had purchased 47 acres of nearby land for $125,000. She said she believed he had bought the land to protect it from development, but she later learned that the parcel's development prospects were limited.  Her pleasure soon turned to dismay, she said, when she learned in 1999 that Mr. Sydow engaged in a land swap with NEFF, trading the 47 acres for almost 20 acres of the developable NEFF land, on which he plans to build 10 single-family homes.

 “This deal was planned ahead of time,” said Miss Falby's lawyer, Robert D. Price. “The land he got connects to a road, so he can build on it. My client feels like they made a fool out of her. Over the years she has turned down very large offers for that land because she wanted to protect it. If she knew this was going to happen, it would have made more sense for her to develop it herself.”

But Ms. Sharton, lawyer for NEFF, said that the Falby land was deeded to NEFF with no restrictions, a transaction that benefits the donor for tax purposes. She also maintained that Miss Falby was notified of the swap as a courtesy in 1999 and expressed her approval; Miss Falby says she was unaware of the details.

Ms. Sharton said the transaction enabled NEFF to expand the forest and link the donated land -- called the Falby Memorial Forest -- as a single parcel. She said the 20-acre tract given to Mr. Sydow already contains several small cottages, and maintained that the 47-acre parcel could have been developed by an abutter with frontage.

 “There's no downside to this,” Ms. Sharton said. “We're doing this swap solely for the greater good of the forest.”

But Miss Falby is suing NEFF and Mr. Sydow. In a lawsuit filed in Worcester Superior Court, she charged NEFF with fraud, misrepresentation and undue influence, and asks that the land be reconveyed back to her. She is also requesting an injunction to bar Mr. Sydow from developing the land.

Miss Falby said NEFF was aware in 1980 of her wishes to protect the land and never informed her that the deed should include a conservation restriction.

 “Miss Falby had spent her life as a teacher, did not understand the legal procedure necessary to protect her land for conservation purposes, and was not familiar with business or real estate matters,” the lawsuit states. “Miss Falby relied on the representations of NEFF in all her dealings with them.”

Yesterday, NEFF filed a motion to dismiss the suit, contending that the three-year statute of limitations has expired. The motion claims that NEFF had no duty to disclose possible deficiencies in her deed.

“Falby conveyed absolute title to NEFF by executing a deed that contained no restrictions whatsoever,” the motion states. As already noted, the 20-acre parcel that now belongs to Mr. Sydow contains several small cottages. One of those cottages was built many years ago by Mr. Sydow's grandfather, with William Falby's permission. Miss Falby said the two families had been friendly for generations -- until now.

“I don't think his parents and grandparents would like what he's doing,” Miss Falby said of Mr. Sydow. “That land is my heritage. My father cherished it and took care of it and never sold as much as an acre. My only wish, the only thing I was trying to accomplish, was that people in future generations enjoy it as much as we did.”