Several items of importance related to the planned closure of Fernald have been enacted into law through language included in the Massachusetts state budget. In FY2005, wording was added to the DMR budget line item providing funding for facilities (5930-1000) that prohibits DMR from closing Fernald prior to the following calander year and also directing the department to take steps to insure that individuals leaving Fernald will receive “a level of care that is equal to or better” than services they are currently receiving. The Arc supports this reiteration of protective language contained in the U.S. Supreme Court’s Olmstead decision. Of more concern to The Arc was an outside section creating a Fernald Land Reuse Committee.*

In a memo to fellow legislators, Rep. Stanley (Waltham), the outside section’s author, characterized the land reuse committee as “critical in protecting the interests of the Fernald residents and the greater mental retardation community.” What Rep. Stanley did not mention, and what apparently few legislators failed to appreciate is the fact that the Fernald Land Reuse Committee’s composition suggests there will be few benefits forthcoming to persons with mental retardation as a result of the sale or transfer of the site’s 163 acres of real estate.

The sections contain language specifying the makeup of a Fernald Reuse Committee that is lopsided in favor of local municipal interests (10 out of 16 persons, with three legislators from the abutting districts).  Only two people were identified that might purport to represent the interests of DMR consumers, the people for whom Fernald supposedly serves - DMR Commissioner Gerry Morrissey and a "mentally retarded consumer who is a resident" (exact wording).  The skewed composition of this committee suggests its recommendations will be heavily slanted away from DMR consumers and their families and will likely favor local political interests.

The Fernald Reuse Committee language restrictsed the Commonwealth from using any funds realized from the sale or transfer of the property for any use other than the development or capital improvement of segregated facilities.  We feel these restrictions are inherently unfair, as they limit the ability of DMR to use funds to place individuals in any integrated community setting.  It would prohibit DMR from spending any funds for any of the community settings that have provided residential services to all people who have come into the system since state school admission were closed in the 70's, including people with disabilities and medical needs that are equal to those of any resident at Fernald.

The committee was supported by organizations such as COFAR that are critical of the closure of Fernald and was touted as a means to halt the process. The Arc has argued the disposition of the land is a separate issue and will not affect closure. In the end, this unfortunate tactic may result in the loss of significant revenue for all persons with disabilities living within the Commonwealth.

The concept of a land reuse committee heavily slanted towards a local municipality does not bode well for the future disposition of over 1700 acres of state-owned property on which the remaining five DMR state facilities sit (not to mention land on which DMH state hospitals are sited). It may prove to be a dangerous precedent that other communities may cite when other facilities are targeted for closure. The Arc supports the common sense inclusion of abutting communities having a voice in deciding what happens to surplus state school property. However, we have and will continue to advocate that persons with disabilities should be the primary beneficiaries of revenues generated from the sale or transfer of this land, which belongs to taxpayers and residents throughout the entire state.

For the third two-year legislative session, The Arc has filed legislation:

H37 - An Act relative to the development of underutilized facilities and state owned property formerly operated by the Department of Mental Health or the Department of Mental Retardation for supported housing for chronically mentally ill and disabled**

* There is hereby established a Fernald Developmental Center land reuse committee. The committee shall include the mayor of the city of Waltham, who shall serve as chair of the committee, the ward councilor from the city of Waltham representing the ward in which the campus is located, who shall serve as vice-chair of the committee, the planning director of the city of Waltham, the commissioner of the Massachusetts department of mental retardation, a mentally retarded consumer who is a resident of Fernald, and who shall be appointed by the commissioner of mental retardation, the commissioner of the department of capital asset management and maintenance, 7 citizens of Waltham to be appointed by the mayor of the city of Waltham, of whom 4 shall be the citizens appointed to the committee during fiscal year 2004, the state representative from the ninth Middlesex house district, the state representative from the tenth Middlesex house district, and the senator from the third Middlesex senate district. The committee shall be responsible for representing the interests of the town in all negotiations with the division of capital asset maintenance and management and the department of mental retardation relative to the reuse and future development of the developmental center property. The committee shall, with the assistance of the division, develop a comprehensive reuse consensus plan for the Fernald Developmental Center state property, which shall provide a detailed description, by parcel, of how the property shall be developed upon closure of the Fernald campus. The plan shall include a description of any potential environmental degradation of the property, along with a proposal for environmental remediation, and a proposed cost for the cleanup including, but not limited to, any building demolition required on the site. The goals of the plan may include, but shall not be limited to, preservation of open space, creation of affordable housing, development of new business, the creation of recreational opportunities, the development of new community residences for the mentally retarded consumers of Fernald Center, and any other applicable community priorities. The plan may also provide for parcels of land, and specific facilities, to remain under the control of the department of mental retardation. In its deliberations, the re-use committee shall incorporate smart growth policies to the extent possible, and will be mindful of the rights of current Fernald residents, and their need for adequate and appropriate housing, clinical services and appropriate staffing provided by the department of mental retardation. The committee shall examine and consider models for the provision of these services on a section of the Fernald property. The process the committee shall follow is to be determined by a majority vote of its members and shall include a public hearing at the beginning of the process to solicit comments, ideas and re-use proposals. The committee shall develop a framework, with guidelines and parameters, as to the re-use of the property. The committee may appoint subcommittees to review particular subjects within the framework of the study, and may assign a subcommittee to produce a detailed re-use proposal. At least two-thirds of the members of the subcommittee shall be Waltham residents or officials. The subcommittee shall present the re-use proposal to the committee which shall invite the public to comment at a public hearing. The committee may amend and revise the plan in order to reach a consensus on one concept. Upon approval by the re-use committee, the plan shall be presented to the Waltham city council for approval, and, if endorsed by majority vote of the council, filed with the division of capital asset management and maintenance. The plan shall also be submitted to the chairs of the house and senate committees on ways and means, and to the house and senate chairs of the joint committee on state administration, along with copies of enabling legislation, if any, necessary to effectuate the provisions of the re-use plan. If the re-use plan provides for the conveyance of land from the state to the city of Waltham, the legislation shall provide that the price paid for such parcel be the full and fair market value of the property as determined by independent appraisal, for the uses described in the plan including, but not limited to, any restrictions or and requirements imposed by the plan. The legislation shall ensure that proceeds from any sale are first applied to repay the commonwealth for the cost of any bonds issued for environmental remediation, consulting services or other closure costs. The legislation shall also provide that any remaining proceeds be provided to the department of mental retardation for capital improvements at Fernald, at other intermediate care facilities for the mentally retarded (ICF/MRs), or at community residential settings operated by the state. The re-use committee shall meet as necessary to complete said re-use plan, as determined by a majority of the committee.

** SECTION 1. Chapter 7 of the General Laws as so appearing in the 2004 Official Edition, is hereby amended by inserting after section 40F½ the following section:--

Section 40F¾. Not withstanding the provisions of section 40F or any other general or special law to the contrary, when the commissioner of the division of capital asset management and maintenance requests from the general court authorization to dispose of state real property formerly used as a department of mental health state hospital, or a department of mental retardation facility for individuals with mental retardation, whether such transfer is to the Massachusetts Development Finance Agency, a body politic and corporate entity established by section 2 of chapter 23G, a private developer, or any other individual or entity, the request shall include a restriction that requires at least twenty-five per cent of the disposition proceeds from the transferred property, or at least twenty-five percent of the property, to  be used to develop decent, safe, sanitary, affordably, community-based housing pursuant to applicable federal guidelines, for individuals who are clients of the department which operated such real property; provided that such housing shall be made affordable to such individuals with incomes of fifteen per cent of area median income or below; provided further, that the development may include, but not limited to scattered site, integrated independent living apartments; provided further that said restriction shall be recorded in the registry of deeds or the registry district of the land court of the county in which the affected property is located, running with the land, that the land be used for the purpose of providing housing for eligible individuals as determined by the department of mental health or the department of mental retardation, as the case may be; provided further, that said property shall not be released from such restriction until after the expiration of ninety-nine years from the date of initial occupancy by such eligible individuals.  If disposition proceeds from the transferred property are to be used for development of housing on property other than that formerly used as a department of mental health state hospital, or a department of mental retardation facility for individuals with mental retardation, said proceeds shall be placed within a dedicated account under control of the appropriate agency as the case may be prior to their disposition into the General Fund.