Friday, November 12, 1999
ConsCom brings closure to fracas over dam repairs
No one went home cheering from the November 4 meeting of the Carlisle Conservation Commission, but all involved were relieved that an ordeal was finally over. As often happens when public servants find themselves in a cross- fire of competing imperatives, a compromise was reached that completely satisfied no one.
At issue was a request for a Certificate of Compliance from Jonathan Sachs, owner of a historic property at the end of Baldwin Road. The applicant had readily admitted procedural infringements during a dam restoration project and had apologized to the board.
In the aftermath of a tense October 27 hearing before four of the seven commissioners, six members had made an 8 a.m. site visit October 31 to help determine whether and/or how the board should react to clear violations of the state Wetlands Protection Act (WPA). At the Thursday follow-up session, more than two hours of intense exploration of alternatives resulted in two split decisions. The first granted Sachs a Certificate of Compliance, permitting him to complete sale of his property to new owner Michael Marchese. The second levied a stiff $2,500 fine.
Facts in the case
The facts of the case were never in serious dispute, but proper definition of commission responsibility was. In 1997, Sachs had presented the board with plans drafted by ENSR environmental engineers for restoration of a decaying 70-year-old dam. The structure was in danger of washing out and destroying Evans Pond, a shallow body of water that had already observably receded. The plans were approved and an Order of Conditions issued. The revamped dam was completed in the fall of 1998 by North Star contractors, but with winter's freezing earth and heavy precipitation, the structure sprang a serious leak. Alarmed, Sachs asked Douglas Macone, who was on site as a subcontractor working on house construction, to take a look at the situation. Seeing the dangerous condition of the berm that holds back the water, Macone agreed to undertake an emergency repair. Sachs, unaware that any changes to a ConsCom Order of Conditions requires a return visit for approval of the new specifications, gave the go-ahead to do whatever was needed to reinforce the dam and ensure its safety.
Reconstruction involved using materials from the bottom of the drained pond plus rocks from the surrounding territory to enlarge and solidify the berm. At no time before, during or after completion of the now solid structure did the owner inform the commission of what had been done or seek the required Certificate of Compliance.
Opening the second hearing, chair Jo Rita Jordan exercised her prerogative of first commentary to deliver a conciliatory opinion. Terming Sachs' transgressions "largely procedural," she described the end result as a solid, well-built dam that will support fish, birds and other wildlife. "We should be glad to have a pond of this sort, unless we find that damage has been done," she said. Admitting that punishment of infractions is another matter, she nevertheless declared that she did not see Sachs' unintentional delinquencies as valid reasons for punishing him and added, "I suggest that the ordeal of the last two weeks may be punishment enough."
Jordan then directed her displeasure at the contractor, Macone, who she said should have consulted the Order of Conditions and informed his employer of what the law required. In her opinion, it was he, not Sachs, who should be reprimanded and she suggested he be required to stock the pond with fish as appropriate recompense.
Conservation administrator Katrina Proctor interjected that some months ago, she had made a trip to see if the dam had been finalized and found that, "It looked great." She told Sachs he should have informed the commission before commencing the later repair work, but at that time did not impress on him the importance of getting a Certificate of Compliance. Commenting that, "Therefore, I think this office has had some responsibility," she agreed with Jordan that no heavy fine should be imposed.
A more aggressive approach
Vice-chair Tricia Smith spoke next, and continued the aggressive approach she had adopted in conducting the October 27 meeting. She checked off chapter and verse of the infringements of WPA rules that had occurred. The most serious appeared to be failing to post a department of environmental protection (DEP) sign on site, failing to inform the commission of the commencement of operations, employing 4,000 square feet of unpermitted fill behind the berm, shallow dredging within the resource area itself, and failing to supply the commission with names of personnel supervising the project. Contrary to Jordan's lenient approach, she insisted that the regulatory powers of the commission required that rules be followed. Terming Sachs' transgressions "the most egregious violation I have seen in my time on the conservation commission," she demanded that the applicant be fined accordingly. Further, she declared that the amount should be $25 per day, per offense, and that replication of the 4,000 square feet of filled resource area should be required.
Not expecting to be asked for prepared statements, the three newer commissioners were brief in their comments. Tom Brownrigg commented that he saw the project as a "done deal." He considered the commission's basic responsibility to be enhancement of wetland health. Referring to the site visit, he said, "From what I saw, we have not degraded any wetland values; in fact, we have enhanced habitat."
Commissioner Sylvia Willard chose to stress the future rather than the past. She expressed a wish to see a long-range maintenance plan to make sure "this absolutely beautiful site" does not degrade again. In addition, she advised that future applicants should receive written documentation as to the requirements they must fulfill in order to receive a certificate.
Member Eric Jensen posed a question: "If what happened had been brought before us, would it have been approved?" Smith at first answered by pointing out that the original filing had described a methodology that would have reconstructed the old dam within the original footprint and wouldn't have called for substantial dredging. At that Jensen repeated, "Had they come, would you have said okay?" The response from Smith was, "Of course, because our job is to condition work that occurs."
The final commission speaker, John Lee, agreed with Smith that as a regulatory body the commission is charged with carrying out rules and regulations of both town and state. He described himself as "bothered by the lack of communication between the contractor and Sachs." However, Lee added that he saw nothing to be gained by punishing Sachs and believed the penalty should be assessed against the contractor, who should have been aware that the area he was working in was clearly a wetland.
Comment from applicant
The meeting was opened for comment from the applicant, the contractor and a partisan audience. After addressing a few technical points, Sachs turned to the matter of intent. Stressing that he was not trying to evade responsibility for what had happened, he said he did resent the implication that he was malevolently trying to subvert the authority of the board. Laughter rippled through the audience when he observed wryly, "If there was an intent to evade responsibility, it was the most miserable failure imaginable." Clearly not amused and denying any accusation of malevolence, Smith reiterated that she takes the law seriously and has sworn to uphold it.
Also concerned for his reputation was contractor Macone, who noted that he has successfully completed many jobs for the town, including work on the police and fire departments and the Town Hall. Recalling that when, as a favor to Sachs, he took a look at the dam, and saw its faulty workmanship, he was concerned that it wasn't going to stand up. Anxious to protect the wetlands and help Sachs, "who had spent all this money and felt he had an obligation to the town to build a safe dam," Macone undertook to prevent further damage. Saying that it had been his understanding that this was an ongoing project, he said he had asked if there were permits and was told there were. However, Macone admitted that he had not seen the ENSR plans or read the Order of Conditions. Macone described the construction work in some detail and assured the commission that he had done the job "so it wouldn't have to be done again," concluding, "If you punish me, I will be very unhappy about it."
Rising to the defense of his neighbor, Ralph Anderson reminded the board that, "He [Sachs] has been a major contributor to conservation, to the town and to the effort to convince Harvard University to place the Estabrook Woods in conservation in perpetuity....Mr. Sachs does not deserve to wear a hair shirt to improve his attitude toward conservation," he concluded.
Resident Bill McCormick next told the board, "Laws are made to protect the environment," and added that this project had been completed "with the best of intentions and workmanship." Admitting that there had been technical violations of the rules, he observed that the final outcome had been to benefit the community. Exhorting the board to let common sense and decency prevail, he urged them not to exact punishment.
When the discussion reverted to board members, Smith posed the $2,500 question: "What do we do if a developer doesn't follow the rules? I'm not comfortable applying one standard to a person who is a conservationist and another to an aggressive developer." Jordan responded that she could understand that point of view, but that homeowners, guilty of infringements, had sometimes been forgiven in the past. As for the charge of illegal fill and a requirement for wetland replication, she advised, "I'd like to suggest that the pond itself is replication enough."
Split vote on new order
Making clear that he understood Smith's position, Lee said he could see no benefit in denying the Certificate of Compliance and therefore moved to issue the order. The motion was seconded by Willard and passed four to two with Smith and Jensen opposed.
Obviously annoyed at partisanship among the visitors, Jensen turned toward them and declared himself "disturbed by the fact that no one seems to understand why we are upset. Bad things happened and we need to do something about it or we're in trouble."
The session then moved quickly to the matter of specific punishment. Lee declared he would like to see a fine levied against Sachs, perhaps to go into a trails fund. Jordan offered the information that the Massachusetts Association of Conservation Commissions recommends fining the contractor, "because it prevents further violations."
Again signifying a wish to comment, Anderson pled, "This is a town of people, not of procedures. He [Sachs] has given much to this town. I think it's unpardonable to fine him." Whereupon Sachs brought closure to the endless blows and counter blows with a statement that he was prepared to pay for his transgressions. In fact he announced, "I demand punishment."
Lee soon obliged by moving for imposition of a $2,500 fine; Jensen seconded the motion, and it carried four to two with Brownrigg and Jordan opposed.
© 1999 The Carlisle Mosquito