Friday, December 10, 1999
Amidst legal entanglements, ConsCom denies Berry Corner Lane application
The Carlisle Conservation Commission found itself enmeshed in a legal dilemma not of its own making at a public hearing on December 2. In a telephone conversation, town counsel had advised chair Jo Rita Jordan that in order to help break an administrative and legal gridlock , they should make a decision on a Notice of Intent (NOI) for upgrading Berry Corner Lane. In so doing, he said, the commission should merely exercise its authority under the Massachusetts Wetland Protection Act and ignore other legal issues outside their domain.
The catch for the commission was that ownership of the lane, which is currently a common driveway, has been in dispute for many months, and under Carlisle Wetland Bylaw, the commission is prohibited from considering an application without the written consent of the owner(s). Berry Corner Lane residents, who are opposed to plans for "improving" the unpaved roadway, were present at the hearing and were politely but firmly vocal. The upshot was a victory, albeit a potentially brief one, for the lane contingent.
Attorney Howard Speicher, representing applicants David and Michael Valchuis, owners of a 13-acre lot in an area of extensive wetlands at the end of the lane, cited town counsel's opinion and asked that his plans be considered that evening without regard to the question of ownership. If the commission were to approve the project and issue an Order of Conditions, the opponents could then appeal that decision on the basis of lack of ownership, and a court would settle the matter once and for all.
Evolution of the impasse
A review of the evolution of the impasse was given by conservation administrator Katrina Proctor for the benefit of newer board members. According to her research, Berry Corner Lane was approved as a common driveway about 30 years ago and the five-house limit for that type of access road was reached soon thereafter. The Valchuis brothers bought their land in 1983 and in April of 1996, they signed an agreement with the five Berry Corner Lane homeowners that gave the brothers an easement to build and access a single house at the end of the lane. They also agreed to help pay for maintenance of the lane.
Subsequently, the Valchuis brothers approached the planning board with a request for a variance to allow construction of the sixth house. However, the planners insisted that the road be brought up to "subdivision standards" before they would give their approval. The neighbors did not want the country road paved, widened and supplied with private turnabouts as required by the board. After court-pressured negotiations, the board dropped its more stringent requirements and the Valchuises presented this most recent NOI to the commission, which is required to pass on the project's wetland impact before final Department of Environmental Protection approvals can be issued.
Jordan led off the discussion by strongly recommending that the commission follow counsel's advice, explaining, "Basically it's not our fight. All we say is whether the wetland issues are okay." Commissioner John Lee halfheartedly agreed, adding, "We can't be considered a land court." Vice-chair Tricia Smith was unhappy that there had been no written opinion from town counsel and "worried that the matter had not been discussed in public by the commission." Using homeowner logic, lane resident Judy West pointed out, "Since we [the residents] have paid taxes on it [the common driveway] for 30 years, we must be the owners."
Engineer Jody Borghetti of Stamski and McNary offered a map with the scaled-down specifications sanctioned by the planning board. They showed no widening of the lane and proposed to bring the roadway up to standards by the addition of gravel on top of the present dirt surface. Due to the steep hillside, the engineers had to deal with the runoff of water which collects in puddles on the road and often freezes in the winter. They recommended a long drainage pipe with a collection basin to catch the water. The single turnaround, now acceptable to the planning board, would be located on the Valchuis property. However, when Smith commented that she didn't understand how runoff from the extensive hillside would get into the single drainage pipe, Borghetti admitted, "I honestly can't answer that." Whereupon West interjected the seemingly pertinent comment, "As a matter of fact, there's a natural spring at the end of my driveway."
Abutter Keith Therrien, who claimed considerable wetland drainage experience, was concerned that if the drainage ditch did indeed catch the water that presently runs over the lane and into the wetlands, "there will soon be no wetlands." If the proposal did proceed, he suggested a wider pipe, installation of riprap along the hillside and immediate reseeding. Referring to Borghetti's assurance that there would be no tree removal along the road, he feared that just digging the trench for the drainage pipe would soon kill any major trees within three or four feet of the disturbance.
Commissioner and attorney Carolyn Kiely brought the discussion back to the legal problem, expressing concern about approving any plan without knowing who owns the territory. "If the plan doesn't work, whom will we ask to fix it? We would be authorizing something someone else might have to fix." Even Jordan theorized, "What if it does dry up the wetland, what then?"
Stressing that she, too, would feel better taking action once the ownership issue had been closed, Smith questioned why the applicants insisted on pushing the matter before the rest of the issue was settled. She asked Speicher for a two-week continuance to allow the commission to pursue formal consultation with town counsel. The lawyer refused, citing a 70-day appeal deadline from the DEP which, he said, would come due in the interim.
Split board decision
Reiterating her dissatisfaction with the lack of detail in project specifications and her desire to see the ownership issue settled because of the bylaw prohibition against acting without owner permission, Smith moved that the public hearing be closed. The motion passed.
In the discussion that followed, Jordan reiterated her contention that the board should follow town counsel advice, act on the NOI and let the owners appeal the decision if they so wished. Kiely, in turn, restated her concerns about acting while ownership remained in limbo and then knowingly asking a group of citizens to spend their money in an appeal. Commissioner Eric Jensen said he felt the commission was being used "to stop something that isn't our issue," while commissioner Tom Brownrigg added that he felt information was lacking for a sound decision. Jordan had the last word before a vote on whether to condition the project or not, adding with a note of resignation, "Either way we go, we're probably looking at a lawsuit." The motion to condition the project brought a tie vote with commissioner Sylvia Willard abstaining for lack of information. Smith almost immediately countered with a motion to deny the application due to lack of information and the fact that the ownership question had not been settled. That version passed four to three with Jordan, Lee and Jensen opposed.
The only other applicant of the evening, Brian Coffey, approached the table with a smile, announcing, "For starters, I own my land." His request for an amendment to an original NOI for 21 Hutchins Road to permit him to lower the grade on a hillside before stabilizing it with plantings was continued for two weeks. The delay will permit Pat Huckery of the Natural Heritage Program to comment and give Coffey time to submit a specific stabilization plan.
© 1999 The Carlisle Mosquito