The Carlisle Mosquito Online

Friday, June 23, 2000


Berry Corner suits still stewing against planning board and ConsCom

The stakes continue to rise in the Berry Corner Lane legal muddle. As the Mosquito goes to press Michael and David Valchuis have two separate suits pending against the town, one for actions of the planning board and the other for decisions of the Carlisle Conservation Commission. For their part, four homeowners along the disputed private way have filed a Request for an Adjudicatory Hearing relative to a state Department of Environmental Protection (DEP) order that reversed a ConsCom denial of a Valchuis application to improve the lane.

Planning board action

How did a seemingly simple application to upgrade a private way balloon into the present legal mess? In 1983, the Valchuis brothers purchased 13 acres in an area of extensive wetlands at the end of the privately-owned Berry Corner Lane. In April of 1996, they signed an agreement with five of the homeowners along the lane, which granted the brothers an easement to access and build a single house at the end of the roadway.

When an application to allow the project reached the planning board, that body declined to hear the case because it involved a sixth house on a private way that had originally been approved for only five houses. They advised the applicants that they would reconsider if the Valchuises presented a plan to bring the roadway up to subdivision standards. The neighbors, who did not want their private country road improved, refused to sign off on the project, insisting that the terms of the easement did not permit it.

The impasse occasioned a civil suit by the Valchuises against the planning board. Under court-pressured negotiations, that board later scaled down their requirements for acceptance of the road, but to date there has been no final resolution of what has already become an expensive tangle.

ConsCom action

In the meantime, in May of 1999, the Valchuises filed a Notice of Intent (NOI) with the conservation commission, asking that construction plans designed to meet their interpretation of the planning board's requirements be approved as fulfilling the demands of the Wetland Protection Act (WPA) and the Carlisle Wetland Bylaw. At a May 27 public hearing, attended by a vocal Berry Corner Lane contingent, ConsCom refused to accept the application without the signatures of the apparent owners of the lane, which are required under the town bylaw and the WPA. Insisting that the easement gave them the necessary ownership rights, the Valchuises filed a suit against the commission for failing to hear their application.

As a result of tough negotiations between town counsel Daniel R. Deutch and Valchuis attorney Howard Speicher, the attorneys signed an agreement on November 9. Under the accord, ConsCom was to hold a public hearing on December 2, based solely on the environmental merits of the NOI and ignoring the increasingly murky ownership issue. In return, Speicher agreed to remove a preliminary hearing on the suit against the ConsCom from the Superior Court's docket, which he did.

During the December 2 public hearing, commission members were advised of a telephone conversation between chair Jo Rita Jordan and Deutch, in which the attorney recommended that they bypass the ownership issue and make a decision based solely on conservation considerations. The board agreed to consider the application, but could not reach a consensus on the ownership issue, because only one member had talked to town counsel, and there had been no chance for other members to discuss the matter in public.

After studying the project specifications from the wetland protection perspective, the commission had misgivings about the effectiveness of the proposed drainage system. Therefore, they asked the applicants to continue the public hearing to allow for clarification of the drainage questions and to allow the commissioners to pursue further consultation on the ownership conundrum with counsel. This attorney Speicher refused to do, and the public hearing was closed. Subsequently, a motion to deny the application, due to lack of information and the fact that ownership had not been resolved, was passed by a four to three vote.

Court review

On December 30, the Valchuis brothers filed a civil action in Superior Court seeking to have the court compel the commission to consider the case on its merits and accept the NOI. The plaintiffs' request for a jury trial alleged a taking of property without just compensation and arbitrary and capricious conduct by the ConsCom.

In reading the complaint and jury claim, it appears that the plaintiffs' case is based in large part on the commission's alleged failure to hold the hearing within 21 days after the NOI was filed on November 9, a breach of contract in not considering the application on its merits as agreed to by their attorney, and failure to issue notice of the denial to the applicants within 21 days from the close of the December 2 public hearing. Unfortunately, the commission's reply to the allegations has been discussed only in executive session, and so is not yet available for public perusal, nor will commission members comment on matters of pending litigation.

DEP action

In the public realm, there has been considerable further action. On May 30, after a site visit, the DEP issued a Superseding Order of Conditions reversing the commission's denial and allowing the project to proceed based on the applicant's subsequent improvements to the drainage specifications and the department's finding that the plans submitted are sufficient to protect statutory interests under the WPA. However, the order specifically removes the department from any determination as to property rights along the lane.

On June 9, Berry Corner Lane homeowners Richard and Judith Wells, Thierry Copie and Catherine Celingant, through their attorney Charles J. Zaroulis of Lowell, filed a request for an adjudicatory hearing relative to the DEP's superseding order. Major grounds for the request charge that the plans submitted by the Valchuises are "inadequate and incorrect" for determining wetland boundaries and that no calculations were submitted that could determine whether the proposed drainage system would be adequate to protect the wetlands. Further, they allege that there was no consideration of the subsequent impact of cutting the roots of trees that line the lane, and that the order failed to address perennial pools and streams and the Rivers Act. Finally, the appeal charges that the DEP exceeded its authority by issuing a superseding order on property not owned by the applicants.

Although ConsCom chair Carolyn Kiely firmly but politely declined to comment on the legal implications of the suits now in process, she was clear on one point, "We [the ConsCom] take this matter extremely seriously. Development is becoming increasingly litigious, and the impact on the town is a matter for real concern."

2000 The Carlisle Mosquito