Friday, January 10, 2003
Do Carlisle's bylaws have any teeth?
Several times a year a lone Carlislean or neighborhood posse spots what they believe to be a flagrant violation of town bylaws or of the rules and regulations promulgated by town boards acting under local statutes. If the perceived misdeed also happens to threaten the aesthetic or market value of the complainants' own property, the first impulse is to call the police to "come and do something about it." Alas, too often they find that what the local constabulary can actually do on the spot is frustratingly limited, whether the activity involved is either a civil or criminal offense.
Pressed by upset readers to find out why a landowner felling trees along a "scenic road," a new homeowner filling in a natural pool in a town drainage easement, or a neighbor adding a deck without an appropriate permit was not stopped in the act, the Mosquito decided to look into the specific enforcement powers possessed by our regulatory boards, backed on occasion by the police. The search for answers began in interviews with members or agents of the board of health, planning board, conservation commission and zoning board of appeals and concluded with the building commissioner, board of selectmen and chief of police. The situation has been found to vary widely from board to board and, in certain cases, to offer scant hope of immediate redress in sticky situations.
Sources of authority and power
Carlisle's regulatory boards derive their powers in the first instance from the General Laws of the Commonwealth of Massachusetts. These are statutes that either mandate their formation and/or outline major objectives and minimum standards of local government. Local bylaws flesh out the general laws of the state and reflect the values of their unique communities. The extent of regulation and the enforcement muscle entrusted to each agency thus varies from town to town and board to board.
Carlisle's bylaws have been molded by its geology, as an area of wetlands, high water table and ledge. With no municipal water or sewer services, the town has opted for highly restrictive zoning and the toughest septic system regulations in the area; just ask any contractor who does business here. Establishing bylaws and regulations is fine, but they don't do much good if flouted with impunity. So, how good a job do we do with enforcement?
Planning board and building commissioner
Start with the most influential elected regulatory body, the planning board, which interprets and applies provisions of state statutes and the Carlisle zoning bylaw. It accepts and evaluates all definitive subdivision plans (plans that include creation of a new public way)or, if the lots are off an existing public way, goes through an Approval Not Required (ANR) process. Not until a board okay is received can the building commissioner issue a building permit to those applicants, but once it has been issued, he is charged with monitoring and enforcing its provisions. Thus, if a citizen or board member feels that a zoning law is being infringed, it is the building commissioner who must be informed. Neither the board nor the police has the power to enforce zoning bylaws and regulations. The commissioner, however, can stop work, demand compliance and threaten court action if any building is in violation of the provisions of the building permit or the existing bylaw. He can even recommend to the state that a contractor's license be removed and can present the charges himself. Legal counsel is available, if needed, in cases involving plumbing, electrical or safety issues. However, according to present incumbent Bob Koning, the commissioner very seldom encounters serious argument.
In the unlikely circumstance that a board member or resident feels that the commissioner has not fulfilled his duty to enforce, that party can request that he do so, in writing, and he must then either enforce or refuse to do so, also within fourteen days. If still dissatisfied, the complainant can go to the zoning board of appeals (BOA), which has the authority to decide if he has or has not fulfilled his responsibility. If unhappy with the BOA's decision, the complainant can pursue the matter in court anytime within the next six years.
Building commissioner: withholding occupancy permit
The planning board itself can exert effective pressure on recalcitrant applicants through the permitting process. Not only is their approval needed to obtain the building permit, but the commissioner can be asked to withhold the final occupancy permit until the board issues a "certificate of compliance." The board can also hold back the release of a developer's cash bond or require compliance under a "lender's agreement," where a third party is involved.
Planning administrator George Mansfield notes regretfully that withholding occupancy permits in a development where lots are sold serially to homeowners whose construction is properly completed, but where the developer has not yet satisfactorily fulfilled the requirements for the common drive, can lead to a dilemma. It's unfair to inconvenience the last one or two homeowners for something that is not their fault, but neither do they wish to saddle the owners with responsibility for a non-compliant drive.
Board of health monitors contractors
Unlike the planning board, the board of health (BOH) has its own powers of enforcement under the state's General Law, Title 5 of the state environmental code and the board's own bylaws and regulations. Following a strict code for approval of septic systems and wells, the board through its agent Linda Fantasia follows up closely at all stages of system installation, repair and extension to assure compliance. The agent has access to the site and can recommend revocation of an approval "found to be based on a material misrepresentation of fact." If any step in the monitoring procedure is skipped or the facility prematurely covered, the board can order it uncovered for the required inspection. Again, as with the planning board, a certificate of compliance is required upon completion, but in this case the engineer and the installer must also sign to insure its accuracy.
Septic system contractors operating in Carlisle must take a test each year to assure that they are keeping up with the latest technology. If one of their installed systems is found to be in violation, they receive a letter of warning for a first offense, lose the right to install the next year for a second and can lose the right entirely for a third.
At the time of disclosure of a violation, the board usually holds the septic contractor responsible and requires him to correct the mistake, although Fantasia admits that the contractor often passes the cost on to the homeowner. However if the homeowner and contractor conspire to build a non-compliant system, and no certificate of compliance is therefore filed with the registry of deeds, Fantasia says the discrepancy will almost inevitably be picked up by an attorney or bank lender at the time of the sale. Thereupon, it must be corrected, approved and recorded by the seller or monetary arrangements made to cover the costs that would then devolve on the new owner. Should foot-dragging or defiance occur, town counsel, acting for the selectmen can be asked to file for a show cause hearing and lodge a criminal complaint in district court.
ConsCom: hefty fines
Of the four regulatory boards, the conservation commission possesses the most direct enforcement authority under town bylaw, i.e., "The Commission shall have the authority and duty to enforce the Bylaw, its regulations and Order of Conditions issued hereunder by Enforcement Orders and civil and criminal court actions." Further if a violation has occurred, the board may request the Board of Selectmen and town counsel to take legal action for enforcement under either civil or criminal law. The Commission has to date chosen to employ the "non-criminal disposition" alternative, under which the penalties as voted at the 2002 Town Meeting are $75 for a first, $150 for a second and $300 for a third offense. Each day such violation continues constitutes a separate offense, unless the culprit gives written notification of the violation himself and subsequently complies with an enforcement order or order of conditions.
Although strong enforcement power is written into the bylaw, conservation administrator Sylvia Willard is quick to point out that the commission is often reluctant to apply it, except as a last resort. If members feel that a violation is probably inadvertent, they give the party an opportunity to file the required Notice of Intent ex post facto and follow the resulting Order of Conditions, which in itself can carry a substantial cost. It's important to note that while an order of conditions can be appealed to the state department of environmental protection, an enforcement order cannot.
If, on the other hand, damage to a wetland is severe or continuing, the violator may receive an enforcement order to correct the situation immediately, no matter what the expense. Since wetlands are not always recognizable to the uninitiated, homeowners would be wise to check with the ConsCom office before building, grading or clearing.
What then can a private citizen concerned about an apparent infringement of the wetland protection laws do. They can alert the party responsible, and if the activity continues, inform Willard or any ConsCom member. If the problem involves illegal trespass on "signed' conservation property, the police can take immediate action.
Tree warden: permission for tree cutting
Tree cutting is one activity over which the commission has no jurisdiction, unless the trees are in or near a wetland. If your neighbor is cutting down treasured trees on his own property, and that property is not in a wetland or its 100-foot buffer zone, the commission can do nothing. On the other hand, if the felling is taking place on the town's right of way along a public road, the state's Public Shade Tree Act appears to offer stiff penalties. Such trees are not to be "cut, trimmed or removed without permission of the tree warden" after a public hearing and approval by the selectmen. Did you know that Carlisle has a tree warden? Indeed we do, and his name is Gary Davis, aka superintendent of public works. You may also inform the police, who can warn the would-be lumberjack, but may be uncertain as to the exact dimensions of the town easement on a given road.
Like other regulatory boards, the conservation commission has a long arm when homeowners deliberately or through lack of attention fail to file important documents at the registry of deeds at the start and at the completion of a project. Failure to register an Order of Conditions and a Certificate of Compliance will almost certainly mean trouble when the owner tries to sell the property. At present, a property owner who neglects to follow these requirements finds out that now, when he is ready to sell, he must clear the record by filing a new Notice of Intent, fulfilling the original unmet Order of Conditions, and in the end registering a valid Certificate of Compliance. In other words, here as with building plans and septic systems, it's unwise to listen to the siren song of "friends" who advise, "Don't ask, just go ahead and do what you want. No one will know the difference."
Board of appeals: rules on variances
At the other end of the enforcement spectrum, zoning board of appeals chairman Terry Herndon is clearly allergic to any gift of enforcement power. Reminding his listener that the board routinely decides tough and emotionally charged issues, he feels it would be inappropriate for them to act as both judge and jury and is happy to have that function remain where it is, with the building commissioner.
In a related matter, Herndon stressed the importance of bylaws being clear in their wording and intent. Two issues where existing bylaw language gives scant guidance as to intent and/or implementation, include the limitation that houses on non-conforming lots may not be enlarged by more than 50%, and the sanctioning of a separate "guest house" on a lot restricted to a single-family dwelling. The guest-house rule offers no definition of its characteristics and the Town Meeting discussion in which the rule was adopted gives no inkling. According to Herndon, attendees at the meeting remember nothing about it except that it was contentious.
Fantasia said the BOH had asked Town Meeting for the right to "ticket' in cases of relatively minor violations, such as those governing mercury thermostats in new homes. The system would work like traffic tickets where the agent can make out a ticket that must be paid within 25 days or the district court will follow up automatically. She said that process is quicker, easier and much cheaper than having the town, through its counsel, take violators to court for a criminal offense. As it is, such minor infringements are too often overlooked as not worth the time and cost to take corrective action. Town Meeting turned the board's request down, but Fantasia reports that the state is in the process of giving boards of health that power. As an interesting sidelight, ConsCom apparently has the ticketing power through the state already, but since her hiring as administrator, Willard has been unable to unearth the tickets!
Protecting scenic roads
The bylaw declaring roads in Carlisle as "Scenic" merely lists the roads so designated, but does not specify what rules the voters wanted to apply. Both Mansfield and Koning said they would like to see a clear definition of the standards and powers the voters had in mind when the article was voted.
Finally, where do the police fit into the enforcement picture as far as town bylaws are concerned? First, according to Chief Dave Galvin, they can notify a violator if his/her actions constitute infringement of most town bylaws. However, he says, if the party involved refuses to comply, there is nothing in the bylaw that allows officers to arrest. All they can do is summons the miscreant to appear in court, unless the infringement is also a felony and the officer can show probable cause why the perpetrator should be arrested. He stressed that a "criminal offense," even one that can land the party in jail, is not necessarily an "arrestable offense." Galvin also explained that in an emergency or situation affecting public safety, town counsel can go into court, a judge can be called in and a restraining order issued. However, on holidays and weekends the issue involved would have to be hyper critical for all that to happen.
Officers can also take action in clear cut cases of "trespass after notice" either written or verbal. Unfortunately, according to the chief, most of these cases occur where the matter of ownership or easement rights are in dispute (e.g., a reported incident at Berry Corner Lane involving owners and the holder of an easement). Said Galvin, "We understand the frustration of citizens who feel aggrieved, but in these gray areas we have to operate within limitations or we can be sued for false arrest."
River Road incident
Similarly, police and other town officials were powerless in an incident that began with the cutting down of trees within the town-owned swath bordering Bedford and River Roads, both scenic roads. Landowner Joseph Campagna was clearing his land for a horse barn, associated utilities, fencing and grading, but strayed into town-owned property.
Begun on a Thanksgiving weekend, the tree-clearing was observed by neighbors who informed Campagna that what he was doing was illegal. The police were summoned and confirmed the illegality of the ongoing activities. However, since this was not an arrestable violation, and the town's scenic bylaw does not give them the authority to stop the activity, the police were powerless to do more. Worse yet from the neighbors' viewpoint, on a holiday weekend it would have been impossible to get a restraining order from a court judge.
Well after the fact, the selectmen duly informed Campagna that he must remedy the damage done to town property or face court action, and he subsequently offered a landscaping plan to remedy his error. Town administrator Madonna McKenzie indicates that consideration of the proposal was put on hold last spring, in part because the severe drought did not bode well for survival of replacement plantings, and more important, because a concrete marker had been removed, and the selectmen wanted the property line flagged. The department of public works offered to perform the task, but the work was again postponed because, as explained by selectman Tim Hult, the board wanted Campagna to hire a licensed engineer to do the surveying to ensure that no one involved could challenge its accuracy in the future.
The barn owner promised that the surveying will be completed and submitted a new landscaping plan "to beautify River Road as a natural scenic road" and "to provide a natural screen for the neighbor." The plan specifies a variety of trees and shrubs "resistant to harsh conditionsstaggeredand chosen for aesthetics and blooming."
Meanwhile, following a zoning board of appeals ruling that Campagna could board only four horses in his new facility, the equestrian entrepreneur has put the property on the market. Given this new wrinkle in the legal process, Hult says the selectmen consulted town counsel as to the town's rights in the context of any upcoming real estate transaction. Counsel has since dispatched a letter to the property owner, but all that Hult or McKenzie can say while negotiations are in progress is that the town is seeking establishment of an escrow account to cover the cost of replacing destroyed town property. The town administrator is scheduled to recommend a specific escrow amount at the selectmen's January 14 meeting.
On several counts, all those interviewed were in basic agreement. First, the vast majority of Carlisleans want to do right, and all those involved in enforcement prefer to work problems out cooperatively. Second, it's important that town bylaws be clear as to intent and authority, while allowing for flexibility in gray areas. Third, the understandable reluctance of town officials to take the courtroom approach, owing in large part to the expense involved, often works in the miscreant's favor. Fourth, if the public wants a town bylaw strongly enforced, it must so indicate in framing the bylaw itself. Fifth, boards and the media have the responsibility to educate the public and the public has an equal responsibility to become reasonably familiar with the town's laws and regulations.
© 2003 The Carlisle Mosquito