Friday, October 17, 2003
ConsCom gets tough on buffer zone violations
The rash of enforcement problems that have recently plagued the Conservation Commission (ConsCom) gave few signs of abating at a turbulent October 9 meeting.
Unpermitted construction in wetland buffer zone
The first skirmish occurred following a peer review report by wetland engineer John Rockwood of EcoTec that confirmed the existence of a wetland in close proximity to construction already well under way on land on Berry Corner Lane owned by Michael and Laura Baliestiero.
The review was requested and agreed upon at the Commission's September 18 session after Conservation Administrator Sylvia Willard had reported the apparent violation of the Wetland Protection Act, while viewing the delineation of wetlands on an abutting Cross Street property. She and two delineation experts had observed unpermitted tree cutting, grading and home construction within the 100-foot buffer zone of the wetland.
Confronted with the probability of serious trouble, Baliestiero submitted a tardy Notice of Intent to build. While awaiting the results of the peer assessment, the Commission performed a site visit and promptly issued an enforcement order calling for a halt to all cutting, grading and construction except for light carpentry work.
In the interim, Rockwood, wetland delineation expert David Crossman, Stamski and McNary engineer Joseph March and Willard agreed on a wetland boundary after studying the soils and vegetation. In his subsequent presentation on October 9, Rockwood concluded that "a vast majority of the wetland buffer zone will be disturbed under the [Baliestiero] plan."
The verbal fireworks began when commissioners upbraided Baliestiero because they had seen "clear evidence" that prohibited activity had taken place following issuance of the enforcement order, a charge that the applicant denied. Chair Tricia Smith let that argument drop to cut to the nub of the problem, "Why were no ConsCom permits sought prior to the initiation of the project?" Noting that records showed the wetlands to have been flagged in 1997 and the flags later partially re-hung, but with some missing, she explained, "We're trying to work out the chronology that allowed the established procedure to slip through the cracks."
Baliestiero responded that he was aware there was a wetland law but hadn't thought there was a wetland there. "It was all trees and brush and there was no water. How could I know?" he asked. That reply led Commissioner Roy Watson to observe, "In situations of this kind, if the property owner is ignorant of his responsibility to file for a permit, he should be able to count on the professionals working with him, such as the engineers, real estate people or developers to inform him." Commissioner Peter Burn added, skeptically, "Since you admit you know about wetlands, I'd be very curious to know what made you so sure there was no wetland involved."
Baliestiero repeated rather hotly, "There was no evidence that there was a wetland. So, what did I do wrong?" Replied Watson, "You didn't get a permit from the ConsCom and that's a violation of the law." To which March interjected, "Building in the buffer zone is not a violation. The Wetland Protection Act even allows building in up to 5,000 square feet of wetland." "But not without a permit," Watson rejoined.
Noting that the plan as now described in the tardy NOI showed a mere ten-foot setback from the wetland in one area, Smith said she would never have approved an application had the present plan been submitted before the start of construction. Addressing March, she said, "Joe, are there any conditions under which you believe there is any value in having a buffer zone?" March chose not to reply.
The discussion ended with all the commissioners expressing serious concern about drainage on the steeply sloping lot. They said that, in their opinion, the plan as presented would not control the flow of water down the paved driveway and off the roof, and the inevitable result would be serious soil erosion with harmful siltation into the wetland. Smith requested that the applicant agree to a continuance for his team to take another look at the drainage problem. Baliestiero mumbled only that he would think about it, but did not sign the proffered continuance form.
Clear-cutting in buffer zone
The second enforcement discussion started out on a more friendly note. Smith welcomed Donald Cady and his wife Deborah, moving their appearance ahead on the agenda to accommodate their small child. The Cady enforcement had a history, having started back in 1996 when the couple had cut down trees and brush in their restricted Russell Street yard and were ordered to cease the clear-cutting, clean up the brush and remedy the damage where possible. Lee pointed out that the couple had subsequently resumed tree cutting in the wetland buffer zone without informing the commission. Therefore the board had sent a letter telling them to cease all work and to appear before the board to describe what he proposed to do for remediation. He said he had come in to find out what the board wanted him to do, but denied that his 1996 order had stated he would have to return to the Commission any time he wished to cut more trees and/or vegetation. Watson took strong issue with his denial, and proceeded to quote from the minutes of the 1996 meeting in which Cady had said he understood that there was to be no more cutting. Watson stressed both Smith's insistence that the wetland be re-flagged and Lee's demand for a plan on paper showing the full extent of any further work contemplated for the property.
However, when a Commissioner called for an "engineered" development proposal, Cady strongly resisted, saying that his present employment situation demanded that he minimize costs, and if required to retain an engineer, he would have to refuse. In the end the Commission softened its immediate requirements and specified that he cut up and remove the cordwood and burn the slash in the spring. There was to be no further work done until he could come in with an engineered plan.
Land fill in buffer zone
A third enforcement action appeared to be well on the road to acceptable remediation. The original Commission action had taken place in late July after they received a letter from Joseph Campagna reporting that "tens of thousands of cubic yards of material" had been dumped into a probable wetland area belonging to his neighbor Dana Booth over a period of six years and continuing to the present. Willard and Smith immediately scheduled a site visit, discovered that fill had indeed been introduced into a four to five foot wide finger of low land that connects with a wetland, and subsequently ordered that the resource area be flagged and the depth and nature of the fill and underlying soil be determined. Booth selected wetland engineer David Crossman of B & C Associates to do the analysis, make recommendations for remediation and monitor the work.
Crossman reported at the October 9 meeting that he had found approximately 15 feet of gravel at the upland end of the finger with organic compost beyond that point. For reparation he recommended that all the material be pulled back from the area. The Commission agreed to issue the necessary order to allow the remediation, but added that they will later require Booth to develop a usage plan for the property.
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