Friday, October 31, 2003
ConsCom debates, compromises, approves house in buffer zone
A philosophical cliff-hanger threatened to stymie Conservation Commission action on a West Street construction application at a continued public hearing on October 23. The original Notice of Intent (NOI) submitted by Heidi Baxter and Richard Parker and engineered by Stamski and McNary described plans for a house, garage, driveway, well and septic system on a 3.6-acre lot requiring 17,500 square feet of work within the 100-foot buffer zone of a wetland.
At a September 18 public hearing the Commission had asked the applicants' engineers to perform additional soil testing to ascertain whether an alternative septic system layout might permit more of the footprint for the house to be pulled away from the buffer zone. In addition they called for redesign of the driveway in order to reduce impervious surfaces and improve drainage. In a second appearance on October 9, Stamski and McNary engineer Joseph March presented a revised plan that reoriented the garage and driveway largely outside the buffer zone, lessened the steep off-grading and lowered the threat of erosion.
While recognizing that the revised plan showed some definite improvements, commissioners expressed disappointment that the changes still left the house 95 percent in the buffer zone, and again called for more soil testing to permit relocation of the septic system and rotation of the footprint further away from the resource area. March and the applicant protested that further testing would have to wait until spring and, in any event, the owners preferred the house location as shown for aesthetic reasons. Sensing an impasse, the commission closed the public hearing and postponed a decision until the next meeting.
ConsCom Chair Tricia Smith opened the third discussion with a formal recommendation that the commission "deny the application without prejudice on the basis of insufficient information regarding site conditions." She explained that the applicants' representative was unable to document why the proposed structure had to be positioned almost entirely in the buffer zone. However, she believed that the denial should be without prejudice because the lot appeared to be "eminently permittable" and a revised plan would pass under the Wetland Protection Act and Carlisle's Non-zoning Wetland Bylaw.
Baxter and Parker were invited to the table where Parker told the board that it had always been his intention to obey the letter and spirit of the law and to hire a landscape professional to assure that the result would be pleasing and would abide by the provisions of the Scenic Road Bylaw as applied to the rural vista along West Street. Further, Parker informed the commission that he had asked conservationist Ken Harte to explore the lot with the intention of putting the back of the parcel into Conservation Restriction (CR). With that plan in mind, Harte had agreed that the proposed location of house and septic system would be fine. He was also quoted as saying he believed the CR to be "in the vital interest of the Town of Carlisle" as required for its acceptance by the Board of Selectmen.
Commissioner Peter Burn told Parker, "I know you have tried to do the right thing, and you raise issues that are important to the town." After a moment he added, "But this case doesn't lend itself to easy answers."
Member Tom Brownrigg commented that in his opinion the applicant did not have many options. "After all," he said, "we have no setbacks [legal specifications as to distance from the wetland] in our Town Bylaw." He corroborated Harte's reported opinion that the land offered for CR status, though small, would be valuable, since it would connect with existing CR territories and add to a growing West Street wildlife corridor.
With her recommendation to deny the application in question, Smith admitted that she found herself "struggling" with competing values but reiterated her basic annoyance with the Stamski and McNary engineers that drew up the plan. "They've given us no options," she said, and insisted that "engineers need to adhere to a higher standard of work, particularly now that they are dealing with such sensitive and valuable land assets." Commissioner John Lee seconded her discomfort, declaring, "We don't like to see specifications that are not whole-lot plans. Stamski and McNary can produce a better plan." He followed up by moving that the commission deny the application without prejudice. The motion failed to carry with two ayes, three nays and one abstention (owing to an unrelated legal issue).
After a moment or two of silence, Brownrigg stepped in to move that the application be approved and a standard order of conditions issued. This time there were three ayes, two nays and an abstention. The result occasioned some legal fencing between Harvard constitutional law Professor Parker and Conservation Commissioner and attorney Roy Watson as to whether a three-to-two vote of a body of, at present, six members could carry under Robert's Rules of Order or under state court decisions to the contrary. Since the Massachusetts Association of Conservation Commissions recommends that commissions follow state court decisions, the commission was now at an impasse. After glances back and forth, audible deep breaths and finally a desperate but futile appeal to Lee to change his vote, Burn re-entered the fray with a yet-stronger assertion that, "This applicant has pursued this matter in good faith and should not be penalized for the shortcomings of anyone else." Smith then asked if a compromise could be fashioned."Can we perhaps limit the size and nature of the house?" she ventured.
After a decent interval for reflection, Brownrigg moved that the commission issue a standard order of conditions with the added condition that the actual footprint of the house when built and the amount of buffer zone disturbance indicated by the haybale line do not in any way exceed that shown in the plan of record. With this written guarantee that future owners/developers could not seek to enlarge their house or expand their back yard toward the wetland, the motion carried five to one with one abstention.
© 2003 The