Friday, November 14, 2003
ConsCom: No wetlands penalties "until we see how things go"
After threatening to levy a penalty for initiating construction in a wetland buffer zone without a permit, the Conservation Commission has opted to give the offenders a chance to reduce its severity through proof of contrition. The applicants, Michael and Laura Baliestiero, and their professional advisors, were absent as the commission imposed stiff conditions for allowing interrupted construction at the end of Berry Corner Lane to proceed.
Enforcement options and responsibilities
Following approval of a tardy Notice of Intent to build (see box at right), chair Tricia Smith led off the November 6 discussion of ConsCom's options and responsibilities for enforcement of Carlisle's Wetland Protection Bylaw and traced the logic that she and commissioner Roy Watson followed in developing a recommendation for action. Their conclusions recognized the obligation to penalize the couple because of the serious nature of the infraction, namely, undertaking home construction that involved massive fill operations reaching to within 13 feet of a wetland without obtaining a permit from the commission. Next, they referred to Article 10.3 of Carlisle's Wetland Bylaw, which empowers the commission to request that the Board of Selectmen and Town Counsel take action under civil law or that the Chief of Police act under criminal law. Further, Article 10.5 states that violation of any provision of the Bylaw may be punished by a fine of up to $300 per offense, with each day during which a violation continues constituting a separate offense. It appeared to them that the chronology of events in the Baliestiero case could bring the violation span as high as 76 days for a total assessment of $22,800.
Smith reported that she and Watson next turned to consideration of the commission's objectives in levying a penalty, and identified three: to comply with the law, to protect the wetland resource area over time and to mitigate immediate threats to that resource. They also determined that there was a two-year window before any penalty had to be imposed.
Given the above facts, it was their recommendation that the commission levy no fine at this time, and that they inform the Baliestieros that their performance of the construction work under the conditions set out by the board could determine the nature and extent of the eventual penalty. The commission would monitor construction activity carefully, making a formal evaluation of progress every six months, and reporting to the Board of Selectmen as facts on the ground warranted. This would fulfill the ConsCom's responsibility to protect the wetlands and add an elected board to the penalty process.
Watson emphasized his conviction that the town, not a single board, needs to decide how to act on major enforcement issues. He warned, "Failure to take action can be precedent-setting. We must make the public realize that we are serious about compliance with our laws." On the other hand, Watson reminded his colleagues that Baliestiero had insisted he had no knowledge that the wetland was there. "I can't live in his mind," Watson commented, "but if he is really regretful for what was done, let's see how well he makes out on mitigation." The commissioner concluded with the observation that it will be much more difficult to follow the commission's order of conditions now that substantial mitigation is required than it would have been had the board been consulted in the first place.
Member John Lee concurred with the Smith/Watson approach saying, "We are not ready at this time to make a decision on penalties until we see how things go." Commissioner Peter Burn cited real difficulty in telling the difference between an innocent mistake and an attempt to get away with a violation. "I need to see a track record," he challenged.
Sensing the slide toward what he considered excessive leniency, observer Jay Luby guessed that 99% of Carlisleans want to abide by the town's laws, and that he found it "troublesome that if someone in the remaining one percent wants to violate the law here, they too often get forgiven." He felt that deterrence was the real issue and didn't find $300 per day to be such a large amount, considering the infraction. "You can't accept an attitude that leads some people to take advantage of the system," he admonished.
Commissioner Tom Brownrigg took exception, saying that he feared he didn't know all the facts and that he couldn't help blaming, in part, the engineers who worked for the Baliestieros. To which new commissioner Tom Schultz replied that this outlook reminded him of the corporate CEOs who have complained that that they weren't informed by their underlings about what was going on.
Brownrigg then added that he didn't feel that he knew what an appropriate fine might be. "High fines could be very tough on some people and mean next to nothing to someone else," he explained. To which both Luby and Watson brought up the so-called "cost of doing business" syndrome whereby a well-heeled resident might decide, "I'll do what I want and figure the fine as part of the expected expense."
Threat on answering machine
Lee then summarized what appeared to be the commission's consensus, declaring, "If there is ever a fine-able issue, this case is the poster child... I have no qualms about penalizing, but I think it is valuable to give the applicants a chance to make up for the damage done." But in a reference to an answering machine warning left on the Conservation Administrator's office phone by one of the applicants, he added, "If they sue us anyway, we'll fine them."
© 2003 The