Friday, April 30, 2004
ConsCom squeezed between enforcement and compassion
Faced with a decision about a conservation easement violation that not one of the seven members of the Carlisle Conservation Commission (ConsCom) was anxious to make, the board struggled for consensus until after 11 p.m. on April 22. Even at that hour, a binding vote was finessed.
The violation that occasioned the enforcement dilemma was first reported to the Commission in July 2003 when the Conservation Restriction Advisory Committee (CRAC), which is charged with monitoring conservation restrictions, advised them of a serious infringement of a restrictive conservation easement in the Tall Pines subdivision. Although CRAC members David Kelch, Wayne Davis, Eunice Knight and Tom Brownrigg were convinced that homeowners Linda and David Chateauneuf had been unaware of the extent of the acreage covered, the couple had committed a clear violation by building a basketball court and digging a supplemental well in the restricted area.
At that time, the Chateauneufs were informed that although members of both committees involved regretted the emotional and financial discomfort such action would involve, the two structures would have to be removed. However, they were given time to explore the best means of compliance and asked to report back by spring.
Last Thursday Linda Chateauneuf appeared, with the status of the basketball court removal in hand. The project had gone out to bid and they were awaiting a final response before proceeding. In the meantime there had been much discussion concerning the well, since the homeowners were faced with a serious water shortage on their lot. To complicate matters, agents of the Board of Health had discovered that the plumbing and backwash system for the auxiliary well had been improperly engineered and could threaten not only the Chateauneufs' water potability, but also that of the entire neighborhood. Thus, if the well were allowed to remain, the plumbing would have to be redone, and the water could be used for irrigation only. The family was therefore uncertain about the best course to follow, but hoped they would be allowed to leave the well in place.
There was disagreement about disposition of the well among ConsCom members. Although they were all sympathetic to the homeowners' problems, the fact remained that the original conservation restriction on the environmentally sensitive area clearly stated, as did the Chateauneufs' deed, that the well did not belong there. Some ConsCom members felt strongly that it should be removed, while others, cognizant of the water supply dilemma say, "It's there, so why not use it."
Concerned with the precedent that disregarding a violation might set, Commissioner Peter Burn pointed out that the whole fiasco should stand as a warning to others, lest they trust their realtors, lawyers, plumbers and inspectors to look out for their long-range welfare.
Also expressing sympathy that homeowners whose actions had been taken "in good faith," should be hurt, Commissioner Roy Watson reminded them that a conservation restriction is written to protect vulnerable resources, and if the Commission were to overlook this infringement, the next violator, who might or might not be so innocent, could demand equal treatment. Since the structure is not the primary water source, he would vote to cap it and/or pull it. "The only way we can do our job is to cut it off," he asserted. Then, turning to Commissioner Brownrigg, he asked how he, as a CRAC member, would vote in the matter. Brownrigg said that although CRAC members clearly felt the basketball court should go, they were not convinced the well needed to be pulled. Whereupon Watson announced that he would be willing to not enforce the well cutoff if CRAC agreed. Burn demurred, "CRAC brought the problem to us; it's up to us to decide whether or not to use our enforcement power."
Testing the waters, Lee made a "nonbinding" motion that, "We acknowledge that the well is in the restricted easement and is illegally placed, but we will not require that it be removed or decommissioned." The straw vote was five to two in favor, with Watson and Schultz opposed. A formal vote was then passed asking CRAC to comment on the "non-binding" vote before the Commission takes a final tally.
© 2004 The