Friday, November 5, 2004
ConsCom, Hutchins Road landowner reach impasse
A violation of two easements in the Tall Pines subdivision appears to be headed toward litigation after 15 months of off-and-on-again negotiations. Construction of a basketball court and an irrigation well in the restricted areas was first reported to the Conservation Commission in July 2003, when the Conservation Restriction Advisory Committee (CRAC) informed them of a serious infringement on a lot owned by Linda and Dennis Chateauneuf. *(see Mosquito July 18, 2003 and April 30, 2004 available on the Web.)
In the intervening months, there has been continued back-and-forth consultation but no concrete action by either the commission or the owners. This standoff became a face-off at the commission's October 28 meeting, when Chateauneuf appeared with his attorney Lou Levine. The intense exchange that ensued cannot be understood, let alone assessed, without a bit of history.
The Tall Pines locus was almost certain to arouse some heat, because the restrictions involved were forged in the mid-1990s when Tall Pines Realty Trust was seeking both state and local approval for development of the environmentally sensitive area. In the end the Trust granted easements "in perpetuity" in order to protect the historic Carlisle Pines and a critical wildlife habitat. At the July 2003 hearing, both CRAC chair David Kelch and ConsCom chair Tricia Smith expressed deep sympathy for the Chateauneufs, whose infringements they then considered had been inadvertent and "in good faith."
While conceding that the infractions clearly existed, the Chateauneufs pleaded for a compromise that might permit them to keep the sports facility, or at least, postpone its removal. They were told that, as sympathetic as ConsCom was, members would not be doing their duty to the town if they failed to hold landowners to the restrictions. Therefore, the illegal structures needed to be removed and the area allowed to naturalize. However, since Chateauneuf mentioned the possibility of seeking legal counsel, he was told that no enforcement action would be taken immediately, but that "the final outcome is inevitable."
Following further consultation with CRAC members, the family appeared to have accepted the ultimatum, but with winter coming on, they needed more time to explore the best means of compliance and were asked to report back in the spring. Thus, on April 22, at the request of the board, Linda Chateauneuf appeared before them and reported that removal of the court had gone out to bid and they were awaiting a final response before proceeding with the project.
In the winter hiatus, there had also been consultations with the Board of Health and others concerning disposition of the well, because the homeowners had been faced with a serious water shortage on their lot and did not want to lose what they had. ConsCom members were divided as to whether or not to require dismantling of the well. Some felt that since it was already there, and removing it would cause secondary disturbance, it might as well be used. Others felt strongly that the commission would be setting a dangerous precedent were they to overlook this second infringement, especially since water problems have cropped up on other lots in the subdivision.
The upshot was a straw vote that stated, "We acknowlege that the well is in the restricted easement and is illegally placed, but we will not require it to be removed or decommissioned." The "non-binding" tally was five in favor, with commissioners Tom Schultz and Roy Watson opposed. A follow-up resolution then passed, asking CRAC to comment on the unofficial motion.
Reporting on action taken at his committee's subsequent meeting, Kelch indicated, "We felt there was no alternative to enforcing the restriction a- propos of both the court and the wellThe vote was unanimous."
With this opinion factored into their decision-making process, the commission asked Chateauneuf to attend the October session to report on the status of the basketball court project. This he did, but with Levine as his spokesman.
The lawyer declared that his clients were willing to remove the "sports court," but wanted to wait until their daughter graduated from high school in approximately three years, at which point they would return the area to its natural state. However, the attorney added that he did not believe the well to be in violation of the easement, and although he did not want to argue the point at that time, he also did not believe the two easements to be legal in the first place.
Asked to elaborate on these opinions, Levine quoted Easement 2 as listing a number of prohibited usages, with the exception of trails and "outdoor recreational use." As for Easement 1 that covers the location of the well, he claimed it accepted underground utilities. Finally he said all of this was, in his opinion, moot since, as far as he could see from the documentation, the restrictions had never been accepted by the State of Massachusetts, and therefore were not in force.
When Watson, now ConsCom chair, asked Levine if he could cite any cases to back up his last point, there was no direct answer, and the exchange threatened to become rather heated. CRAC member Wayne Davis interjected, asking to what paragraph in the easement Levine was referring when he opined that "underground utilities" were permitted in Easement 1. Levine replied that the text containing the prohibitions in that area stated that all utilities "on or above ground" were not allowed, but didn't mention utilities below ground. Both Davis and CRAC member Ken Harte cited other language in the easements that made Levine's interpretation highly dubious. As for the lack of state approval, Davis pointed out that Carlisle's Town Counsel had shepherded the documentation through the legal process, while commissioner John Lee pointed out that state Director of Conservation Services Joel Lerner has also advised recently that irrigation problems do not justify violating conservation restrictions, and that the offending well should be "disabled, cut off, and covered with soil."
Since Levine continued to declare that he was not present to argue legal points but rather to present his client's offer, Chateauneuf himself spoke up and asked the commission to "reconsider and not end up in a legal tangle." He also repeated the offer to remove the offending sports court in three years, while being allowed to retain the well. Schultz pointed out that the commission had that very evening talked to two people with conservation restriction violations in another part of town, who were working with the commission. "A lot of people have worked hard to protect these and other sensitive areas. What do we do about setting bad precedents?" Chateauneuf replied, "I don't know how to go any further."
Watson proceeded to quote from the minutes of the Chateauneufs' prior testimony in which they had promised to remove the court "within one year," and asked if the landowners were "immovable" as far as the well was concerned. When the reply remained affirmative, Lee expressed "disappointment" that no solution seemed possible, and that the Chateauneufs' present stance did not contribute to further discussion, whereupon the Chateauneuf party departed.
The almost immediate reaction was unanimous passage of the following declaration: "The Conservation Commission finds that the well located at 219 Hutchins Road is in violation of Tall Pines Easement 2, and that the sports court at the same location is in violation of both Easements 1 and 2."
Since the possibility of litigation clearly exists, ConsCom and the CRAC representatives agreed to schedule a joint executive session, possibly to include the Board of Selectmen, tentatively set for 7 p.m. on November 18.
© 2004 The