Friday, June 16, 2006
Conscom hears puzzling cases
The growing shortage of desirable, unrestricted lots and the passage of the 2002 Rivers Act have combined to present the Carlisle Conservation Commission (ConsCom) with ever more challenging applications. Two such legal conundrums faced them at their June 8 meeting as they considered Notices of Intent (NOIs) that involved not only the Massachusetts Wetland Protection Act and the Rivers legislation, but some unique local history as well. The first request was a notice filed by Edward and Linda Fields of 333 Bedford Road and the second a filing by Richard Buck concerning a lot on Page Brook Road.
Should ConsCom weigh economic values in projects near wetlands?
The Fields family wishes to build on a fifth lot off a common driveway that was endorsed by the Planning Board in 1987, well before passage of the Rivers Act, but was never recorded at the Registry of Deeds as required by law. The commissioners also noted the text of a Massachusetts Department of Environmental Protection (DEP) website comment to the effect that, "This project does not meet the performance standards [as prescribed in the Rivers Act,]" and "The area of the house and driveway must be limited to the area of construction. The driveway turnaround can be moved to the opposite side and the house could be reduced in size."
A "preferred" plan for a house, driveway and utilities, plus two alternate plans were presented by engineer George Dimakarakos of Stamski and McNary. The preferred plan would require work in both a wetland buffer zone and the Riverfront Area, while the alternatives would eliminate those incursions and have "less adverse impact" on the resource areas. However, the engineer argued that, since the Rivers Act makes an allowance for economic loss, the preferred plan could be considered. He also labeled the failure to register the Planning Board endorsement a "technicality" that could be corrected.
Introduction of the economic consideration led to varying estimates of the relative costs that involved a longer driveway, a possible Fire Department requirement for a cistern and whether the value of an existing house would be diminished. When Commissioner John Lee asked in some frustration, "Why do we, the Conservation Commission, have to discuss value? That's not within my purview: protection of wetland resources is!" Dimakarakos rejoined, "Yes, it is. It's in the regulations. They say profit should be considered."
Commissioner Roy Watson entered the fray, saying that all the commission was trying to do was to introduce a "balancing analysis." That involved the fact that there were two alternate plans that would reduce the impact on the Riverfront Area, but he was not convinced that the regulations cited would make the economic argument valid.
The discussion ceased for several minutes while all six commissioners read and reread the pertinent Rivers Act regulations .Finally Commissioner Peter Burn spoke up, "I for one am happy to leave the decision up to our lawyers." All eyes turned to Commissioners/ Attorneys Kelly Springham and Watson but their colleagues were disappointed. "The lawyers don't agree," said Watson.
Since the meeting was already running behind schedule, there was agreement to continue the hearing to 9 p.m., June 22, "to allow for more study."
Page Brook Road case confusing
The facts in the Buck case were equally muddled. The present owner wants to construct a four-bedroom dwelling, driveway, utilities and retaining wall near a Bordering Vegetated Wetland (BVW) with its 100-foot buffer zone and a Riverfront Area surrounding Pages Brook with its 200-foot restricted zone. Again, the engineer, this time Rich Harrington, suggested a primary plan accompanied by two possible alternatives. The boundaries of the BVW and Riverfront had been accepted by ConsCom last fall, but a question about the presence of a vernal pool had been left in doubt. This spring's heavy rains and the home-building zeal of an extended family of beavers now complicated the picture.
Wetland delineation specialist, David Crossman, was on record as convinced the vernal pool did not actually exist and therefore did not need to be considered by either the Board of Health or ConsCom. At a preliminary hearing May 25, abutter David Reed had reported that the associated flood plain was actually more extensive than shown on the map and that the beaver and duck families had been there for years, as had the vernal pool. Following a June 1 ConsCom site visit, some commissioners were also questioning Crossman's negative assessment of the vernal pool.
To complicate matters further, Reed and others had testified that a former owner had applied to get the lot approved in the past, and it had been found to be "unbuildable," and its tax assessment lowered as a result. At the June 8 session, Conservation Administrator Sylvia Willard reported that town records showed it had once been so classified because of "insufficient frontage," but that the present status appeared to be uncertain.
Harrington responded that he believed the lot to be buildable, and assured the commission that he would attempt to meet the DEP misgivings where possible. Nevertheless Commissioner Watson returned to the question of buildability. "If it's taxed as a non-buildable lot, it's non-buildable," he insisted, adding that, until that question was settled, there was no reason for ConsCom to discuss construction alternatives.
Trying to retrieve something positive from the exchange, Harringtom asked if the commissioners were ready to accept Crossman's decision on the vernal pool. Again receiving a negative response, he suggested that peer reviewer Dr. John Rockwood of EcoTech be consulted. Both parties agreed to accept that specialist's opinion as final, and the hearing was continued to June 22.
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