Friday, February 2, 2007
Round 3 for Mark and ConsCom but still no agreement on remedy
For the third time, compromise between the Conservation Commission and a team representing Concord Street homeowner Theodore Mark eluded the negotiators at a meeting on January 11. The problem first surfaced in November of 2006 when Conservation Administrator Sylvia Willard discovered a number of discrepancies between work in progress at the site and the Order of Conditions that had accompanied commission approval of his 2005 Notice of Intent (NOI) to build on his lot at the corner of Bingham Road.
Anxious to remove what they considered immediate threats to the nearby wetland, the commission dispatched an Enforcement Order halting work on the property and calling for the owner to appear at a November 30 meeting.
Mark has been represented at that and two subsequent sessions before the board by Wetland Scientist Sean Hale of David Ross Associates and Attorney Alex Parra. These consultants offered an Amended NOI that described five departures from the original plan. The first was an unauthorized extension of a retaining wall that had caused 180 square feet of fill to be dumped into and around a portion of the wetland. The other violations included an already completed drainage trench, an enlarged footprint for the garage, one paved and one unpaved driveway and a pile of rocks and other material not shown on the original plan. Because of the anticipated approach of winter weather, it was agreed that the first order of business was to stabilize the site: they could discuss longer range remediation and possible monetary penalties after the first of the year.
Long-range remedies discussed
At a January 11 continuance, commissioners said they were satisfied with the work done to stabilize the site, and were ready to consider long-range corrective measures. Of primary importance to the majority were the effects of Mark's incursion into the wetland. There was considerable discussion as to whether to leave the offending wall extension where it was and develop a wetland replication (replacement) area elsewhere on the lot, or to remove that portion of the wall and return the resulting void to its natural state.
Commissioner Tricia Smith next turned attention to what she termed "the ad hoc drainage system," and expressed a strong preference for a standard vegetated recharge area with the rocks removed. All members seemed ready to accept a somewhat enlarged garage but warned against "excessive impervious surface" for the driveway. In the end Hale was asked to draft a revised plan that would accomplish what he felt would be a suitable engineering remedy.
Amended NOI not acceptable
What Hale offered at last week's session was a plan for the wall that was preferred by his client, i.e., to pull the discredited portion back out of the wetland and thus, it was hoped, avoid the need for a replication area. When asked if that wouldn't cause even more disturbance of the wetland, he said Mark feels certain he can do it with very little further damage. As for the suggested replication operation, Hale felt that would engender even more disturbance, and in any event, the only potential location would require removal of trees in the town's right of way on a "scenic road," and might be nixed by Tree Warden Gary Davis.
Turning to the rock-strewn drainage ditch, Hale said he believed it to be "definitely adequate" to filtrate the water, "so it's okay after all for the storm water function." Smith replied, "It's not going to work for more than a couple of years. Fix it." Commissioner Diane Troppoli noted that the plan now showed a paved driveway from Bingham Road around the garage to a sizable parking area and reminded Hale that, "We wanted a reduction in the impervious surface; this doesn't look like it."
Client "just did what he pleased"
Commissioner Peter Burn raised the problem that underlaid the whole discussion when he observed that Hale's client, "just went ahead and did what he pleased, and now we're faced with facts on the ground that we never would have approved. How do we assure that this doesn't become a modus operandi for others to just pay a fine and, in the end, get what they want?" Burn received immediate support from Smith who declared, "I'm in Peter's camp on this," and pointed out that when the application was first filed, it was clear to the board that Mark was dealing with a problem lot, "and we went out of our way to come up with a plan that would moderate it and give the client some lawn." She concluded with the observation that there was a lot of impervious land in the present plan and a drainage system that the commission would never have approved."
Parra then cautioned that his client "marches to his own drum," and warned further, "If you deny [the amended NOI], we can appeal. If you issue [a second ] Enforcement Order, we can take it to Superior Court." In a casual legal interplay, Chairman Roy Watson acknowledged Parra's expertise in environmental land law, but took exception to his opinion in this particular case. Burn interjected that he would prefer to find some middle ground, "as long as we see something that's closer to the original [NOI]." Parra then asked for a continuance and the date was set for March 8 at 8:30 p.m. to allow Hale to come up with a plan everyone might agree with.
© 2007 The