Friday, March 30, 2007
After months of debate, ConsCom denies homeowner request
Unable to negotiate a compromise with representatives of homeowner Theodore Mark, Conservation Commission (ConsCom) members voted unanimously to deny the applicant's Amended Notice of Intent for a home construction and landscaping project at the corner of Concord Street and Bingham Road, and sent the contentious discussion back to square one at their March 22 meeting.
In November Mark received a ConsCom Enforcement Order to cease work on the construction site and to remedy what the commission had found to be serious violations of the terms of their 2005 approval of his project. On January 11, the applicant presented an Amended NOI that called for construction of an enlarged garage and parking area, removal of the intrusive portion of the stone wall and a driveway from Bingham Road rather than Concord Street. The commissioners found this proposal, and an amended plan offered on March 8, unacceptable.
The commission's rejection of the amended plan was given "without prejudice," but will be followed by a second Enforcement Order specifying the actions the owner must take to correct his admitted deviations from the original NOI. At the request of Attorney Alex Parra who, together with wetland scientist Sean Hale, has represented Mark at four previous sessions, Parra will be provided with a draft of the new and more precise Enforcement Order, before it is presented at a public hearing.
Once the remedial steps specified in the order have been fulfilled by the homeowner, he will be free to file a new NOI. That request would probably include additional work for which agreement has emerged during the prolonged negotiating process. Whether this course of events will unfold as outlined is uncertain, because the commission's denial can be appealed to the Department of Environmental Protection (DEP), and/or the Enforcement Order can be contested in court.
It was clear from the commission's stated rationale for their decisions that they believe their actions to be on firm legal ground. First, as Watson presented it, the applicant could have appealed the original Order of Conditions, but he chose not to do so and instead went ahead and did what he wanted to. Second, the DEP looks askance at Amended NOIs that go substantially beyond the originally approved plans and has reversed such a ConsCom approval in the past.
The formal listing of the applicant's violations from the original plan was as follows:
• Extension of an approved stone wall and associated back-fill beyond specifications,
• Intrusion of said wall and associated fill into 185 square feet of the wetland itself,
• Creation of lawn area beyond the limit of work in an area abutting the wetland,
• Additional unapproved fill in an area at the front of the lot and
• Construction of a drainage structure at the front of the lot.
The new Enforcement Order will focus on correction of deviations from the original order and the steps to be taken to restore the site.
Why negotiations broke down
The issues that brought the final breakdown in negotiations over the Amended NOI concerned drainage and the percentage of impervious surface inherent in the proposal. When the March 22 session opened, Hale introduced Ross Associates Engineer Neil Gorman as a consultant with extensive storm water management experience, to describe changes he would recommend to bring the unengineered retention basin installed by Mark into compliance with DEP standards. He stated that he believed the resulting "infiltration trench" would take care of whatever drainage came off the impervious surfaces associated with the driveway, garage and parking area and would handle issues raised by Commissioner and Civil Engineer Tricia Smith in a written critique dated March 12.
Smith agreed that the proposed changes were an improvement over the initial amendment request, but expressed continuing skepticism about the ability of the infiltration trench to handle the volume of water that could be introduced from outside during a major storm event. She noted that potential sources could include not only the garage complex, but also runoff from Concord Street, Bingham Road and an abutting lot. Referring to previous "ponding" in the front of the property, she found the grading information "insufficient to indicate where the probable overflow could go." Finally, she indicated continuing concern about the tendency of infiltration trenches to clog over time.
At that point Parra indicated considerable frustration over the lack of progress made in five meetings in which he felt his client had made significant concessions to no avail. The commissioners responded that those "concessions" had applied only to the changes proposed in the Amended NOI, which itself went beyond the requirements of the original order. Commissioner Peter Burn agreed that there had not been a lot of movement on either side and added, " I think we have come to a point of impasse." With a conciliatory agreement that the Mark team had the wishes of their client to support, while the commission too had a client — namely the Town of Carlisle — to protect, the public hearing was closed and the decision made to issue a second Enforcement Order, while leaving Mark with the right to file a new NOI, once the site has been restored.
© 2007 The