Friday, August 15, 2008
ConsCom steps in to regulate projects begun without permits
If the Conservation Commission (ConsCom) had anticipated the usual summer doldrums, they were in for a surprise, because their July 31 agenda featured two unique projects involving four Enforcement Orders. How could two projects produce four orders?
The first included a violation of the state’s Wetland Protection Act (WPA) on land belonging to two separate homeowners, while simultaneously committing an infringement of a Conservation Restriction (CR) held by a third party. The second and more colorful of the two projects, which first came to light in April, involved an incipient Japanese garden under construction within, and in close proximity to, a bordering vegetated wetland.
The first and more complex of the situations involved two riverfront estates along a common driveway off River Road. The saga began when homeowner Luciano Manganella undertook to solve a problem of ice accumulation along his portion of the driveway. As he explained to the ConsCom, he removed trees from a sharply sloped area to permit more sunlight to reach the road, graded the slope to divert the flow of water to a catch basin, planted a lawn to replace the felled trees and built a new retaining wall along the drive. A set of before and after photographs showed the finished product.
The problem was that the un-permitted construction had taken place within the buffer zone of a wetland associated with the Concord River, and was diverting silt-laden water into said wetland. Moreover, his illegal construction had extended into land belonging to his neighbor David Campbell, and water was also flowing into land under a 5.4-acre CR held by the the town.
As recipient of the priority enforcement order, Manganella told the commission he had discussed his problem with his neighbor before commencing work. Campbell, the object of the second Enforcement Order, was also present, He agreed that he had talked with Manganella about the general plan, but that he had not expected such serious tree clearing, and had not wanted the retaining wall to extend onto his property. Hoping to preserve as much screening as possible for his residence, he had had the property line surveyed and called on arborist John Bakewell to see what he could do to repair some of the damage. That was when he learned that the wall was probably in violation of the WPA, a fact soon confirmed by receipt of the enforcement order. He said all he was seeking now was to see a remedial plan that was acceptable to the commission and would provide him with as much screening as possible. The third recipient, Jane Dawson, head of the Riverloft Trust, was unable to attend the hearing, but informed Conservation Administrator Sylvia Willard that she had suspected a violation, and would certainly cooperate.
Manganella insisted that he had not meant to encroach on his neighbor’s land and had had no knowledge of his legal obligations. Chairman Peter Burn explained that the encroachment on his neighbor was not the commission’s concern. However, ConsCom’s jurisdiction in this matter was manifestly clear, and what was now required was a professionally engineered project plan that they could then evaluate and approve. Elaborating further, Commissioner Tricia Smith indicated that the documentation should include an engineered site plan detailing the topography, resource area boundaries, buildings and, above all, storm water management specifications prepared by a recognized expert.
Burn stressed that, although development of an acceptable remediation plan was clearly Manganella’s responsibility, the commission could not approve the required Notice of Intent without the signature of the other two parties. Manganella was given until late September to comply.
Japanese garden allowed,
The Japanese garden-in-the-making was discovered back in April when Conservation Administrator Sylvia Willard became aware of un-permitted clearing and alteration in wetlands and their buffer zone at the eight-acre West Street residence of Gregory and Pam Bruell. An Enforcement Order was issued at that time requiring the owners to stop work and file a restoration plan. Their remedial Notice of Intent was presented at the July session by architect Louise Hara, Acton CR Administrator Thomas Kidman, acting as a private consultant, and attorney Roy Cramer.
Hara’s description of the proposed garden included construction of a large, concrete-lined pool, with a network of paths and boardwalks that will wind around and over the pool and along the edge of a wetland containing a natural vernal pool. The landscape will be accented by a collection of stones and rock formations interspersed with groves of Japanese maples (which will be supplied from a “tree nursery” on site). Expanses of lawn will contrast with the sylvan theme. To complete the picture, a 15-foot berm at the end of the pool will be built to allow for a waterfall, thus adding to the visual and auditory ambience. Hara explained that the aquatic atmosphere was deliberately designed to encourage and protect salamanders, frogs and other amphibians. As Cramer observed, “This is a fascinating and totally different way of thinking, but of course, that doesn’t excuse the fact that he [the owner] did the work without a permit.” Kidman also conceded that Bruell had already taken out a number of big trees to make room for lawn and the serpentine pool, but he added, “It does let in some sunlight that is helpful in other ways.”
The support team’s ambivalence appeared to have also affected the commissioners. Chairman Burn remarked, “The difference between the original plan and the present one is very significant ... I’m concerned about the possible precedent.” Commissioner Smith first commented, “I like the design a lot,” but then, referring to the portion of the lawn that had been installed, commented, “My biggest concern is that it is a highly maintained lawn …. It doesn’t look very organically managed.” Commissioner Diane Troppoli indicated that she had a hard time reconciling the removal of so many trees to make room for a pool and lawn. “Is that naturalizing it?” she asked. However, Commissioner Jen Bush pointed out that, with the careful preservation of the vernal pool and its environs, they had achieved an amphibian habitat.
Following considerable deliberation, a compromise solution was reached. The public hearing was closed, but with the requirement that a written gardening maintenance plan be filed, that it have a strong environmental emphasis (herbicide and pesticide restriction), and strict gardening practices within the commission’s jurisdictional areas. The resulting plan must be accepted before major work can resume. ∆
© 2008 The