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HomeMy WebLinkAbout11102009 CONSERVATION EXECUTIVE SESSIONTown of Mansfield RFC(iVED Conservation Commission r0 %i'1 CC Ef_?!1S OFFICE Executive Session Minutes 1��7 November 10, 2009 SEP 25 A 9: 23 Present: Joseph Mulkern, Chairman; Paul Boyden, Vice Chairman; Derek House[ '(gip "rdK MntthFw; Colin Cauldwell; Michele White; Elizabeth Leidhold, Conservation and Environmental Plah`er> /1,(;��'f�+, ) -�s Absent: Jack Smith. Conservation Commission meeting called to order at 7:02 pm. Motion: to enter into Executive Session to discuss 23 Lakeview Avenue with Robert Mangiaratti, Town Council and return to open session. Cauldwell /House. Roll Call Vote: Joseph Mulkern, aye; Paul Boyden, aye; Derek House, aye; Carole Matthew, aye; Colin Cauldwell, aye; Michele White, aye. Vote: 6 -0 -0 Passes The board had questions regarding communication through e- mails. Attorney Robert Mangiaratti, Town Council, told the board that the Open Meeting laws have changed; they are stricter. He reminded the board that e -mails become public record. 23 Lakeview Avenue: Attorney Mangiaratti reviewed the case with the board. An Order of Conditions was issued in September 2006 for a septic system and an addition to the existing home. The septic system and addition were out of the 25 -ft. no touch area. A block patio, landing with stairs leading from the new addition out to the new patio and new decking with pressure- treated lumber leading down to Greenwood Lake were added without permits, in violation of the Order of Conditions, all work encroaching on the 25 -ft. no touch zone. An Enforcement Order was issued on July 7, 2009 with a "Cease and Desist" order. At the October 19, 2009 meeting Attorney Mark Antine discussed whether the patio was a violation of the Town of Mansfield's by -law. He cited Section 2.2 (4) and Section 2.5. Michael Trowbridge of Hutchins - Trowbridge Associates, Inc. proposed a swale on the water side of the property to prevent drainage off the patio from entering the lake. Attorney Mangiaratti feels the patio violates the by -law. A second Enforcement Order was issued on October 27, 2009 and Mrs. Memory was served by Michael Ahern, Conservation Constable. Attorney Mangiaratti told the board Attorney Antine was surprised by the new Enforcement Order; Attorney Antine hoped to discuss whether the swale was an acceptable solution at the November 16, 2009 meeting. Attorney Mangiaratti said sections of the by -law are arguably applicable. Section 2.2 (4) of the by -law reads [normal maintenance, repair, replacement, or improvement to any existing private residential property or components, including, but not limited to: fences, hedges, gardens, lawns, retaining or stone walls, patios, lamp posts, flag poles, or mailboxes]. Attorney Antine argued the new patio is an improvement to an existing patio. Attorney Mangiaratti feels the new patio is not an improvement because the by -law does not allow for an expansion. Section 2.2(4) also reads [Project proponents must thoroughly check with the Commission or its agent for applicability]. He told the board that even if the former agent had given permission for the patio, even if true, it does not preclude the board from taking action - a violation is a violation. Section 2.5 allows for grading work associated with additions to existing single - family homes; was grading done to stabilize the area with pavers? Paul Boyden said there were no patios on site in 2008 -2009 because all the original patios had already been removed when the new septic system was installed. At the October 19, 2009 meeting, Colin Cauldweli recommended installation of a ditch (swale) with trap rock and plantings placed behind the swale to stabilize the bank. He and the decking should be removed and replaced with composite materials. The recommendation failed. Derek House said any changes to the plans had to be brought back before the Commission for approval. Carole Matthew asked if Michele Grenier could be called to explain what she told Mrs. Memory. She felt Ms. Grenier would deny she gave Mrs. Memory permission to do the patio. Attorney Mangiaratti told the board it is best not to talk about the former agent; it does not do any good to go over mistakes she made. He said it is probably in the best interest of Conservation and the town to not talk about Michele Grenier anymore. He said there is a law term called °estoppel', that in certain situations, the law would refuse to allow a person to deny facts when another person has relied on and acted in accordance with the facts on the basis of the first person's behavior. Attorney Mangiaratti outlined three (3) options for the board: 1. The board can do nothing. 2. Go to court and compel Mrs. Memory to remove everything in the 25 -ft. district. 3. Incorporate Colin Cauldwell's ideas — installation of a swale, plantings, removal of pressure- treated lumber — but add a monetary fine to compensate the Commission for the violation. Attorney Mangiaratti told the board option #1 is not a good idea. Option #2 would cause more harm than the original violation; even though the damage was done when she put in the patio, the remedy is worst than the crime. It would cost at least $10,000 to see the case to the end. By putting in the swale, adding a buffer of plantings and removing the pressure- treated lumber, option #3 would result in no long term harm to the environment. A monetary fine of $300.00 per day could be imposed. Attorney Mangiaratti told the board if they chose to go to court, the judge would look at the case and could decide to fine Mrs. Memory and have her remove the patio or the judge could decide to remediate with the swale and the plantings. Elizabeth Leidhold asked if Mrs. Memory needs to file a new Notice of Intent. Attorney Mangiaratti said the board can have Mrs. Memory submit a new NOI and issue a new Order of Conditions or the board can amend the existing Order of Conditions for the remedial work - the swale, plantings and the stairs. Colin Cauldweli argued that by taking out the pavers and returning the area to grass would be more detrimental than the pavers to the environment. The grass would be treated with pesticides, herbicides, etc., which would enter the lake. Derek House asked if Mrs. Memory had included the patio in the filing, would the board have allowed her to do the patio. He is concerned neighbors will think it is better to go for forgiveness after the fact than permission to do the work. R: \Conservation \Minutes \2009 \111009 Executive Session (2).doc Joseph Mulkern said he is concerned because of all the neighbors that have attended the previous meetings; all are waiting to see the outcome because they all want to do their own projects. What is to stop them if Mrs. Memory is allowed to keep the patio? He is also concerned about any monetary gain Mrs. Memory might make because the patio has added value to the property. Attorney Mangiaratti said the board should not focus on any financial gain Mrs. Memory might make at this point, they need to preserve the integrity of the property. Colin Cauldwell agreed; correct what is there and make the monetary fine public record. Carole Matthew said the board needs to consistently enforce the by -law with everyone. Paul Boyden was concerned about the contours; the elevations do not match on the various plans submitted. Colin Cauldwell made a motion to adopt option #3 — add a swale, plantings and remove all pressure- treated lumber and add a monetary fine. Derek House seconded. Motion failed 4 -2 -0 Derek House made a motion to adopt option #2.- to bring suit and compel the removal of the patio as applicable by the by -law and stick to the by -law. Attorney Mangiaratti suggested the motion should read to go to court to compel Mrs. Memory to remove all encroachments in the 25 ft. district. Carole Matthew seconded. Passed 5 -1 -0. Attorney Mangiaratti will contact Attorney Antine and ask him to remove all encroachments to the 25 -ft. no touch area or court action will be taken. Attorney Mangiaratti told the board this will send a message to the public that the Conservation Commission is serious about enforcing the by -law; if you violate the by -law, it will mean hiring a lawyer and you will be fined. Carole Matthew asked Attorney Mangiaratti if the board could start the November 16th meeting an hour early so the board can discuss the Rare Species Habitat Assessment for the Bird Road sub - station project with Mark Grgurovic of Swampwalkers. She asked if the Electric Department had to be included in the discussion. Attorney Mangiaratti told the board to post the notice for 6:00 pm on November 15th but do not tell the Electric Department. The meeting notice should say "Discussion of Bird Road Site ". Attorney Mangiaratti also told the board he has heard from Richard Nylen, Jr., Lester Epstein's attorney, and a PWS will be hired for the certification of the vernal pool on Mr. Epstein's Maple Street (Map 40 — Parcel 92) property. Colin Cauldwell made the motion to leave the executive session and return to open session at 7:40 pm. Carole Matthew seconded. Pass 2�✓�2 - z` /- /1 Joseph Mulkern, Chairman Date of Approval j _ z V Date of Release R:\ Conservation \Minutes\2009 \111009 Executive Session (2).doc