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Home My WebLink Aboutmin of conservation com 01/27/2003 exec II t., p ~ ! I. r' \ I r.. ''> .' !"';~ :~~L,l~ltl:i Conservation Commission Meeting !. fir:: !~rF ICE January 27, 2003 OS ..JMI 20 4N 9: 50 EXECUTIVE SESSION MINUTES 1'1.[, r {'. L .... Hf~SSA'CHUS D Present: Paul Boyden, Chair; Carole Matthew, Bob Bean, Diane Ready fTTS Richard Lewis, Conservation and Environmental Planner ~ 13. Discussion with Town Counsel Mr. Mangiaratti said he had been contacted by Mr. Boyden with respect to a potential violation on Karl Clemmey's property on South Walnut Street. Mr. Mangiaratti said he had reviewed the file, and said it appeared the landowner was altering a wetland that was protected by the town's by-law, but not the state wetland protection act. Mr. Mangiaratti said he then spoke with Mr. Boyden and the Town Manager and prepared a complaint to file in superior court to enforce the local wetland by-law. Mr. Mangiaratti said unlike the state regulations, there is no DEP appeal of the local by-law, so it would go directly to superior court. A complaint to superior court was prepared. ~ Mr. Mangiaratti said the last time a superior court complaint was filed was for a filling operation on Spring Street. At that time, the Board of Selectmen was upset because it was not informed about the complaint being filed. In connection with this violation, Mr. Mangiaratti wrote the Board of Selectmen a letter on January 15, 2003 letting the members know what was occurring. A week later, the Board of Selectmen voted that it wasn't comfortable going forward with the court action and thought the commission was taking care of it. Mr. Mangiaratti said some town staff have told him they are uncomfortable with the Board of Selectmen pre-empting the commission in this matter. Mr. Mangiaratti said he wanted to meet with the commission to be sure he understood what was occurring. He said he wasn't aware of any policy where the commission has to wait a certain amount of time before it acts on a violation, as the Board of Selectmen has suggested. He said this matter was before the board for an Order of Conditions, which was denied. Mr. Mangiaratti said when the commission acts in good faith, the town should support it. He said he had requested permission from the Town Manager to speak with the commission about this matter, and said the Board of Selectmen stepping in on this could effect other boards. He said the Board of Selectmen should think about whether it should impose the cooling offperiod, as has been suggested, then revisit the matter in 45 days. He said if the commission is uncomfortable with that, he would pass it on to the Board of Selectmen. Mrs. Matthew asked what the Board of Selectmen thought would happen in 45 days. Mr. Lewis explained he was called to the Selectmen's meting last week and had the sense that the board wanted the commission to write up an enforcement order to replicate and revegetate the wetland and to stabilize the slopes, and get it to Mr. Clemmey for an agreement. Mr. Lewis said he thought the Board of Selectmen felt that if Mr. Clemmey agreed, the court issues would be moot, since the goal of any ~ r- enforcement order is compliance. Mr. Lewis said even if the applicant agreed to the replication, it wouldn't necessarily be completed. Mr. Boyden said he was approached on Sunday as he was leaving church by Mr. Dan Clemmey, who said DEP didn't want to get involved in this matter and the commission shouldn't do anything about it. Mr. Boyden said that was not the case, and that Ed Burke from DEP told him the commission should file it to go along with state's complaint on Essex Street. Mr. Mangiaratti said towns have the right to create regulations more restrictive than the state act, which is what Mansfield has. He said this 7,800 square foot isolated wetland is not under the jurisdiction of the state, but the commission is authorized to act on it. Mr. Mangiaratti said the fact that DEP didn't act on this means nothing because the town has the authority in this case. Mr. Bean said when the members volunteered to serve on the commission, it was by appointment of the Board of Selectmen, who gave the certain authority to act for the town. He said he took affront with the Selectmen telling the commission how to do its job, and said if that was what the Selectmen want, they should put it in writing and present it to the commission. r Ms. Ready said she thought the Board of Selectmen were concerned about spending money considering the current financial situation, but asked if they were aware of the Essex Street situation, where the same applicant was given 45 days to remedy a violation and nothing has been done. She said this is an obvious example of precedent. She said there have been other cases of violations where applicants was given time, and those applicants did repair the damage. Mr. Mangiaratti suggested informing the Board of Selectmen of things they may not have considered, such as the fact that this very wetland was before the commission for a public hearing. At that hearing, the commission considered it and made a decision based on the law, so this is not a random piece of property or a rush to act on the part of the commission. He said the commission should explain it feels this is a case that requires immediate court intervention, especially considering the Essex Street property, which was given time and not remedied. Ms. Matthew said it is easier for the applicant to do something illegal and still make money, and asked whether the punishment would penalize him fmancially. Mr. Mangiaratti said the local by-law does not impose financial penalties. He suggested the by-law could be amended by town meeting to include an allowance for waivers or variances, because there might be cases where that is prudent. He also suggested other enforcement mechanisms, including fines, and said the court will only issue an order to stop the work. Mr. Boyden asked if that would mean stopping work on the entire site or only in the wetland area. Mr. Mangiarrati said the request is for a temporary restraining order to stop work on the locus in violation ofthe Mansfield wetland by-law r' r- and requiring restoration, which would not shut down the Erin's Centre work. Mr. Mangiaratti said the parcels are owned by different entities. Mr. Mangiaratti said the Board of Selectmen may believe every case is handled the same way, with the commission immediately issues an enforcement order; however, the commission rules on a case-by-case basis. Ms. Ready said it appeared the reason the commission's decision was flouted was because it is a local and not a state by-law, and said if the commission allows that to happen, others will believe they can alter wetlands anytime without having to worry about being penalized. Mr. Lewis said if the Board of Selectmen had read what Mr. Mangiaratti had drafted, they might have understood the issues. Mr. Lewis said Mr. Clemmey had asked him what he could do on the property in June 2002. Mr. Lewis said he explained the options to Mr. Clemmey, along with a colored plan showing exactly the work that could be done. Mr. Clemmey then filed the Notice of Determination, and he knows the process and the by-law. Mr. Mangiaratti said he would speak to the Board of Selectmen at its next meeting and suggested requesting it reconsider its decision and allow the commission to go ahead with this action sooner rather than later. r Motion: To write the Board of Selectmen a letter asking it reconsider moving ahead immediately with legal action to seek an enforcement action against Karl Clemmey on South Walnut Street (Ready- Mr. Mangiaratti said he would explain to the Board of Selectmen that the commission had considered this carefully during the public hearing process and came to a decision based on the law, and ask the Selectmen to reconsider. Mr. Boyden said he and Mr. Lewis met with the Town Manager before the Selectmen's meeting and he had been supportive of going forward with the action. Mr. Lewis said he would draft a memo to the Board of Selectmen indicating the vote tonight with three or four items explaining why the commission feels this is important to go ahead with now. Bean) All in favor. PASSES Motion: To come out of executive session (Bean-Ready) All in favor. PASSES f~1 1/20/05 r