HomeMy WebLinkAboutmin of conservation com 04/14/2003 exec
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Conservation Commission Meeting
April 14, 2003
Executive Session Minutes
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05 JAN 20
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2. Executive Session Discussion with Town Counsel
Carrigan Case (Willow Street lot)
Town Counsel Robert Mangiaratti explained he is assembling the record on this case, to
be filed with the court. He said the court will decide whether the record supports the
commission's decision, which he said would likely happen. He said the Carrigans feel
the board made its decision in error and was, in effect, a regulatory land taking. Mr.
Mangiaratti has contacted the attorney general's office, but he has not heard back. He
also wrote a letter to the Carriagan's attorney, who has sent the appropriate materials
from that side to the attorney general. Mr. Mangiaratti said he believes the board acted
in good faith, and that the record will uphold the board's decision to deny the permit for
a second lot on Willow Street.
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Clemmey Case (South Walnut Street Wetland Violation)
Mr. Mangiaratti explained a restraining order has been issued, preventing the
Clemmey family from doing any further work on the land referenced in the original
Notice ofIntent. Mr. Clemmey's attorney has argued the wetland is not jurisdictional
because it contains less than 5,000 square feet, but Mr. Mangiaratti has told the court
there is no way to tell that because the land has been so altered. He also told the court
that this issue was already been decided, when the court issued the restraining order. He
said the original notice of intent required the commission to make a decision on the size
of the wetland, for which the VHB data was used, and the commission decided not to
rehear the issue after the original denial. Mr. Nylen, Mr. Clemmey's attorney, has
asked that the issue be reheard and pointed out the by-law says when there is a Request
for Determination of Applicability, the commission "shall conduct a public hearing."
After some additional research, Mr. .Mangiaratti said the law is clear that in
administrative adjudicatory hearings, once the decision is made and the appeal period
expires, the decision is binding.
He has received a letter from the applicant's attorney saying the Clemmeys would be
willing to fund an independent soil scientist to review the wetlands. Mr. Mangiaratti
has spoken with the applicant's attorney and told the commission that because the area
has been altered, if it agreed to this course, it would also want all the engineering data
that went into the VHB application for the original notice of intent, as well as the data
for the Erin's Centre project, in which this wetland was identified. Mr. Mangiaratti said
if the commission was to decide to reconsider the Determination of Applicability that
could be made a condition.
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Mr. Lewis said Appledore Engineering, which did the Erin's Centre project, came to the
commission in 1993 for resource area determination on work relative to the resource
areas, and the commission determined that work was in the buffer zone and required a
Notice ofIntent. The isolated area was called a BVW at that time; Mr. Clemmey then
submitted a Request for Determination for work on a small area, which received a
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negative determination. New England Environmental came to the commission in 2000
for a determination, which was used as the basis for the Erin's Centre filing, that
showed the isolated area to be approximately 11,250 square feet. In 2002, VHB showed
the same area as being approximately 7,500 square feet.
Mr. Mangiaratti said he would be content to defend this on the legal argument that it has
been resolved and doesn't have to be heard again. However, he said it might be prudent
to allow the Request for Determination of Applicability to be re-filed and reheard under
the above conditions, with the commission using its own expert. He said that would
create a strong record and the commission wouldn't have to rely only on points oflaw,
it could rely on facts determined by experts. Mr. Mangiaratti said this is the time for a
technical decision, using either the summary information given in the original VHB
presentation, or getting all the past information from the other engineers using an
independent scientist.
Mr. Lewis said the town has spent a lot of time and money on this, and suggested the
applicant be required to pay the town's legal expenses incurred to date. Mr. Mangiaratti
said that was logical.
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Mr. Boyden said he was concerned about what kind of determination could be made
now that the alteration has been completed. Mr. Mangiaratti said he assumed the past
engineers have retained good records, which will show what kind of soils and
vegetation they saw before any work began. He said there is a jurisdictional question,
because the applicant is now saying the wetland area is only 3,500 square feet. He said
getting the applicant to pay for a scientific analysis of all the records of all the engineers
over the last 10 years will give the commission a lot more support for its decision.
Mr. Lewis said he was confident VHB still has their records because he has spoken to
Paul Knapick, but he isn't certain Appledore or New England Environmental will still
have theirs.
Mr. Boyden asked if those records could be subpoenaed. Mr. Mangiaratti said he didn't
believe they would be able to release client records without the client's permission.
However, he said he can ask the engineering companies if they still have the records.
He said the offer could be made that the commission will reconsider the application if
the past records are produced. He said he could find out how much data exists, then
decide whether it will be enough to reconsider the application.
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Mr. Mangiaratti said the board had originally thought it wasn't a bad idea to move the
wetland, but felt it was constrained by the by-law, so the application was denied. Ms.
Ready said she was concerned that other parties who had been denied might come back
claiming their site wasn't jurisdictional. Mr. Mangiaratti said a judge may want to
know definitively how much wetland area there really was. Ms. Ready said there is no
way to answer that question because the site has been altered so much. Mr. Mangiaratti
said there was some discussion by the applicant's attorney at the court hearing about
there having been excavation on part of the site, but not in the area in question.
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/- Mr. Lewis said an independent scientist would look at things like historical data and
aerial photographs to try to determine the original conditions. He suggested another
condition saying that once a final ruling from the independent scientist, Mr. Clemmey
abide by that ruling. Mr. Mangiaratti said the by-law shouldn't have been violated in
the first place, but the commission cannot take away the right to appeal. In a second
hearing, there would be greater analysis of the size of the wetland; he said the VHB
report was mostly about replication and removing the wetland from near road salt, but
the size was taken for granted at 7,800 square feet. Therefore, the focus of the hearing
was not the size, which a new hearing would be about.
Mr. Boyden asked ifVHB had a complete plan for replication. Mr. Lewis said there
was, and it was based on 7,800 square feet. Paul Knapick from VHB used plants and
soils to determine the wetland size.
Ms. Ready asked if an appeal of a second denial would throw this issue to another court
that might be more favorable to the applicant. Mr. Mangiaratti said it would not, and
the only place it would go would be to Bristol County Superior Court, which will decide
if the record, which will be substantial, supports the board's decision.
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Ms. Matthew said the commission has to accept the size of wetland areas based on the
presentation of the applicant. Mr. Mangiaratti said what the commission does on other
cases will not be admissible. He said when an applicant comes in with a wetland of x
size, the commission can challenge that following a site walk or using other information
if it believes the size as presented is wrong. He said under the local wetland by-law, the
commission has the right to make an applicant pay for an expert for any project.
Mr. Smith said he had received a visit from Mr. Clemmey, who said he is "going after"
everyone on the board, and would "get something" on all the members. Mr. Clemmey
told Mr. Smith he didn't want him on his back. Mr. Mangiaratti said those are threats
and should be a police matter. Mr. Boyden said Mr. Clemmey had also visited his
building.
Ms. Ready said she would like the applicant to agree to all the conditions before the
commission makes a decision about whether to rehear it.
Mr. Lewis said if the commission goes the route of getting an independent expert to
make a determination, and the applicant agrees to whatever that answer is, as well as
getting all the historic data from the other engineering companies, it could resolve the
situation. Consensus of the commission was to add legal costs to the request.
The commission will not decide to hear the Request for Determination of Applicability
again until after it reviews the data from 1993 to 2002 to determine if there are
sufficient field observations in the record to make a decision, now that the site has been
altered. The information should come directly from the engineering company to the
commission, and Mr. Lewis would like to be able to speak with the engineering
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companies and ask questions. The commission wants its own expert paid for by the
r applicant and reimbursement oflegal fees for court action. Mr. Mangiaratti said if the
applicant doesn't agree to this, the court action will continue. He will explore this
option and report back to the board.
Mr. Mangiaratti asked whom the board would like to use as an expert; Ms. Matthew
suggested someone from the state. Mr. Lewis suggested someone from Horsely and
Whitten.
Motion: To come out of executive session and go back into the regular meeting
(Smith-Ready) All in favor. PASSES
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