HomeMy WebLinkAboutmin of conservation com 08/11/2003 exec
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EXECUTIVE SESSION MINUTES
Conservation Commission Meeting
August 11, 2003
Present: Paul Boyde~ Chair; Carole Matthew, Jack Smith, Bob Bean
Richard Lewis, Conservation and Environmental Planner
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11. Exeeutive Session with Tow. Coullsel
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Susan Jacobs, Volterra, Goldberg, Mangiaratti & Jacobs, updated the commission on the
Carriagan case. She said the complaint alleges the commission acted incorrectly by not
allowing a third house to be built, and the conditions it placed on the second house are
burdensom. Ms. Jacobs said the court will give the commission's decision a great deal of
weight. The Carrigans have requested the court determine the commission applied the
law incorrectly when deciding their application. Ms. Jacobs said the documents the
commission considered have been submitted to the court, and the Carrigans have
requested to add additional information to the record regarding the Village at Willow
Crossing. They claim that is a similar project, which was allowed while theirs was not.
Mr. Lewis said it is unclear in the minutes what that reference was to, and Ms. Jacobs
agreed. Ms. Jacobs said the Carrigans have requested to attach a copy of CMR XX to the
fIle, which Ms. Jacobs has opposed.
Ms. Jacobs said she has been approached about settling this case.
~ Mr. Boyden said the commission was in error when it said there is an intermittent stream
on that site during the public hearing. He said the stream has never stopped flowing
under normal conditions; the data submitted with the application was from this area's
two-year drought period.
Robert Mangiaratti, Town Counse~ asked the definition of an intermittent stream. Mr.
Lewis said new guidelines have been adopted, and the USGS has a computer program to
calculate the size of the watershed and how much water flows into and out of it.
Mr. Lewis said the offer to settle seemed to be that if the commission gave them the lot,
they would do a replication area. He said that would have been required anyway. He
said the order required a fence at 25 feet, and the house proposed was 30 feet away from
the wetland, so he said he didn't think that was an onerous condition.
Consensus of the commission was not to agree to a settlement.
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South Walnut Street/Clemmey
Mr. Mangiaratti said Mr. Clemmey's attorney requested he talk to the commission about
a new Request for Determination of Applicability with respect to the site. The proposal
was to look at the wetland soils in the altered area, which was the subject of the original
suit, as well as the soils analysis to consider whether it was an isolated wetland subject to
the commission's jurisdiction. He said Mr. Clemmey was willing to pay for an
independent consultant, chosen by the to~ evaluate Dr. Carr's findings. He said when
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that offer was originally made, the commission had asked Mr. Clemmey to submit the
r" record of work for soil data connected with adjacent sites; the response was that there
was no additional data to add to the record.
Mr. Mangiaratti said from the outset, the commission didn't consider this an especially
valuable wetland, so permission for some alteration was granted. He said he didn't think
the commission could have waived its own by-law to allow the filling; however, the
wetland was subsequently filled.
He said the commission made its decision not to allow filling in good faith and the
decision was blatantly violated. He said there has appears to have been additional
activity on this site. Mr. Bean said he saw that the site had been rolled. Mr. Mangiaratti
said Attorney Nyland told him there has been grading work, but no fill in or around the
isolated wetland. Mr. Lewis showed the board a plan indicating the location of the
wetland and the buffer zone. He said when the wetland was originally filled at the end of
2002, a fair amount of material was moved. He said within the last few days, an abutter
called to say it appeared the site was about to be paved. Mr. Lewis said he viewed the
site from the Shaw's property, and it appeared the South Walnut Street site had been
prepared for paving. Mr. Bean said he was invited onto the site on Saturday, August 9,
2003 by Mr. Clemmey, who showed him where the hole was, and that the telephone
poles were still standing. Mr. Bean said the whole area appeared to have been rolled.
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Mr. Mangiaratti said the injunction enjoins Mr. Clemmey from excavating, grading or
altering a certain area, the wetland, and the buffer area, consisting of all land within 100
feet from the edge of the wetland.
Mr. Mangiaratti said he received a letter from Attorney Nyland saying that prior to
conducting the grading work, RIM Engineering did a survey to ensure the work would
conform to the plans. After Mr. Lewis's concerns following the work, RIM did a second
survey to ensure conformity. Attorney Nyland said Mr. Clemmey has invited the
commission to visit the site, and reiterated his offer to pay for a wetland scientist to
evaluate the soils. Mr. Mangiaratti said he spoke with Mr. Nyland and told him the
commission might be willing to visit the site, but said he would not recommend the
commission consider reviewing the soils.
Mr. Lewis said there is a small bowl of wetland left, which appears to have been rolled.
He said Dan Clemmey came to his office the morning of Friday, August 8, 2003, and Mr.
Lewis told him there appears to have been a violation ofthe court order. Mr. Clemmey,
Jr. asked Mr. Lewis to visit the site, which he said he would not do until he got a
comparison plan of the site. Mr. Lewis said following that discussion, Karl Clemmey
called and asked him to visit the site. Mr. Lewis said he told Mr. Clemmey, Sr. he would
not visit the site until that plan was prepared.
Mr. Boyden asked how much wetland area was shown on the original plan; Mr. Lewis
said it was about 11,000 square feet, but the 2001 plan shows 7,800 square feet of
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wetland area. He said the town engineer had questioned the ability of the proposed
.,,-. replication area to function.
Mr. Mangiaratti said the board could discuss working with the applicant or could direct
him to continue the litigation. He said if the applicant had chosen to appeal the
commission's decision not to allow the wetland alteration, he may have had an arguable
case about whether the wetland was jurisdictional However, Mr. Clemmey didn't
exercise his right to appeal to superior court, so that right has been lost.
Mr. Lewis said he had spoken with Peter Fletcher, retired from Soil Conservation
Service, who said he would be willing to look at this situation. He said Mr. Fletcher's
concern was that when the area was stripped, if the topsoil and subsoil layers were
removed, it would be very difficult to make a determination about where the edge of the
wetland was.
Mr. Mangiaratti said if the commission is inclined to continue the litigation, he believes
the case is a good one.
Mr. Lewis said with the grading, the drainage patterns on the site have been shifted. Mr.
Boyden asked if the elevations on the original plans match the elevations on the 2001
plans.
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Mr. Bean asked how a settlement would work; Mr. Mangiaratti said that would require a
court order for the wetland to be restored to the way it was before the law was violated.
Mr. Mangiaratti suggested addressing Mr. Nyland's request to explore settlement in the
form of an Request for Determination of Applicability by using a soils analysis.
Consensus of the commission was to direct Mr. Mangiaratti to inform Mr. Nyland it does
not want to pursue the option of an RDA on the basis of soils. Mr. Mangiaratti said he
recommended continuing with the litigation and having the court order enforced. He said
in order to do that, they would have to visit the site. Mr. Lewis said getting the
comparison plan would be the first step, which Mr. Clemmey, Jr. told him would be
ready Wednesday or Thursday (August 13 or 14,2003). Mr. Mangiaratti said he would
be willing to meet Mr. Nyland and his team on site with the comparison plan and with
new elevations being taken. Consensus of the commission was to ask Mr. Mangiaratti to
pursue that action. Mr. Mangiaratti said the next step would be to get a court order for
the comparison plan if it is not submitted.
Mr. Bean said it appeared the telephone poles abutting the Shaw's site had not been
disturbed. Mr. Mangiaratti said it appears from the plan that those poles are on the
Shaw's side of the property line.
Mr. Boyden asked why the 11,000 square foot plan isn't being used; Mr. Lewis explained
the 7,800 square foot plan is the latest one approved by the commission, and the one in
effect when the injunction was grated.
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Land Acquisition
r- Mr. Lewis presented a plan for the acquisition ofland owned by Doug King on the Canoe
River. The site is 49 acres and the price is $250,000; Mr. Lewis said the funds are
available, and he would like to apply for a self-help grant for 60% reimbursement. The
NRT has done an apprais~ which is almost complete, and Mr. Lewis has spoken with
Peter Tetro about a second appraisal. He said the Board of Selectmen will meet August
20 about the issue. Mr. Lewis said there may be one buildable lot on this land.
Motion: To direct Mr. Lewis to pursue acquiring the Doug King property
(Bean-Smith) All in favor. PASSES
Mr. Bean reminded the commission his appointment would be up on January 1, 2004. He
said he intends to reapply, but cannot be certain because of his military commitment.
Motion: To come out of executive session and return to the regular meeting
(Bean-Smith) All in favor. PASSES
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