Commission Pursues CR Violation at The Cove

After a brief holiday hiatus, the Marion Conservation Commission tackled a full agenda on January 9, including the sticky issue of a conservation restriction (CR) violation at The Cove.

Vice Chairman Shaun Walsh summarized the prior meeting’s discussion during which the commission gave residents of The Cove time to think about the violation of the Conservation Restriction that the town holds on the open land portion of the property.

The restriction, granted in 1998 during the permit phase of the development, was part of the requirement to restrict a portion of the premises in order to develop the parcel under the Cluster Residential Housing section of the zoning bylaws. At issue is a fence, which The Cove placed along the boundary of the CR in September 2018, apparently to replace vegetation that had been destroyed in a storm.

Walsh stated that he believed the placement of the fence was in clear violation of the CR, and while he appeared to voice some understanding as to The Cove’s motivation for erecting the fence, he said, “[The] commission is charged with protecting the CR, and should not ignore it – [this would] set a dangerous precedent.”

He added that he would like to hear proposals from The Cove for rectifying the issue, noting that the commission had been told the fence was erected to shield houses from the lights of oncoming cars and unsightly automobiles stored on the adjacent property.

“Vegetation used to provide this function,” said Walsh. “[Is there an] alternative to the fence more in keeping with the purposes of the CR?”

Kathy Reed, a member of the Board at The Cove, questioned the commission on the exact violation.

“[T]he Open Land shall be retained predominantly in its natural, scenic, open space condition, for conservation of wildlife habitat and recreational purposes, and for the protection of natural habitat and environmental systems,” Walsh replied, citing the language in the CR. He went on to quote the CR at length, notably in the prohibited acts section: “The construction or placement of … temporary or permanent structure on, above, or under the Premises.”

Reed responded that it was a tough situation, having lost “sixty-percent of the vegetation” during a storm, and that headlights and unregistered cars had been an issue.

Commission member Cynthia Callow suggested The Cove replant trees and take the fence down, while Walsh clarified that there was no way to leave the fence in place and the commission was looking for The Cove to pursue a natural way to achieve the same goal.

Reed suggested that this was a subjective opinion of the commission and that The Cove had taken into consideration the natural scenic beauty of the site, keeping the fence the same size and structure as other fences on the property. Reed also observed that the fence was very expensive, to which Walsh replied, “I hate to sound unsympathetic, but the cost of [abiding by] the CR is not the issue.”

Chairman Jeff Doubrava informed Reed that the CR is attached to everyone’s deed within The Cove. Walsh suggested that Reed may consider speaking with The Cove’s legal counsel as they develop a proposal for the commission; however, he said, “In my opinion, keeping that fence in that location is not an option.”

Doubrava added that Reed might also look into the exact location of the fence, and determine if by moving it slightly, it would be off the CR. Reed said she would consult with other members of the Board and return to the commission in the coming month.

Also during the meeting, David Davignon, of N. Douglas Schneider & Associates presented to the commission three Notices of intent, all of which were continued two weeks, pending more information from the U.S. Army Corps of Engineers.

The first NOI was for the construction of a residential pier facility into the waterway of Wings Cove, on behalf of E. Byron Hensley Jr. located at 95 Holly Road. A boardwalk had been approved by a prior owner, and Davignon referred to this project as a re-permitting of a prior project. This four-foot wide elevated board walk would be shifted to the north of where it had been originally proposed, to access deeper water. It will begin at an existing deck off the house, slope down to the water, crossing 265 feet of bordering vegetated wetland and saltmarsh. It will connect with a 101-foot pier, 20-foot gangway, and float. Davignon noted that he was unclear where the transition from freshwater wetland to saltmarsh occurred because of the presence of thick phragmites growth. Doubrava remarked that while on the commission’s site visit, they noticed that the phragmites had been clear-cut and branches trimmed, information that clearly surprised Davignon. The applicant has applied to the Army Corps and also to the Massachusetts Department of Environmental Protection for a waterways license and received comments from the Massachusetts Division of Marine Fisheries with some suggestions. Davignon also stated that the harbormaster had verbally noted that he did not have a problem with the proposal. Portions of the boardwalk would be 5 feet above the marsh, which would provide the required public access across the marsh.

The second NOI Davignon presented was downstream from the prior applicant, located at 51 Holly Road, and owned by Paul and Christine Driscoll. This proposed boardwalk would be 145 feet long following a historic path to the water. The boardwalk will be 3 feet and then widen to 4 feet across the water to a gangway and float. The application includes cutting phragmites. Driscoll commented to the board that he had inadvertently cut the invasive vegetation when he first purchased the property prior to learning that he needed a permit. The applicant will provide stairs on either side of the pier to provide public access over the pier to cross the marsh.

Lastly, the Weweantic Realty Trust filed a NOI application to repair an existing pier at 312 Delano Road. The pier structure is supported with existing boulders and corroded steel pilings. Davignon proposed driving two sets of piles on the outside of the pier and to remove the steel pilings. He also proposed upgrading the planking on the deck of the pier in the same footprint of the current pier, and proposed no change to the ramp or float. No public access is required because this is an old pier and the work is considered “minor project modification”. The applicant did request a widening of the access to the pier to accommodate the removal of the float onto the lawn area in the winter.

In other business, the commission extended the permit at 122 Register Road for three years to finalize any work not completed at the site and they issued a Certificate of Compliance for 41 Dexter Road.

The next meeting of the Marion Conservation Commission is scheduled for January 23 at 7:00 pm in the Marion Town House.

Marion Conservation Commission

By Sarah French Storer

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