ConCom Clarifies Role in Non-Jurisdictional Bylaws

The Marion Conservation Commission gave itself extra time Wednesday night to meet with town counsel to discuss its obligations regarding bylaws and permits not under their direct jurisdiction.

Town Counsel Barbara Huggins Carboni met with the commission on October 24 to flesh out the regulations guiding the commission’s decisions when contemplating applications lacking permits from other town departments.

“The short answer is [the commission] doesn’t have a roving authority,” said Carboni. She cautioned the commission to be “mindful,” however, of the status of other town permits the applicant may be required to pursue.

Carboni stated that the commission is not making a “substantive” decision about whether a bylaw applies, but that a determination needs to be made by another department. She further clarified that the regulations state that a permit must be either applied for or obtained. However, she noted that upon receipt of an opinion from the department having jurisdiction over the permit in question, the commission must accept that department’s ruling.

Carboni suggested the regulations are in place because the commission has such a small window within which they must make their decisions. Often the information from other permitting entities may not be available within that timeframe, and, therefore, the commission must have the ability to deny without prejudice an application for lack of information. It is within the discretion of the commission, acting in good faith, if it feels a bylaw applies and that permit has not been applied for or obtained, to deny the project.

When asked who has the burden to inform applicants about the possible applicability of permits, Carboni suggested that applicants should, ideally, have good professional advice. Otherwise the regulations assume there is awareness on the part of the commission as to what other permits are required. Carboni concluded, “Some board has to decide first.”

Later in the meeting the commission met with Mark Ross, of 195c Converse Road, whose project was the impetus behind the meeting with Carboni. The commission discussed at length how to handle the question of Ross not having any other permits in hand concurrent with the Notice of Intent application, even after the public hearing was closed on October 10.

Ross agreed to waive the 21-day deadline for the commission’s decision, and will request re-opening the public hearing at the commission’s next meeting on November 14. This will allow the commission to hear new information from town departments regarding the other permits required for the project.

In regular business, the commission heard a Request for Determination of Applicability from David Davignon on behalf of the ZPT Energy Solutions solar farm at 178 Wareham Road.

Davignon provided revised plans that showed a possible Isolated Land Subject to Flooding wetland located outside the area of work on the property. Members of the commission had visited the site, and in reporting their findings, Vice Chairman Shaun Walsh exclaimed with enthusiasm, “[We noticed] two natural springs with water bubbling out of the ground!”

While Davignon acknowledged natural springs are rare in the area, he maintained that the wetland area was non-jurisdictional. The threshold for an isolated wetland to be protected by the Wetland Protection Act, a volume of a quarter-foot of water would need to be established. The commission agreed this was very unlikely.

Davignon had not done topographic measurements in the wetland for the volume calculations, but reminded the commission no work is contemplated near the wetland and it would have no buffer zone in any case. The commission issued a Negative determination.

The commission issued a Negative determination for Camilla Mathew, Trustee at 20 Cottage Lane, to construct a new 34.5-foot by 25-foot three-bay garage and improve an existing driveway.

Jonathan Tracy received a Negative determination for the removal of three trees within a buffer zone, with the condition the stumps are left in place.

The Town of Marion received a Negative determination for the mechanical clearing of a 15-foot wide by 60-foot long recreational shellfishing access path on a paper street known as Holmes Road.

Stevie Carvalho of Farland Corp, representing Diana Cress, received a Negative determination for the razing and rebuilding of a single-family dwelling at 114 Point Road.

The next meeting of the Marion Conservation Commission is scheduled for November 14 at 7:00 pm in the Marion Town House.

Marion Conservation Commission

By Sarah French Storer

Leave A Comment...