Neighbor Pushes to Question Wetlands Delineation

During an extensive discussion on October 15, the Marion Conservation Commission dissected the question of the wetland line at a proposed project off Converse Road.

Applicant Mark Ross’ engineer, Nick Dufresne of Farland Corp, as well as the wetland consultant hired to delineate the wetlands, defended the wetland line as Ross’ neighbor spoke at length, requesting more information about the contested wetland line.

The wetland scientist Rodrigue Sinnette stated that the wetland line was moved upland about 5-6 feet during the site visit with the commission. Commission Vice Chairman Shaun Walsh asked if it was moved because of the soils, to which Sinnette replied it was moved due to the dominance of wetland plants, which is the first criteria for defining the wetland line. He said he had first delineated the line in February 2018, and had used phragmites to define the limit of wetlands. Most recently, Sinnette had seen other wetland species in the mowed area and, therefore, despite there being hydric soils further inland, had placed the line where the dominance of wetland plants fell below 50 percent.

Chairman Jeff Doubrava raised his concern from last meeting regarding the project not conforming with the zoning bylaw, which requires a new construction project to make every effort to stay out of the Velocity zone. Doubrava asked the applicant if they had reconciled this issue at all and reminded the commission that he had spoken to town counsel and was told that the commission had “the ability and the obligation that permits [are not] issued that violate a town bylaw.”

Despite not having a building permit, Dufresne stated that he had spoken with the building commissioner, received setback relief, and that what Doubrava was questioning did not fall within the purview of the conservation commission.

Member Joel Hartley seemed ambivalent, saying that it was not the commission’s responsibility to enforce bylaws of other departments.

Walsh agreed, saying, “We are tasked with enforcing the Wetlands Protection Act if it comes before us. … In my opinion, it is not our job to enforce other municipal departments bylaws.”

Member Kristen Saint Don-Campbell suggested the commission send a memo to the building department that they had become aware of this issue.

The discussion moved to the mowing of the wetlands where the wetland line defines an area that includes a portion of the lawn the applicant claims has been mowed continuously for decades, beginning prior to the Wetland Protection Act (WPA), which was established in 1972.

Brandon Faneuf, owner of Ecosystem Solutions, informed the commission, “The use is pre-existing to the Wetland Protection Act. The owner would like to continue to mow the area, even though it is wetland: his use predates the WPA and, therefore, does not apply.”

Doubrava appeared incredulous, replying, “That’s a big loophole to drive through,” giving the example of other activities that had historically occurred that are not currently allowed, such as dumping sewage directly into the harbor.

Walsh proposed a compromise position in which the applicant install a permanent barrier along the wetland line, such as boulders or a split rail fence, which he surmised would result in everything to the east of the barrier revegetating with wetland species.

Hartley suggested the commission consider requiring the 15-foot buffer beyond the wetland line, which Doubrava anticipated would also revegetate with wetland species after three years of not being continuously mowed.

While Faneuf appeared immoveable on behalf of his client’s intentions to mow the wetland area, Dufresne reminded the commission that the limit of work of the project before them did not approach the wetland line; therefore, the issue of mowing had no bearing on their ruling. Hartley suggested a permanent fence with a 5-foot buffer, saying he did not like the idea of a fence on the wetland line.

Doubrava persisted with his concerns, saying “Let’s be clear – [he] plans to cut in the wetland area to the stone wall. … [If] anyone came before us to mow wetlands, we’d say no!”

Walsh countered that the cutting is not part of the project, and that the commission can impose a special condition of the permanent barrier, which the applicant could appeal.

Although Dufresne seemed amenable to this condition, landowner Mark Ross addressed the commission directly and affirmed his position, saying he’s been mowing the lawn since 1976.

“[If we’d] have to give that up, we’d prefer not to, [and] consider what our options would be,” said Ross. “[We’d] ask you to approve it so we don’t have to go to that extent.”

At this time, neighbor to the project, Caroline Elkins of 195a Converse Road, spoke before the commission. She contended that the commission did not know exactly where the wetland line was and that the area had not been mowed continuously as the applicant had stated.

“[What I am] wondering is this, to the degree of what is at stake,” said Elkins, “[should we] hire someone independent to measure the wetland line? We’d all benefit from that. That would give us a baseline. … What’s at stake is this incredible wetland.”

There was reluctance on the part of the commission to hire an outside wetland scientist, which would be an added burden to the applicant.

Elkins questioned the urgency of the decision, suggesting, “With all due respect, there’s really no rush. … [Getting] soil samples would be good – someone independent, not with a vested interest.” She continued, “A small price to pay to have the knowledge of the precise line. … Wouldn’t it be great to have all the info on the table?”

Doubrava interjected that, in the five years he has been on the commission, “I have never had anyone saying, ‘I’m going to mow the wetlands because I’ve been doing it for years.’”

Walsh spoke in favor of the wetland line, and against asking the applicant to hire another wetland scientist, citing the commission’s experience in accurately evaluating the veracity of a wetland delineation.

“Maybe I misheard,” said Elkins. “It wasn’t so much soils as plants were tested. [If it was] mowed for 50 years, plants that would typically be there may be gone. … [It’s] destroyed in its accuracy due to mowing.”

Dufresne reminded the commission that, at the site visit, they agreed where the wetland line was and confirmed that the distance from the wetland line to the limit of work is 45 feet.

Elkins pushed the commission to consider discussing both the wetland and zoning issues simultaneously with the zoning department. She continued to question the assertion that the area had been continuously mowed, which prompted Faneuf to tell the commission that the issue for his client is not the wetland line, but the potential for losing his lawn, adding, “My counsel is to not give up. Upon appeal, [Massachusetts Department of Environmental Protection] would say it’s a preexisting use and it would hold. … Preexisting use is the issue – that’s where the brick wall is.”

The commission closed the public hearing and will seek further advice from town counsel regarding the zoning issue. They must issue an Order of Conditions or deny the project within 21 days.

In other business, the commission issued an Order of Conditions for a project at 43 Dexter Road to demolish a cottage and construct a new single-family house. The commission required the applicants to install a pervious stone driveway and drywells for roof run-off.

The Tremont Christian Camp submitted a Request for Determination of Applicability to repair an existing seawall located at 45 Oakdale Avenue. The commission had visited the site, and believed the project required the use of machinery and other heavy equipment. They, therefore, issued a positive determination, stating that the work described is within an area subject to the Wetland Protection Act and required the filing of a Notice of Intent.

Annmarie Levins and Linda Severin were granted a three-year extension to their Order of Conditions for the eradication of phragmites at 53 Dexter Road.

The next meeting of the Marion Conservation Commission is scheduled for Wednesday, October 24 at 7:00 pm in the Marion Town House.

Marion Conservation Commission

By Sarah French Storer

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