Tree Cutting Approved in Right of Way

            Scott Rassoulian was voted an Order of Conditions for tree and brush cutting he applied to conduct for the sake of access to a right of way shared with other residents abutting his 195A Converse Road home.

            The decision, made by the Marion Conservation Commission during a March 22 public hearing, followed painstaking explanations to abutters regarding the limits of the ConCom’s purview in a case that heard abutters call property rights into question.

            Commissioner Shaun Walsh recommended an Order of Conditions stipulating that only the trees and vegetation specifically designated for removal on the plan of record may be cut. Those include: a 12-inch-diameter twin tree, an 8-inch-diameter tree, 6- and 12-inch-diameter Arborvitaes and a 4-foot bush to be cut in a west-to-east direction.

            The second condition in Walsh’s motion stipulated that only brush within the 10-foot-wide right of way that impedes the applicant’s ability to access the shore, including carrying a canoe, kayak or similarly small vessel may be cut. A third condition stated that no vegetation seaward of/or within 10 feet landward of the delineated wetland line as shown on the plan of record may be cut. “The last 10 feet, no cutting,” said Walsh. A fourth condition stated that the ground surface shall remain vegetated, meaning no digging, grinding, grubbing of roots or disturbance of soil would be allowed.

            The fifth condition stated that trees shall be cut flush to the ground, and cutting of brush and vegetation shall be no closer than 1 inch from the ground surface. Placement of loam, sand, soil or seed is not permitted by the Order of Conditions, and no heavy machinery will be allowed within 30 feet of the bordering, vegetated wetland line.

            Special conditions also include storm-damage prevention and flood control because the project is on land subject to coastal-storm flowage and buffer zones.

            Rassoulian’s Notice of Intent application sought the removal of the trees, shrubs and brush, explaining through representative Stevie Carvalho of New Bedford-based Farland Corp. that the project site is located on a 10-foot-wide right-of-way on the northeast corner of the property. Carvalho said the cutting would make Rassoulian’s right of way accessible and that there would be no excavation involved.

            Having visited the site, Conservation Commission Chairman Jeff Doubrava suggested that some of the cutting planned falls outside the scope of what is required to make the right of way accessible. He asked if the “bookend” trees really need to come down.

            Carvalho displayed a part of the botanist’s report that said two of the trees at that location appear dead and though he had not been to the site, questioned if it is a safety issue. Doubrava asked if there is a more-minimal way to achieve the opening of the right of way and referenced interested abutters.

            Walsh suggested the vetting process steer away from a negotiations process with abutters and focus on whether the application is permittable. He referenced a case that determined that the state Department of Environmental Protection is not the arbiter of property disputes, nor does MassDEP grant property rights. MassDEP, he said, only issues a permit that determines whether or not work that is proposed is essentially compliant with the Wetlands Protection Act. A “landowner,” he said, “encompasses anybody with a deeded right of way, an easement or a property right that’s considered to be less than a “fee interest.”

            Walsh stated that Carvalho’s inclusion of copies of deeds prove that the applicant has a deeded right to use the 10-foot right of way in common with others. “But what’s important for everybody to know is that doesn’t give those other people who have a right of access the right to veto what somebody else is proposing to do. That would defeat the right of way,” explained Walsh, an attorney. “If folks think that they have a right to do something or to prevent others from doing something, they have to go to court for that. That doesn’t have any bearing on the Conservation Commission’s evaluation of a project.”

            Commissioners Emil Assing and Matt Schultz supported the project but shared concerns, Assing regarding how tree stumps would be left and Schultz the treatment of the cleared areas.

            Conservation Agent Doug Guey-Lee acknowledged Walsh’s legal expertise on the matter and noted that the second condition of any Order of Conditions states that the order does not grant any property rights or any exclusive privileges, and it does not authorize any injury to private property or invasion of private rights.

            Representing abutter Greta Hardina, engineer Bill Madden said there is a utility pole not shown on the site plan, along with a guide wire wrapped in vines that lands in the right of way. Noting the 10-foot width, he asked what methodology would be used to remove the trees without impacting neighboring properties in the wetlands buffer zone.

            Madden said no methodology nor plan to grind stumps was included in the NOI and asserted that ground stumps will over time leave an impression not conducive to passage. Having visited the site, Madden also said the brush appears in two locations to include stones needing removal. Estimating 7 feet of width between the trees, he questioned whether the access needs to be 10-feet wide. “I think there’s an alternative to minimize the activity …,” he said.

            Madden suggested methodology be included in an Order of Conditions.

            Hardina asked, stating the property belongs as much to her as to the applicant, why she is not signing off before the proposal can be vetted.

            “The trees are not dead. There’s not three little Arborvitaes, there’s cedar trees, Junipers that have been there since I was a child,” said Hardina, stating that there is “a bunch of habitat” on the site. “They absolutely have plenty of room to pass without taking down these trees.”

            Hardina said she and Rassoulian spoke about water access when he moved in and that Rassoulian said he planned to cut down trees on his own property and offered to cut down any that Hardina wanted cut down as well. “So you have to understand why we’re questioning this, it’s more about his view,” said Hardina. “There’s plenty of room to pass by without cutting down any trees, and that’s been offered since day one. And I will still advocate for that.”

            Abutter William Ducas said his view on trees is, “if they have to be cut down and it’s permitted, great. I’m a big believer that a similar-type tree or a better tree be planted somewhere near there. I don’t know if this is the right committee to impose that responsibility, but that would be something I’d be very keen on if I have a right to speak to it.”

            Doubrava cautioned the public that the commission would not be speaking about the land or rights of way, only the wetlands impact.

            “The reason the property ownership is not relevant is because conservation commissions and MassDEP do not have the legal authority to make any ruling with respect to property ownership,” explained Walsh. “That’s the law, it’s abundantly clear.”

            Resident Margot Mims told the commission that foxes have been in and out of the marsh in the area and said she would hate to “have too much going on down there and mucking up the habitat.”

            Abutter Mark Ross agreed with Madden that the trees do not need removal for the sake of Rassoulian’s access to the water.

            In other business, S&S Ventures LLC’s restoration plan at 694C Mill Street has been accepted by the commission. A previously issued Enforcement Order will be left open. The same applicant’s Notice of Intent for reconstruction of a single-family house at that address was voted an Order of Conditions. Representative Dave Davignon of Schneider, Davignon & Leone Inc. presented changes in the site plan, and Brad Holmes of ECR Environmental Restoration also spoke to the application. Assing moved to include a continuing condition that the boulders on the site plan be maintained.

            The commission also voted to approve changes in Sippican Lands Trust’s site plan for the clearance of trees and stumps, removal of topsoil and placement of a gravel base with stone surface to construct a parking area inside a 33-acre parcel off Mill Street.

            Clayton Bosch was issued a full Certificate of Compliance for work performed at 2 Sassamon Trail.

            The next meeting of the Marion Conservation Commission is scheduled for Wednesday, April 12, at 7:00 pm at the Police Station on Route 6 and accessible via Zoom.

Marion Conservation Commission

By Mick Colageo

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