It has taken about nine years to get there, but a conservation restriction is finally nearing execution for property at 185 Wareham Road known as “the Habitat lot” the town purchased with the help of Community Preservation Act (CPA) money in 2009.

Marion Open Space Acquisition Commission (MOSAC) Chairman John Rockwell approached the Conservation Commission on July 11 requesting members’ signatures endorsing the conservation restriction (CR), a requirement when purchasing conservation land with CPA funding.

Another portion of that land was used for a residence built by Habitat for Humanity and completed in 2016.

Rockwell said it took the Town time to work out aspects in preparation for the CR, like utility easements for water and sewer, and just finding an entity to hold the CR was a chore, as some non-profits charge fees to hold a CR, which Rockwell said would be an “extra burden” for the Town.

The Sippican Lands Trust (SLT) has agreed to hold the CR at no cost, Rockwell reported, and at this point MOSAC, the SLT, and the Massachusetts Division of Conservation Services (DCS) will negotiate the terms of the CR.

Rockwell brought up a baseline survey report that documents the topography and features of the 50+-acre property, which will be filed with the state as part of the CR process.

“What attracted us to [this property] was the fact that it connected the far eastern end of our Washburn Park conservation land with Route 6,” Rockwell said. Now a trail can be established to connect Route 6 with Washburn Park.

The commission supported the CR and planned to add their signatures the following day before a notary public.

“It’s a great adoption of open space because it … connects Washburn Park with a large piece of conservation land here,” said Conservation Commission member Shaun Walsh.

The Board of Selectmen will also need to sign the CR before moving forward.

Also during the meeting, the commission continued the public hearing for the Notice of Intent filed by Henry DeJesus for the restoration of an area at 78 Wareham Road that was cleared of vegetation inside the buffer zone of a salt marsh, riverfront, and coastal bank.

Wetlands consultant Brandon Faneuf explained the scope of the unauthorized clearing of vegetation on a portion of the 58-acre area, which is in the process of being subdivided, with one portion unrelated to the NOI slated for a possible solar array field.

The commission issued an Enforcement Order on March 28 for the unpermitted work being done, and Faneuf testified that none of the work took place in the actual vegetative wetlands, only the buffer zone, and that no fill or grading had taken place. Some trees and branches and brush were cleared that will now need to be replaced to replicate what was destroyed.

Faneuf listed the species of vegetation to be replanted: oak, white pine, holly, and understory plants like grape laurel and sweet pepper bush – “All native species,” Faneuf said.

“So I’ll listen to hear how angry you are and then I’ll try to go into the restoration protocol if you’re interested,” said Faneuf.

The affected area is not an endangered species habitat, Faneuf confirmed, and replanting will begin once the project is approved, but not starting any time after mid-October. Planting later in the season is a gamble, Faneuf said, given that one never knows how harsh the winter will be.

“If we do have a bad winter … what’s plan B?” asked commission member Cynthia Callow.

“Plan B is that — you know, the wallet,” said Faneuf. “We’ll buy more and replace it.”

The hearing was continued until the next meeting.

Also on the agenda, the commission continued the Notice of Intent hearing for Derek Maksy, the potential buyer of 7 Bournehurst Road. The commission was unable to access the area with the wetlands flags because of thick vegetation. Walsh described it as a “jungle,” and asked if Maksy could ask the sellers of the property if a crude path could be cut to allow the commission access for a site visit. Maksy’s plan is to demolish the existing house and rebuild it along with an in-ground pool, Title 5 septic system, circular driveway, a 12-foot wide cart path to access a “picnic area,” and to clear an area for a topographic study for access to a possible future pier.

Then, for technical reasons, the public hearing for the NOI for Denise and Thomas Beaudoin of 166 Allen’s Point Road was continued until the next meeting. The plan is to replace the front and rear entry porches, remove and replace the in-ground pool, and correct yard flooding with fill and grading.

The commission gave a Negative 3 determination for the Request for Determination of Applicability (no NOI required) for Laura Grauer, 23 Front Street, to repair the back patio stone walls, install new stone paver pathways and new field stone walks, and move the utilities from the street to the house.

Marie and David Crimmins, 10 Nokomis Road, received a Negative 1 determination (work area not subject to the Wetlands Protection Act) for their RDA to extend their rear deck another five feet.

The next meeting of the Marion Conservation Commission is scheduled for July 25 at 7:00 pm at the Marion Music Hall.

Marion Conservation Commission

By Jean Perry

For over three hours on July 12, members of the Marion Zoning Board of Appeals struggled to wrap their heads around the 324 Front Street appeal filed by abutter Peter Douglas as he sought to have the building inspector’s zoning enforcement denial overturned.

The meeting started out seeming expedient as the ZBA moved down the list of points to address as explained in a memorandum from Town Counsel Barbara Carboni – yes, Christian Loranger’s multi-family use of the property is lawfully non-conforming; and yes, the condominium development could be built under the bylaw which, at the time, allowed for reconstruction after demolition regardless of whether it was demolished via natural disaster, catastrophe, or by choice.

But when it came to interpreting the language of the bylaw pertaining to area and volume, and whether the razed house ever had a rear basement that would validate Loranger’s use of said basement as usable volume, the discussion was a broken record that kept spinning and skipping over the same scratches forming a bad loop that played on until nearly 11:00 pm.

Some residents, including the appellant himself, Douglas, left well before the meeting was even over as the tune grew tiresome.

One repeated verse of that tune was Section 230-6.1 of the bylaw, which says a reconstructed non-conforming house can only be rebuilt “to an extent only as great in volume or area as the original nonconforming structure unless a larger volume or area or different footprint is authorized by special permit.” The question stemming from Loranger’s argument emphasizing the “or” between “volume” and “area” and whether it means one must abide by both volume andarea or either one of them.

ZBA members were clearly frustrated as they pondered the meaning of “or,” until they decided to skip over it to address the other skip in the record – is the new structure within the same footprint as the original house?

            The board referred back to Carboni’s memo on occasion when talks were at their bleakest: “[The board should] use its best judgment and common sense of it,” was the refrain as ZBA member Kate Mahoney’s read the memo. “You are the fact finder. … Common sense and local precedent should guide interpretation.”

Eventually the board was unanimous, agreeing that the footprint was the same, more or less, give and take an external staircase or two.

“I can forego that,” said ZBA member Betsy Dunn.

The minutia was thick and convoluted as ZBA members with opposing viewpoints argued over “or” again, and whether Loranger simply had to keep with either the prior house’s area or volume, or both area and volume.

“It’s one or the other to me,” said ZBA member Michelle Smith via telephone remotely from Hawaii. “Up to the same area or up to the same volume as the original structure.”

But wait, what is volume and area, again? Mahoney was getting confused.

“Volume is cubic; area is footprint,” said ZBA member Tad Wollenhaupt.

The discussion took a dubious turn when the board began questioning which of the several – and very different – volume calculations by different surveyors to go by, fixating more on calculating volume than the actual task at hand: can Loranger stay within the prior structure’s area and go bigger in his volume, or must he stay within the prior house’s volume and area?

Here, at the two-hour point, the board referred again to Carboni’s memo and then reverted back to the discussion of which surveyor calculations to use.

“In my world, we take the medium – or the average,” said ZBA Chairman Marc LeBlanc.

Mahoney had a hard time believing Loranger’s surveyor, purveyor of three different sets of calculations for the original house, each of them larger in scale.

“There was a motive for them to perhaps … increase the numbers,” said Mahoney.

“That’s a strong statement,” LeBlanc said.

“That’s a very strong statement,” Loranger said from the audience, eliciting shushes from the board with the public comment period over.

As talk went on, the viewing public became increasingly visibly frustrated, and even Douglas was cautioned that he would be removed for expressing his own perplexity in a reflexive remark. The board was all on edge as well and paused for some comic relief to laugh amongst themselves about texts LeBlanc said his sister was sending him that moment. The public sat and waited.

Still engrossed with which calculations to believe, Wollenhaupt eventually remarked on how he doesn’t feel there is enough information to determine a bylaw-abiding volume, since the old building is now long gone.

The meeting dragged on, and even Loranger himself during a “weak moment,” as he put it ironically, pondered aloud if tearing down the building would be less painful than that meeting.

Then the board turned to Building Commissioner Scott Shippey and asked him the magic question: when you interpret the bylaw while issuing a permit, does “or” mean eitheror both?

            “It’s ‘or,’ said Shippey. “It’s either or. It says it plain as day. The word ‘or’ is clear.”

And then immediately the board went back to which calculations to use. Dunn advocated for the first set of calculations, which Douglas’ and Loranger’s surveyors both said were inaccurate, “Because that’s what it was built to,” said Dunn.

Then, again, it was back to “or,” courtesy of Mahoney this time, asking if the board accepts a literal interpretation of “or” or if they see it as meaning “both.”

The vote was 4-1, Dunn dissenting, but this vote and the prior votes that night were simply used as scaffolding to support a final vote to either uphold or overturn Shippey’s denial of Douglas’ zoning enforcement request, which would need a supermajority vote of 4-1 to overturn in Douglas’ favor.

“No matter what happens,” LeBlanc said, “if we don’t agree, it fails.”

The discussion went around again a couple more times until – suddenly –

another vote: does the project comply with the bylaw (same footprint, not greater in volume “or” area …)? Yes, 3-2, with Dunn and Mahoney opposed, which contradicted Mahoney’s prior vote deeming Loranger’s structure was within the original footprint, and her vote to accept “or” as meaning ‘either.’

Still with us?

A 3-2 vote to uphold Shippey’s decision ensued. Loranger left with a “thank you,” and Douglas was already home by then.

In a follow-up email to The Wanderer, Douglas wrote, “A number of uninvolved observers present at the ZBA meeting remarked on the apparently obvious bias of the [three] ZBA members who are real estate brokers or developers. I can’t comment on that other than to say that I am 100% certain that a judicial decision on appeal will result in a complete reversal of those [three] members’ votes.”

The next meeting of the Marion Zoning Board of Appeals is scheduled for July 26 at 7:30 pm at the Marion Town House.

Marion Zoning Board of Appeals

By Jean Perry