The Marion Conservation Commission is still split on whether or not to require Eagle Scout candidate Jackson St. Don to file a Notice of Intent for the ‘gaga’ ball pit he wants to install at Silvershell Beach as part of his Eagle Scout project.

On May 23, commission member Shaun Walsh maintained that because the project does not “remove, fill, dredge, or alter the resource area,” as stated in the Wetlands Protection Act, then a NOI is not necessary.

Commission member Jeffrey Doubrava disagrees.

“I just think it’s a slippery slope,” said Doubrava, recalling a recent project of placing benches at Sprague’s Cove for which the commission required a NOI.

But with that project, the commission did not know the placement of the benches and if they would be anchored, said Walsh. With St. Don’s gaga ball pit, Walsh said they knew where it would be placed this time.

“I think that it isa slippery slope. If you start requiring somebody like this to have to file an RDA, then where do you draw the line?” said Walsh. “Because by that logic, every time they put the lifeguard stand on the beach, you’re going to make the Town get an RDA for that?”

There is the fact that if a hurricane came though it could carry components of the gaga ball pit onto other properties causing damage, but that is not a performance standard of the Act, said Walsh.

“I think we have to go back to the Act,” said Chairman Cynthia Callow. Recreation Director Jody Dickerson wrote in a letter that he would see to it that the gaga ball pit was taken down and removed should a storm event approach, which is all Callow feels she needs in order to be reassured.

Still, having not been listed specifically on the agenda, the commission ended the discussion until the next meeting.

In other matters, Callow said that morning at 6:30 am she got a call from acting DPW Superintendent Jonathan Henry regarding a water main break on County Road with municipal water gushing into the Sippican River. She said she gave Henry approval to install some erosion control and get to work on repairing the pipe.

“It’s probably not a problem,” said commission member Joel Hartley. “If it was chlorinated water, I think it would be a problem.”

Also during the meeting, the commission issued a Certificate of Compliance to Christopher Kmiec for work done at 14 Aucoot Avenue.

Robert Braman of Sandwich received a Certificate of Compliance for completed revetment work done at 538 Point Road.

Cynthia and John Paliotta received an Order of Conditions for their NOI to construct a lawn and implement stormwater controls relative to the up-gradient construction of a single-family house at 119 Converse Road. Included in the plan is a grassy swale system that will capture stormwater runoff and lead it to a detention pond downhill from the construction.

Barbara DaCosta was granted a Certificate of Compliance for a driveway extension and subsequent wetlands replication at 2 Washburn Park Road.

The commission refrained from granting Clean Energy Collective’s request for a release from an Enforcement Order relative to the solar farm project at 99 Perry’s Lane. The commission wants the solar developer to address two remaining issues: a dead evergreen tree and a dangling tree branch close to live wires.

“When they do it, if they notify us that they’ve done it, we’ll put it on the next following site plan visit … and then we can entertain … a Certificate of Compliance,” said Walsh.

Leslie and Paul Kuo were given a Certificate of Compliance for completion of the work related to a new house construction and associated work at 139 Converse Road.

Virginia and Robert Beams were given a Certificate of Compliance for pier improvements at 35 Holly Road.

The commission granted a Municipal Certificate for an amended conservation restriction at 618 Delano Road for land donated to and now held by the Trustees of Reservation.

The next meeting of the Marion Conservation Commission is scheduled for June 13at 7:00 pm at the Marion Town House.

Marion Conservation Commission

By Jean Perry

Contention follows local condominium developer Christian Loranger project after project in Marion, and the contention continues at 324 Front Street, a four-unit condo development that abutter Peter Douglas is fighting to see reduced in size.

Douglas, during the May 24 Marion Zoning Board of Appeals public hearing of his appeal of Loranger’s building permit, right off the bat called for the recusal of three ZBA members – Michelle Ouellette Smith, Chairman Marc LeBlanc, and Bob Alves – citing them as three of the defendants of Douglas’ separate lawsuit last year, a conflict of interest he said, while also saying Smith and LeBlanc, as real estate agents, could potentially benefit from a sale of one of Loranger’s four units.

Furthermore, Douglas referred to some Facebook posts he alleged LeBlanc had made and later deleted, “…Registering opposition to any effort to interfere with this project,” Douglas said.

“We’d (Douglas and his attorney) like to make that point clear that we don’t think you’re qualified to sit in judgment of this case,” Douglas said while waiting for his attorney who was stuck in traffic.

Town Counsel Barbara Carboni advised Douglas that he is free to claim that some members should recuse themselves, but until that request is in writing, she said, “Consider your rights reserved … but it’s off the table for now.”

The over one hour-long meeting that included Douglas, his attorney Mark Bobrowski and hired engineer Doug Schneider, Loranger and his attorney John Burke, the board, and other residents finally distilled down to three main points for the board: interpretation of the bylaw’s definition of a basement, whether there was a rear basement space as Loranger claimed or not as Douglas et al. claim, and whether the project Building Commissioner Scott Shippey permitted “as-of-right” complies with the bylaw.

Loranger’s project violates numerous bylaws, Douglas asserts, which prompted him to hire his own engineer Doug Schneider to verify his assertion. Douglas also solicited the support of various past neighbors and owners of 324 Front Street to testify that there was never a basement to the rear of the house, an area Loranger figured into the original footprint on which he rebuilt the razed structure. And throughout the meeting, confusion permeated the discussion as both sides cited two different versions of the relevant bylaws – the ones in use when Loranger applied for the permit, and the ones the Town amended after the permit was issued pertaining to “catastrophic” demolition, volume and square-footage allowed, and the definition of a “basement.” There was also the matter as to whether the ZBA could rely on the information supplied by Loranger’s unlicensed surveyor.

“Our bylaws need work,” said Shippey. “’Volume’ is not even in the definitions. It’s an ongoing process … to repair the bylaw and make it correct.” The ‘Catastrophe or Demolition’ section of the bylaw under ‘Non-conforming uses and structures’ has been amended to specify that rebuilding on a non-conforming structure is allowed after demolition “caused by a catastrophic event,” but that was not specified in the bylaw when Loranger applied for the building permit.

And last year, the ZBA had already determined that the non-conforming house was grandfathered under the bylaw, so Douglas’s assertion that it is not is moot, Shippey said.

Since new information was presented to Shippey earlier this month, which included affidavits Douglas submitted, Shippey said that although he had all the information he needed from Loranger to issue the permit, “With this being a contentious issue,” Shippey said, he felt it best to present it to the board “to make a perfect judgment.”

According to Douglas, the new project has an increase of over 40% in volume from the original house, a violation of the bylaw. Furthermore, the exterior stairways and landings should count as being outside the original footprint, Douglas insisted with Schneider’s support, but Shippey disagreed.

ZBA member Kate Mahoney wondered if the board should hire its own peer-review engineer, a suggestion town counsel said could be explored and addressed at the next meeting, although peer review is usually common for bigger projects.

Douglas’s attorney Bobrowski said what jumped out at him was because the footprint was increased, in his opinion, there should be no building permit, and he cited case law he said was the leading case law on size and non-conformance. And as for catastrophe and demolition, Bobrowski should know that the intent of that bylaw was that structures could be rebuilt within the same footprint after demolitions after catastrophes, not voluntary demolitions– after all, he helped write it.

But Shippey added, “At the time [the building permit] was issued, you could do it voluntarily. It was changed since the project to ‘only’ catastrophic.”

On behalf of Loranger, Attorney Burke echoed Shippey, saying it is clear under the old version of the bylaw, “Demolition was allowed even if there wasn’t a fire or catastrophe.”

In the same sentence of the bylaw, Burke read the section that allows for reconstruction of a non-conforming structure “… [On] the footprint of the nonconforming structure and rebuilt to an extent only as great in volume or area as the original nonconforming structure….” Burke emphasized the “or” between “volume” and “area,” absent the word “and.”

Furthermore, the new building’s foundation is three and a half feet in length shorter than the prior’s, “But it is exactly placed on the foundation of the old building,” Burke said.

“There was no intent to do anything other than build an as-of-right building,” said Loranger, and the architect built the design based upon that and the calculations provided by the “expert” that performed the surveying, John Romanelli, he said.

“What makes someone an expert?” Mahoney asked. “Does he have to be licensed?”

Romanelli, although he has been performing land surveying for over 30 years, according to Loranger, is not a licensed surveyor in the State of Massachusetts. And although the bylaw does not specify that a licensed surveyor must do the work, Schneider questioned Romanelli’s integrity, while the board questioned Romanelli’s reliability, especially since Loranger asked Romanelli to review the original calculations, which led to some accuracy adjustments.

As for the rear basement, Loranger submitted an affidavit claiming he discovered a rear basement, which he accessed via a crawl space where utilities and sewer pipes came through to the front of the house.

The board grappled with the bylaw’s lack of a definition of a basement, except for a reference to the height of the ceiling – a headroom of 6.8 inches or greater, and “Partly underground but at least half above ground,” said Shippey.

Burke asked the board to uphold Shippey’s building permit.

Prior owner of 324 Front Street of 22 years, Ann Cowell, said there was never a rear basement, as Loranger claims.

“…There was no cellar there to the best of my knowledge,” said Cowell. “There maybe was a crawl space, but no cellar … to the back of the building.”

Burke countered, saying there is evidence of pipes in the space and the presence of a sunken floor above.

“You would not have a sunken floor … if that back section was built on a pad,” said Burke.

A neighbor who lived at 300 Front Street said she was a childhood best friend with someone who lived at 324 Front Street, and there was no basement in the back.

When the discussion again turned to Romanelli and the lack of a license, LeBlanc expressed his discomfort over discrediting someone who was not present to defend himself.

“I order to call yourself a land surveyor,” said Schneider, “You must be registered by the Commonwealth of Massachusetts.”

“We have a lot to look at,” LeBlanc said, and it all hinges on the board’s interpretations of the bylaw.

“Our [bylaw] definitions are horrible,” said Shippey. “They’re very convoluted … and don’t coincide with building code…”

There is a codification of the bylaws underway, Shippey said, to rectify this.

The board continued the discussion until June 28, at which time the board expects Romanelli to attend the meeting.

In other matters, the board swiftly approved an amendment to the Special Permit for Andrew Sidford Architects, 13 West Avenue, to vertically expand a structure upon the existing house’s foundation. Andrew Sidford said the foundation was ultimately deemed unsound to hold the weight of the house, and a new foundation was poured. Sidford was seeking permission to allow several square feet of the original crawl space beneath the house to be converted into proper basement space and height for storage only. The board deemed it non-detrimental to the neighborhood, and since it remained on the original footprint, the board approved the change.

The next meeting of the Marion Zoning Board of Appeals is scheduled for June 28at 7:30 pm at the Marion Town House.

Marion Zoning Board of Appeals

By Jean Perry