On September 14, Mattapoisett Conservation Agent Elizabeth Leidhold brought before the Mattapoisett Conservation Commission a letter received from a local advisory group. That advisory group is the Mattapoisett River Valley Water Supply Protection Advisory Committee, a watchdog group with their eyes on the public water supply, protecting and enhancing this vital resource for the towns of Marion, Mattapoisett, Fairhaven, and Rochester.

Comprised of town employees whose backgrounds include engineering, environmental protection, public water supplies, and similar expertise, group members are appointed by selectmen, water/sewer or public works management. There are such familiar names as Barry Denham, Nick Nicholson, Jeff Osuch, Laurell Farinon, and Naida Parker to name a few.

Their concern, as noted in the letter that Leidhold asked ConCom to review, regards a Mattapoisett landscaping business’s alleged practice of taking water from public sources without a permit or any type of permission. Yard Boss had been told by the Town of Rochester to desist taking water from Snipatuit Pond. Now, Mattapoisett was experiencing that activity.

Leidhold said Yard Boss was using the water for their hydro-seeding service. She said there were concerns that backwash from their trucks and other equipment might be contaminating the fresh water drinking supply.

Leidhold also said the advisory committee has plans to submit articles for upcoming town meeting warrants for new bylaws that would further protect the public water supply. What the group wanted from the commissioners was their action in stopping the alleged offender.

“I don’t know if this is in our preview,” said commission member Peter Newton. “I think this is a DEP or Army Corps issue.”

Chairman Bob Rogers said, “I’m in favor of telling them to stop because they are not permitted to do so anywhere in town.” He added, though, that ConCom lacks the authority to issue fines should the landscaping company be caught in the act.

Newton said he would make some calls and do some research and added, “This is going to be a tricky one.”

The agenda also included a request by Ted Gowdy of AERIE Homes, part of the Bay Club development. Gowdy requested two certificates of compliance, receiving one and the other requiring signage denoting a no-touch zone before the COC could be issued.

Gowdy also asked the commission to consider the clear cutting needed for the completion of the Split Rock development without the use of erosion screening to help minimize labor costs. He suggested instead that delineation flags would suffice in keeping the logging operation out of the wetlands.

Rogers said that he believed erosion controls were necessary and further pointed out that the commission had been working with Gowdy on many matters, yet Gowdy had not yet completed a replication area that was needed before further work could take place.

“I want that replication done,” Rogers said. “No good can come from taking short cuts on the limits of work. This project has been allowed to go right up to the wetlands lines,” he declared. Gowdy agreed to complete the replication area and install erosion control fencing before allowing the cutting of trees for the completion of the Split Rock neighborhood.

Seabreeze Lane was again on the agenda with resident Joseph Anzaldi returning with updated plans for remediating wetlands that had been encroached at his 3 Seabreeze Lane home. Anzaldi was given a one-year extension of previously issued orders of conditions.

It was a different story for 4 Seabreeze Lane. Homeowners Daniel and Lisa Craig had also encroached into wetlands but on an enormous scale, approximately 21,000 square feet. They had met previously with the Conservation Commission but were unable to reach a compromise in the amount and manner of remediation they would have to provide. The commission wrote an enforcement order with the assistance of Town Counsel Brian Winter that will be sent to the Craigs. On this night, they fine-tuned the final language that includes a reference to allowing the reinstatement of a deeded community easement through the Craig property for residents’ access from Eel Pond.

On the matter of extending an order of conditions for the Mattapoisett Water and Sewer Department for work taking place on Cove Street, Rogers expressed his frustration that no one from the town or the sub-contractor, Tighe & Bond, was present that night.

“I’m disappointed that a representative from the town isn’t here,” said Rogers. “We asked them to meet with us.” But he concluded that the commission “should take one for the team,” issuing the extension until September 2018.

The next meeting of the Mattapoisett Conservation Commission is scheduled for September 28 at 6:30 pm in the Mattapoisett Town Hall conference room.

By Marilou Newell

The Marion Zoning Board of Appeals on September 10 granted Tabor Academy one last continuance pertaining to the unpermitted ball field and its setback-encroaching backstop and lighting which is still in use without a permit nearly three years after the very first public hearing.

ZBA member Betsy Dunn took matters into her own hands when she sent an email to Town Counsel Jon Whitten asking how the board could proceed should it choose to deny any further continuances for the contentious matter that has seen an ever-changing ZBA during the 10 times since December 2012 the board has granted a continuance.

In her letter to Whitten, Dunn stated, “I think this is ridiculous to continue this any longer. If I cannot move to deny a further continuance, what can I do?”

Whitten responded to Dunn and told her that denying the continuance would put the board in the position of having to render a decision in the primary case of the backstop and the lighting. Whitten said in the email that he had always been confident that the backstop had no protection under the Dover Amendment that exempts educational institutions from certain local zoning regulations if the project is considered an educational use, and he wrote that he was about “50-50” in confidence in regard to the lighting issue, stating, “… a judge could conclude that the lighting is necessarily part of an educational use.”

“I read Tabor’s continued request for a continuance as their attorney’s acknowledgement that the Town will prevail,” wrote Whitten. “Having said that, one never knows what a judge will decide, even with the law crystal clear.”

Whitten suggested the board “do nothing” as its best course of action at this time, and continue to grant continuances so any final decision by the ZBA will not end up in litigation. He wrote, “Or, as I proposed to Tabor’s counsel three years ago, try and meet with the various town boards to see if a compromise could be worked out…”

“They know that the backstop is not legal,” said Dunn. “And we have been willing to work with the lights. They are the ones who are not willing to work.”

Dunn said Tabor Academy Head of School John Quirk might have cooperated a bit with the board in the past over the backstop, but Tabor’s counsel Mark Bobrowski specifically has not been cooperative, Dunn said. “Because you know Mark,” said Dunn. “Mark doesn’t want to lose. It’s not good for him.”

Other ZBA members shared Dunn’s frustration, but were concerned as to how to proceed from there.

“I don’t disagree with you,” said Chairman Eric Pierce. ”I just want to do it the right way.”

The board arrives for a public hearing for Tabor, no one from Tabor shows up, and the board continues the hearing for a later date, as Dunn explained it. “And we sit here like monkeys and say ‘aye.’ This time, I thought it’s time. Let’s do something.”

“If they’re not working in good faith … then the courts could tell us what to say in the decision,” said Pierce. “If we allow this variance, we’re creating a nonconformity which we are specifically told not to do.” Pierce pointed out that if the board does not take action on the matter, in the end, Tabor would win their request for a special permit by default. “But if a judge says ‘thou shalt not do it’,” said Pierce, “then it would be taken off our plate.”

As much as she wanted to, Dunn acknowledged that evening it would be unwise to make a motion to deny the continuance since it would force the board to close the public hearing and actually have to take action on the matter.

“They (Tabor Academy) do whatever without building permits,” said Dunn. “And that’s not right…. And I have ties to that school. I’ve paid them a lot of money. But what’s right is right, and what’s fair is fair.” If Tabor has enough money to build new dorms, Dunn said, then they have enough to fix the backstop.

Pierce said he will be prepared on how to act next time, and limited the next continuance for Tabor to a fortnight. “And that’s it,” said Pierce. “Period.”

“Their lack of presence at all these meetings speaks volumes,” said ZBA newcomer Kate Mahoney.

The board voted to continue the hearing until September 24.

Also during the September 10 meeting, the board accepted the letter of withdrawal for a parking variance for Sippican Preservation, LLC for the 16 Cottage Street condominium project.

The next meeting of the Marion Zoning Board of Appeals is scheduled for September 24 at 7:30 pm at the Marion Town House.

By Jean Perry

In the multi-layered regulations written and managed by the Federal Emergency Management Agency (FEMA), there are ways to change a property’s classification regarding whether or not it is considered part of a flood zone. Those processes are known as “Letter of Map Amendment” (LOMA), or “Letter of Map Revision – Based on Fill” (LOMR-F). A simple definition is that a location that FEMA has classified as being part of a flood zone may be reclassified if the elevation is changed by adding fill to bring the elevation higher.

That is what engineer Rich Charon of Charon Associates proposed on behalf of his client, Dale Allison of 359 Delano Road, during the September 9 meeting of the Marion Conservation Commission.

Charon detailed the FEMA process to the commissioners, noting that the application for such reclassification was pending and that it would be helpful to his client if the commission approved Allison’s application for a Request for Determination of Applicability when he filed the letter with FEMA.

The commissioners, having never before been faced with this type of complex request, were both intrigued and flummoxed.

Charon explained that Allison was intending to demolish an existing structure on the property and build a new home situated in a slightly different location, but only after 75 yards of fill were placed, thereby gaining a new elevation – one they hoped FEMA would favorably view as being out of the flood zone.

It would be a multi-step process. Charon said the applicant would first ask FEMA for a conditional LOMA and then seek a final LOMR-F classification to put the new home’s location out of the more costly flood zone.

Having never before dealt with an application of this sort, the commission toiled long minutes trying to get the language correct for their ruling. In the end, ConCom member Steve Gonsalves wrote a Positive 3 determination of the RDA subject to the application receiving a FEMA LOMA/LOMR-F response and approval of a Special Permit by the Marion Zoning Board of Appeals.

Also rendered during the meeting was a request by Steve Goodman, 8 Olde Meadow Road, for the removal of encroaching vegetation; a Negative 3 determination for the application of Chuong Pham, 22 Bass Point Road, for the addition of sonotubes; special conditions for a Notice of Intent were issued for the application by Moorings QPRT, 99-100 Mooring Road, for water main and utilities upgrades; Clean Energy Collective’s Notice of Intent received an Order of Conditions; and last, but not least, the commission’s own Norman Hills’ Notice of Intent received an Order of Conditions for the removal of a large pine tree in a jurisdictional area, the construction of a 24-foot by 24-foot garage, and the construction of a 160-foot by 17-foot patio within the 100-foot buffer of a bordering vegetated wetland at 680 Front Street.

The next meeting of the Marion Conservation Commission is scheduled for September 23 at 7:00 pm in the Town House conference room.

By Marilou Newell

Are expensive engineered plans required or would older engineered plans showing a septic layout and residential foundation be sufficient? That was the question the Rochester Zoning Board of Appeals tackled during its September 10 meeting.

Bryan and Robbi Reynolds of 269 High Street presented their application for a Special Permit to build an over-sized garage on their property. Building Inspector James Buckles denied them the building permit and sent them instead to the Zoning Board of Appeals to apply for a Special Permit. The Reynoldses proposed a garage in excess of 1,000 square feet.

When they came before the ZBA, though, the members were unsure if the old plans from G.A.F. Engineering that showed only the septic and building foundation placement were sufficient.

Board member Kirby Gilmore started the nearly 45-minute debate with, “The plan you have submitted is not sufficient for what we need.” Thus began a convoluted conversation on whether or not the application the Reynoldses submitted was the latest version of the form or an obsolete document, whether the board could act on the application as presented, if the hearing should be continued so the applicants could get a new engineered plan drawn showing the placement of the garage, and if there were procedural conflicts.

For his part, Bryan Reynolds said he was unaware and had not been informed that he needed to spend nearly $5,000 to get a plan of record drawn up and had been told, so he thought, that the plot plan submitted would be sufficient. This prompted Buckles, who was in attendance to say, “I’m sure I mentioned it.”

But not wanting to create a financial hardship for the applicant, the board members weighed the pros and cons of how and if they could and should proceed on the application then and there.

“It is very important that they follow procedures we’ve done with other applicants,” said Vice-Chairman David Arancio. Gilmore suggested the applicant request a continuance and return before the board, but time was of the essence – Reynolds wishes to get the structure completed before winter sets in.

Upon further discussion, and with Gilmore saying that the board’s only concern would be the size of the building, not the location on the lot, the board forged ahead in an attempt to reach common ground.

Finally, it was decided that the Reynoldses could have a Special Permit for the over-sized garage with conditions that no living space be included, no commercial activities would take place on the property, and that he return with as-built plans for the building inspector.

Earlier in the meeting, the board approved a variance for Nathan Mendes, 478 High Street, for the construction of a residential 20-foot by 24-foot expansion with only a 33-foot setback.

No date for the next meeting of the Rochester Zoning Board of Appeals was set.

By Marilou Newell