Ken Steen and the Marion Zoning Board of Appeals decided that a written agreement requiring the developer to build a sewer line as a prerequisite to pulling building permits for Heron Cove Estates was the result of a scrivener’s error when occupancy permits were what was intended.

            On November 30, the ZBA held a hastily called public meeting to beat a 20-day deadline to respond to a November 7 letter from Mark Bobrowski, Steen’s attorney, and preserve the town’s right to vote to consider the permitting amendment and a second amendment that would allow Steen to defer the payment of fees totaling $1,100,000 as substantial or insubstantial changes.

            Chairperson Cynthia Callow and members Dani Engwert and Will Tifft would cast the unanimous votes that first, officially consider the changes to the agreement as insubstantial (meaning they will not require a public hearing) and  second, approve a draft crafted by Town Counsel that also allows the deferral of fees (to a later date) that had originally been stipulated to be paid no more than 10 days after the first building permit is issued.

            Earlier this year, Steen was issued a Comprehensive Permit to build Heron Cove Estates, a 120-unit, affordable-housing rental project off Route 6 near the Wareham town line. Its construction would push the Town of Marion over the state-required threshold of 10% in affordable housing and authorize town officials to reject future such applications in favor of market-rate housing projects that generate property-tax revenue and sewer rate payers.

            Adjacent to Heron Cove Estates is such a development, a proposed, 48-unit, townhouse-style residential project currently in its vetting process with the Planning Board.

            The fees that Steen agreed to pay the town as part of his LIP agreement to build Heron Cove Estates include $590,000 for infiltration and inflow (sewage treatment), $410,000 (sewer connection) and not more than $110,000 toward the replacement of the Creek Road pumping station.

            Bobrowski insisted that Steen has no intention of reneging on the agreement, only requesting more than 10 days after a building permit is pulled. When given the floor, Steen explained that town officials initiated the concession.

            “Geoff (Gorman, town administrator) and the Select Board came to me and said, ‘Can you pull the building permits?’ I said, ‘Yeah, I’m happy to pull the building permits, but I’m not going to come out of pocket five or six-hundred thousand dollars to pull the building permits to keep the town in safe harbor when I don’t know where we’re going to start the project,’” Steen stated. “So it’s a two-fold situation. We’re trying to help the town out by coming in and getting building permits so that you guys can stay in safe harbor and reach (subsidized-housing inventory) numbers, but at the same time the other correction relative to the sewer line – what I believe is … potentially a scrivener’s error that passed through the process and we’re left with the only option to correct it in this manner.”

            Alternate member Tucker Burr expressed concern that construction delays at Heron Cove could cost the town the leverage it hopes to gain against future affordable-housing developments and suggested issuing only the number of building permits it would take to get Marion over 10% in affordable housing.

            “Where do we see ourselves a year and a half from now? Because, what’s going to happen is we’re going to issue all these permits, the SHI number is going to bump to like 12 percent,” said Burr, suggesting that Heron Cove might never be built. “What’s the plan if the SHI number goes back to 8 percent? What I’m considering should happen is there’s no reason to issue all the building permits at once. We only need to issue slightly less than half of them to get us back over the 10 percent (in affordable housing.) At a minimum, I think we could actually do even less than that to get us back into safe harbor.”

            Burr asked Steen what he had done in the past year to “sort of move toward getting the sewer built.” Steen said his activity has been limited to drawing plans, working with Marion’s Department of Public Works and, after applying several months ago to the state Department of Transportation and seeing no movement, forcing a meeting with MassDOT in Gorman’s office in mid-November.

            “The town actually stalled the MassDOT permit issuance because they wouldn’t sign an authorization form,” said Steen.

            Burr expressed concern that without a sewer built, Steen would not be in position to begin construction. Steen told Burr he was missing the point.

            “What the idea of the sewer line is, first of all – and you can go back and check the tapes and somehow this slipped through in the final permit – it’s ridiculous to make the installation of the sewer line a condition precedent before we can get a building permit. It always should have been ‘occupancy permit,’” said Steen. “That’s only common sense. Why would we want to hold up starting the project, theoretically, contingent upon a sewer line when, in fact, the town is protected at the end of the day because we have to install a sewer line in order to get an occupancy permit? … ‘A,’ we’re correcting that.”

            Burr contended that even if Building Commissioner Bob Grillo extends previously issued building permits beyond the 180-day mark, it would not extend how long they apply to Marion’s affordable-housing percentage.

            “They’re coming off the SHI in 18 months if you don’t build them. So if you don’t build them in 18 months, we’re back to square one, we’re back to 8 percent,” contended Burr, who suggested that issuing 50 permits now and more later would extend Marion’s stay in safe harbor.

            Steen believed that if the building permits got reissued, then the town would remain in safe harbor.

            “I’ll do whatever the town wants. My main concern here is to fix the issue with timing (the building of the) sewer line with building permits so it can be tied to occupancy permits so that when we’re ready to pull the trigger and start the project, we’re not held up by a sewer line that potentially might not be able to be installed if that start date is sometime after November 1 when the state does not allow you to work in the state highway. So that is my main concern, to request that the board make that modification,” said Steen. “The building permits … the town came to me, I’m happy to pull the building permits. I’d like to do it. It makes sense for everybody. I’m here to play ball, that’s the way I work. You guys tell me what you want to do, that’s kind of your thing, not mine.”

            Burr expressed appreciation to Steen for being amenable to the town’s requests but went on to suggest that the town’s representatives who negotiated the LIP agreement in the first place were not thinking about when the project would be built. He reiterated his preference that the town only issue the number of permits it would take to raise the SHI number to 10% in affordable housing, the threshold that allows Marion to refuse new applications filed with the state by developers.

            Callow asked Steen if the ZBA approved the draft agreement as amended by Town Counsel, would he be willing to follow up with Grillo on the matter of protecting Marion’s interests with a potentially measured issuance of building permits.

            “I think Tucker makes a good point, I know what he’s getting at. He may be right, I’m not sure, but I know what he’s getting at, and I think it’s a great thought process,” said Steen, indicating he would work with the town on the pulling of permits. “I would say that I would just take Tucker’s thoughts to Town Counsel and let her decide as to how to proceed. That’s just my suggestion.”

            Callow said she would bring Burr’s concern to Town Counsel and maintained her preference that the ZBA vote on substantial versus insubstantial changes in order to correct the agreement to reflect what both sides believe to be its original and best intentions, then handle the issuance of permits as a subsequent matter to be determined between Grillo, Gorman and Steen, as informed by Town Counsel.

            Tifft expressed the value of Burr’s discussion point but told Callow he was prepared to move forward and vote on the matter at hand.

            A substantial change would require a public hearing, whereas an insubstantial change would allow the board to approve the amendment that allows Steen to pull building permits in cooperation with the town’s request but without being tethered to a 10-day timeline that would require his payment of hundreds of thousands of dollars in associated fees. Those payments would be deferred to a later date.

            “For the record, I think these are massively substantial changes, but as long as we’re all in agreement that we want to do this, then that’s okay,” said Burr. “But I just would hate for anyone to be confused that changes like this in the future would also be considered insubstantial.”

            Anne Marie Tobia, the board administrator, noted that the amendment is “essentially a correction, though, between the selectmen’s original decision and the decision that the Zoning Board made. It’s a scrivener’s correction, so what we’re voting on is actually what the Select Board wanted it to be in the first place,” she said. “I’m not a voting member, but in my mind, this isn’t substantial, it’s a correction. That’s what I think.”

            “That completely discounts the idea that the people who voted on it believed that what was being passed was what they wanted to be passed,” argued Burr.

            “Not necessarily. The people that voted on it missed the mistake, missed the scrivener error. Yes, we did,” said Callow.

            Tobia reminded the board members that no occupancies will be allowed without the sewer line Steen agreed to install. “That sewer line is contingent upon occupancies, but it shouldn’t be contingent upon pulling (building) permits. That’s not fair,” she said.

            With that, the board took two unanimous votes, first to consider the amendments to the agreement as insubstantial and secondly to approve the draft as written by Town Counsel.

            The next meeting of the Marion Zoning Board of Appeals was not scheduled upon adjournment.

Marion Zoning Board of Appeals

By Mick Colageo

            The Mattapoisett Select Board heard from Conservation Commission member David Nicolosi and ConCom Chairman Mike King during the Select Board’s Tuesday night meeting on details of a wetlands violation on public lands.

            As Nicolosi described, an abutter to 1 Goodspeed Island Road notified the office of possible unpermitted activity. An extension to the guardrail on the easterly side had been erected. Not only was the fencing not permitted, it cut off public access to public spaces along an inlet well known for blue-crab fishing. Also, private-property signage on public lands had been put in place, and two cedar trees and grasses had been planted.

            Representing the party responsible for the violations was David Davignon of Schneider, Davignon & Leone, Inc. Davignon stated that his client was willing to do whatever the town wished to rectify the matter but asked that private-property signage where applicable be allowed.

            Nicolosi and King agreed that the property needs to be surveyed to ensure property lines are clearly marked in the field, that the environmental agent should examine grasses for acceptability to wetlands (and likely removal), remove offending fencing and install new signs indicating public and private spaces.

The homeowner in violation, who remained unnamed throughout the proceedings, will be required to file a Request for Determination of Applicability (RDA) after the fact. Meanwhile, the Conservation Commission will issue an emergency order to the town so work can commence.

            Select Board Chairman Jodi Bauer lauded town departments for their work during the December 18 storm, and residents were urged to contact the Conservation Commission office if storm damage impacted private wetland areas and repairs are needed.

            Earlier in the meeting, the board approved the use of $23,500 of ARPA funds for website upgrades.

            As the board prepared to close the meeting, Bauer and member Tyler Macallister noted the disappointment that was felt by many when during the Holiday in the Park event someone connected the tree light in advance of the formal lighting.

            Bauer suggested and the board agreed that in coming years the honor of lighting the tree should go to the winner of the Arbor Day Poster Contest held each year by the Tree Committee.

            The board also made preliminary plans for meetings with department heads for budget discussions in preparation for the Annual (spring) Town Meeting.

            The next meeting of the Mattapoisett Select Board is scheduled for Tuesday, January 9, at 6:30 pm.

Mattapoisett Select Board

By Marilou Newell

            Monday’s torrent of wind and hard rain eventually made the Silvershell Beach parking lot look like … Silvershell Beach itself at very high tide.

            In reporting to the Marion Select Board during Tuesday night’s public meeting, Town Administrator Geoff Gorman was thrilled to discuss the team approach led by Fire Chief Brian Jackvony and Police Chief Richard Nighelli, whom he said were “proactively involved” in reaching out to everyone in town with updates, including businesses affected by the weather.

            “When it hit yesterday morning … the DPW had been on the road from early in the morning,” said Gorman, describing the Department of Public Works’ efforts to rake out catch basins to prevent localized flooding and assorted other measures.

            Gorman further stated that the town received emails from Eversource explaining the utility company’s plans and response times.

            An “e-blast” was sent out to residents, and the storm was estimated to have peaked at 11:00 am. Approximately an hour from high tide, coastal-access areas such as Silvershell Beach, Island Wharf and Old Landing were flooded. A pier broke away from Old Landing, and a downed power line closed a section of Front Street at Ryder Road.

            The DPW collected three or four truckloads of downed branches, according to Gorman.

            The town kept Silvershell beach shut down into Tuesday, while 333 homes had lost power as of Tuesday morning. By Tuesday afternoon, almost all residences were back online.

            Unrelated and not on Tuesday’s agenda, therefore not discussed in accordance with the state’s Open Meeting Law, the Town of Marion sent out a press release Tuesday afternoon, informing residents that Aucoot Cove has been temporarily closed after elevated levels of bacteria were discovered.

            According to the release, a spike in levels of fecal coliform was detected by the town’s Wastewater Treatment Plant during routine testing on December 12. The results, received on December 15, came as a surprise following a December 11 sample indicating levels well within state-required limits.

            The state’s Division of Marine Fisheries recommended that Aucoot Cove remain closed for 21 days as a precautionary measure. New test samples were to be taken on Tuesday and Wednesday as part of an ongoing investigation into the source of the fecal coliform.

            Gorman confirmed after the meeting that the Aucoot Cove situation was not discussed publicly because the agenda had been set, rendering any discussion during public session unlawful.

            Fencing at the perimeter of the construction site of the new Maritime Center was scheduled to go up on Wednesday, as site manager Bob Grillo (Marion’s building commissioner) and his project team prepare to initiate site preparation beginning on December 27.

            Gorman is the liaison with the state’s Seaport Economic Council, the granting agency supplying the bulk of the financing. He said the SEC has requested a groundbreaking event be scheduled.

            “They’re very excited about this project,” said Gorman.

            “I have mixed feelings about making a big deal out of all this,” said Select Board Chairman Toby Burr, especially upon hearing about large plaques with town officials on the building. Burr said he prefers honoring the late George A. Jennings, Marion’s longest serving harbormaster (1986-99.)

            Gorman said he would investigate the details of the SEC’s expectations for the new harbormaster headquarters. He anticipates a standing sign entering Island Wharf that recognized the SEC and the Town of Marion.

            In updating the new DPW construction at Benson Brook, Gorman reported that Marion Facilities Manager Shaun Cormier and his team continue to identify items in the budget that can be moved internally. The deadline is April 1 for the opening of construction bids. Gorman said the next step is to review the bid package.

            “What’s keeping us right now is we don’t want to put anything out to bid that we can do ourselves. Most of the time bids are good for only 30 days. Shaun will know within a week,” he said.

            The Town House Conference Room is now open to support public meetings. Gorman instructed the public to reach out to Executive Assistant Donna Hemphill to request use of the room, which is intended only for in-person meetings, not hybrid meetings where people can attend remotely.

            Gorman is looking to getting the Town House “fobbed,” which would greatly improve security as well as convenience for town employees.

            Town offices will close at 11:30 am on two Fridays, December 22 and December 29 and be closed altogether on consecutive Mondays, December 25 and January 1.

            Citing the work done by Meghan Davis and Jody Dickerson of the Marion DPW, the town and contractor P.J. Keating are recipients of the National Asphalt Pavement Association (NAPA) 2023 Quality in Construction Award.

            Marion has received a $135,000 grant that will support an upgrade that will create robust IT structure that will enable the town to begin digitizing town records by the end of next year.

            Under Action Items, the Select Board votes to approve the addition of an Emergency Inspector Fee of $150 for same-day, weekend or holiday responses as required. Board member Randy Parker, an electrician, recused himself from the discussion and vote.

            The board also approved a Water/Sewer commitment of $155 for sewer reconnection (December 13.)

            The Marion Select Board will hold its next meeting on Wednesday, January 3, 2024, at 6:00 pm.

Marion Select Board

By Mick Colageo

            While Mattapoisett’s August 8 encounter with an EF-1 tornado was widely chronicled, including property damage at the Water Treatment Plant, Vinnie Furtado said during Tuesday’s meeting of the Mattapoisett River Valley Water Supply Protection Advisory Committee that the Town of Fairhaven was also hit.

            “When the tornado went through Mattapoisett, it also affected our well, the Tinkham Lane well. We’ve been having a heck of a time with the insurance company making things right,” said Furtado, the chairman of both the MRV Water District Commission and associated Water Supply Protection Advisory Committee. “We had fence damage, too, we had roof damage … we’ve been having a hard time.”

            The Tinkham Lane well itself was not damaged; minor damage at that well earlier this year led to a boil order as far away as Marion.

            In comparing notes, Mattapoisett Water Treatment Plant Supervisor Henri Renauld reported more favorable support from the town’s insurance carrier.

            “Insurance has been great with us,” said Renauld, acknowledging supply-chain programs that vendors are having. Right now, his challenge beyond backorders is getting set up for the repairs project and aligning with Eversource.

            Most recently, Wareham-based ABS Fence issued a change order that will result in Mattapoisett’s plant getting a better gate at a lower cost. Renauld said the town has already received $21,507.26 from insurance toward that project. He was waiting on a backordered heating system and reported difficulty getting a one-night, 1,000-kilowatt generator.

            In his Treasurer’s Report to the commission, Jeff Furtado announced a total of $79,606.93 in paid invoices for November – the commission approved.

            The MRV has set aside $736,000 for spending related to the Koch membrane project, and Renauld said that while waiting for official loan approval he has received two invoices from the company for $109,750 and $219,500 ($329,250 total.)

            Suggesting that Koch is “most likely waiting for these checks to start,” strongly suggested the MRV using the funds.

            The MRV has received a letter of approval for a $2,100,000 loan, but Renauld said it is important that the commission make the initial investment to keep the timeline and get the project done.

            Jeff Furtado asked if there are any other immediate expenses that the commissioners should consider before closing the discussion. Renauld said he is expecting quotes on infrastructure at less than $50,000.

            The commissioners voted to pay Koch the invoiced portion of the capital set aside for the purchase of the membranes. Blair Bailey, who serves the MRV as legal counsel, suggested reaching out to bond counsel to advise them of the plan.

            For the district operating budget, the commission approved a total assessment of $2,390,187, a 1.4% increase over last year.

            Meghan Davis revisited the previously discussed subject of a Water Management Act (WMA) registration statement that would author a bylaw for all MRV member towns where it concerns water-withdrawal rights.

            Noting that the MRV has authority to issue administrative penalties for water violations, Renauld, Vinnie Furtado and Tata & Howard engineer Jon Gregory suggested taking the matter before member-town officials before considering a regional action.

            Davis acknowledged the need to reconvene as a subcommittee, talk with member-town select boards, then report back to the MRV. Mattapoisett Town Administrator Mike Lorenco reminded the membership that the timeline for Annual Town Meeting is tight.

            In his update on the Water Treatment Plant filter upgrade project, Tata & Howard engineer Jon Gregory said he is waiting on a draft for SRF 2024 (funding) and reportedly submitted a budget-evaluation form for the project’s second contract (installation.)

            Anticipating full design (based on local specifications) by the end of next week, Gregory said he will review and get feedback to Koch and proceed from there. He called the process a significant step. Gregory will also update the MRV regarding its project status on capital lists.

            One tricky point will be a temporary bypass system while the plant is down and the filtering system is being replaced with state-of-the-art technology.

            Gregory, Renauld, Davis and Vinnie and Jeff Furtado participated in a recent conference call with the state Department of Environmental Protection to discuss the process. Gregory said one takeaway is the need to keep a close track on secondary contaminants such as manganese levels.

            “It seems they’re on board with the plan,” said Gregory.

            Meantime, Renauld said that divers vacuumed tanks, and Well Number 6 was taken offline to clean and make ready for its crucial role in the bypass during installation of the new filtering system that is to take place next winter.

            Tata & Howard is ready to draft the MRV’s annual report and anticipates a draft in time for the commission’s January 9 meeting. At that time, Gregory and Renauld will update the five-year capital plan.

            In his Treatment Plant operations update, Renauld said the plant is running well and that an oxygen leak was repaired.

            Rochester Water Commission Chairman Fred Underhill attended the meeting to explain his town’s request that the MRV share river-monitoring data to support Rochester’s study on water levels in its major bodies of water.

            Gregory, who helped Underhill work out a technological kink to access the meeting, said there is a MRV stream gauge located in a spot that would benefit Rochester’s project.

            “This is not only important to Rochester as far as I’m concerned but to the River Valley,” said Underhill. “The important part right now is how much water is pulling into Snipatuit and Quittacas and can we put a handle to that?”

            Gregory said he will put together a packet of information that dates back to 2011, calling it “a large pile of data” that will be sent to Rochester Town Planner Nancy Durfee.

            The recent regional meeting of water officials was considered “very productive” by David Pierce, who also thought the dialogue was “very helpful.” Davis was “pleasantly surprised” that representatives from Middleborough and Wareham were able to attend and discuss their challenges.

            Vinnie Furtado agreed with Pierce and Davis but expressed disappointment in a lack of attendance at the virtual meeting by member-town elected officials.

            “I was personally and professionally disappointed that it wasn’t better attended,” he said. “Considering the importance of what we do and that we control the public water supply for four communities, I would have expected more than that. … It was just disappointing that no one – no one – came. … I think you’ve got to be better than that.”

            Member Sandy Keese suggested an earlier push for next year.

            In his Treasurer’s Report to the MRV Water Supply Protection Advisory Committee, Jeff Furtado announced invoices, a balance of $130,079.96 and deposits featuring $58,726.70 (Fairhaven and Marion assessments.) Withdrawals as of November 30 totaled $11,176.94. The committee voted to accept the report.

            The next meeting of the MRV Water District Commission/Water Supply Protection Advisory Committee is scheduled for January 9, 2024.

MRV Water District Commission/Water Supply Protection Advisory Committee

By Mick Colageo