The Marion Conservation Commission was finally ready to approve the restoration plan by owners of the Marion Golf Club during its September 28 public meeting, setting the table for the removal of the Enforcement Order under which the 10 South Lane club’s owners have been working.

            But a conclusion to the dispute came without the typical sense of celebration and unity between the town and the applicant.

            Once the commissioners finished discussing the latest revisions to the planting plan as presented by Brian Madden from LEC Environmental, the glove ironically came off.

            Representing the club, Will Fulton asked for the floor and introduced his concern with “trespassing issues” and said the process made the part-time Marion resident feel “bullied.”

            “We are doing something here for the public good, and no one here seems to want to recognize that,” he said, noting what he considers the commission’s intrusions on his property to have hurt his “sense of the community.”

            Acknowledging that Fulton was trying to establish the property owners’ side of the story, Conservation Commission Chairman Jeff Doubrava said that the town has engaged with the golf course for over two years on the case.

            “We don’t issue enforcement orders,” said Doubrava, who in his 10th year sitting on the commission noted that this was only the third such order through a private party, calling it “a rare event.”

            Another course representative, Michael Kane, clarified that the golf course did not perform the work. “We reject the notion that this action against the Marion Golf Course has any standing at all because the golf course didn’t do this work,” he said.

            Doubrava argued that the contractors did not, as asserted by the applicant, remove invasive species, but Kane argued that course owners “engaged someone to remove invasive species from that area,” following state-recommended guidelines.

            ConCom member Shaun Walsh told Kane that there is no exemption from Wetlands Act permitting for invasive-species removal, no matter how beneficial the action to the land. “I agree with Jeff, this was not invasive-species removal, but even if it was, it was subject to permitting,” said Walsh.

            Walsh called Fulton’s assertion of trespassing as “absolutely, factually inaccurate – for the record,” going on to emphasize that Fulton’s topic was not relevant to the business of the Marion Conservation Commission.

            Fulton reiterated his “feeling” that the course has undeservedly suffered the commission’s wrath. He said he and others are pouring money into the course and losing money on it and that the commission members and their families are persecuting the golf course “harder than any other group in Marion.”

            Doubrava reasserted that the Enforcement Order stems from clear-cutting done in the buffer zone and the wetlands area, calling it one of the “more-egregious things” requiring commission response. Fulton vehemently disagreed with Doubrava’s characterization of the activity.

            Kane sought confirmation that the issue is now solved (paving the way for cancellation of the existing Enforcement Order.) Doubrava acknowledged the direction but said, “We seem to be throwing hand grenades in the air right now.”

            Kane apologized, but Fulton reopened his Zoom microphone to protest any apology for his offense to what he considers punishment from the commission for trying to open the Marion Golf Club to all walks of life. “We are trying to do something that’s good,” Fulton stressed, reiterating trespassing accusations against Walsh’s daughter.

            Walsh told Fulton he is sorry that Fulton feels as he does but that bringing someone’s family member into the dispute is “wholly inappropriate, well beyond the scope of this public meeting.”

            Dissatisfied with the narrative of the history of the situation, Kane said that as the Marion Harbor East Trust, his group filed a forestry plan with the state that he said was approved. He said some of the suggested cutting ended when it was learned that the area being cut should have shown up on the GIS map.

            Walsh contradicted Kane’s narrative, saying that the cutting started in a jurisdictional area prior to the filing of a forestry plan. Kane countered that after the course’s forestry plan was approved and before a cutting plan was approved, the property owners were allowed by the state to cut in areas not near wetlands.

            “We thought that area where we started was not close to a wetland, but it turned out it was,” said Kane, noting that the Cease and Desist order from the town stopped cutting “for about a year.”

            Doubrava said the commission was “not going to go point to point” with Kane, who told the commission he was looking to establish common ground in fact.

            Doubrava said Marion’s first Cease and Desist order was issued not for the cutting plan but for the undergrowth in the resource area. Kane disagreed on the history of the project, saying the Cease and Desist was withdrawn because the landowners were found to be doing nothing wrong.

            “You guys filed a Cease and Desist (order) on us when we had a legitimate cutting plan and a legitimate forestry plan,” insisted Kane.

            Kane insisted his goal in discussing the matter was to confirm his understanding of the facts of the case.

            “We understand that you have jurisdiction, that we should have come to you,” he said. “But … we weren’t mowing the underbrush because we didn’t like the way it looked. We’re mowing it to get rid of invasive species.”

            Walsh reiterated the town’s position prohibiting “mowing down to the ground” invasive species and said the commission had held several public meetings devoted to vet the activity going at the course. He said the state could recommend such action “selectively” but not “indiscriminately.”

            Representing the town, attorney A. Alexander Weisheit of KP Law recommended the discussion be ended in favor of a vote. The property owners’ legal representation disagreed with putting a lid on the discussion. She said the goal posts are moved every time the applicant comes back with a revision for the commission’s approval.

            The commission finally voted to close the public hearing and immediately voted unanimously to accept the restoration plan.

            The Enforcement Order will be canceled when the commission determines that the conditions have been carried out. The two sides’ attorneys agreed that any future site visits by commissioners are preceded by 24 hours’ notice in writing.

            In David Davignon’s absence, Deb Ewing represented the Cove in Marion Trust, Jenney Lane, in its Notice of Intent to conduct proposed maintenance of vegetation.

            Ewing: State Dept. of Fisheries and Wildlife (aka MassWildlife) said there is no problem mowing the field so long as it is done within the planned time frame of October through April.

            Conservation Agent Doug Guey-Lee acknowledged the continuance was granted in light of the NEHP letter. “I think we need to discuss the consent issue,” he recommended to the commission.

            Walsh said the commission needed to discuss the NOI and regulations requirements for approval from the landowner (Town of Marion) when the project location is not owned by the applicant. Walsh referenced an Order of Conditions voted according to a 2015 application, but he suggested the current applicants acquire permission from town management.

            “I don’t think we can issue an Order of Conditions until that regulatory requirement is satisfied,” he said.

            Ewing said there have been no changes to the 2015 application, but Doubrava said the NOI needs the signature of the Select Board or himself. He also said he thinks the plan looks different than what was approved in 2015.

            As an example, Doubrava pointed out that the original Order of Conditions sanctioned mowing in the buffer zone, noting that no mowing was planned for the Department of Public Works area. He agreed that the proposal has not changed.

            Acknowledging the proposal’s positive impact on diamondback terrapins, Doubrava questioned the proposal’s assertion of positive impact on the box-turtle health and population.

            “I’m still struggling with the necessity of cutting bordering, vegetated wetland,” said Walsh, disputing the interpretation of the 2015 Order of Conditions as validating the necessity of cutting DPW wetlands for the sake of box-turtle habitat. He cited state-sponsored literature stating that the box turtle thrives in a variety of terrains. “It’s not like the Diamondback Terrapin, that has to have access to the water, unimpeded.”

            Ewing said the applicants have not cut wetlands and citing both Diamondback Terrapins and box turtles nesting in the field, she sought clarification.

            “I’m not saying it’s necessary to cut wetlands … the terrapins don’t just nest in the garden, they do look for other areas, and often they will go up and across roads and into people’s yards and driveways because it’s low growing,” said Ewing. “They do come through that field. … We’re not trying to mow any wetlands.”

            Doubrava shared a map of the 2015 plan with the meeting, and Ewing said the applicants do not mow in the area of concern. “Is it possible to strike that from the condition …” she asked.

            Walsh said Google maps indicated mowing in that area but also said the proposal does not need revision but just an added condition that the Conservation Commission is only sanctioning mowing in the buffer zone to bordering vegetated wetlands.

            “I believe that’s all we were asking for,” said Ewing. “When you walk through that area, you do see a lot of nesting sites.”

            ConCom member Emil Assing agreed with the positivity of the project but said the DPW open space being used as meadows would be better served by letting it grow back while the applicants continue maintaining the meadow area as is.

            At Walsh’s recommendation, the commission voted to continue the public hearing to Wednesday, October 12, at 7:00 pm.

            In other action, the Barbara L. Grainger Trust was issued an Order of Conditions for a float-anchor-improvement project at 33 East Avenue.

            Kenneth and Darla Parsons were voted an Amended Order of Conditions for a proposed reconstruction of a house and garage at 27 Dexter Road.

            The commission voted to extend by three years a permit for activity that Robert and Joan Wilson are conducting at 43 Holly Road.

            Guey-Lee said a letter to a property owner whose constructed pier resulted in some destruction of the saltmarsh at 122 Register Road.

            The members voted to appoint Walsh to represent the commission to the Stewards of Community Open Space Committee.

            The commissioners offered no comment to the Planning Board regarding a proposed subdivision off River Road.

            The commission conducted executive session at the start of the meeting to discuss ongoing litigation with regard to Purpose 3 of the Massachusetts General Law c. 30A, Section 21(a)(3).

            The next meeting of the Marion Conservation Commission is scheduled for Wednesday, October 12, at 7:00 pm.

Marion Conservation Commission

By Mick Colageo

            Chairperson Cynthia Callow finds her eligible voting body on the Marion Zoning Board of Appeals dwindling to a critical level just as the Heron Cove LLC case comes to a head.

            The September 29 public meeting of the ZBA, it was hoped on all sides, would be a formality in which the public hearing would be closed, and the board, having read its decision as drafted by Town Counsel Jon Witten, would be ready to vote its approval of the project.

            Ken Steen’s 120-unit, affordable-housing development planned off Route 6 near the Wareham town line is a Local Initiative Program (LIP) 670CMR negotiated with and approved by the Marion Select Board, and the ZBA is the lone municipal vetting authority. The rest is done under the watch of the state.

            The ZBA’s work was thought to be near completion when complications arose after two members were missing from the September 29 session.

            Minus Dr. Ed Hoffer (illness) and Tucker Burr, the board was down to the bare minimum three eligible voters, Callow, Dani Engwert and Will Tifft. All other ZBA members had already missed at least one meeting except for Burr, who missed approximately 10 minutes of one of the meetings.

            Witten said the ZBA needed three affirmative votes to approve the project, so given the strained situation, that would require a unanimous vote. Witten advised Callow to hold off on opening the continued public hearing in hopes that Burr would appear and bring the potentially positive voting body to four.

            Dana Nilson was among those who missed one meeting and kept diligent notes, but the ZBA does not have the Mullin Rule at its disposal. According to Witten, in order for the board to vote an approval of the Heron Cove LLC project, a minimum of three voters who have attended every session of the public hearing are needed.

            ZBA member Margie Baldwin was also in attendance, along with Zoning/Building administrator Anne Marie Tobia and Building Commissioner Bob Grillo.

            Representing Steen, Phil Cordeiro of Allen & Major Associates said the latest revision was meant to bring together one final set of plans addressing landscaping details and signage and tentative locations that had been discussed.

            Acknowledging that the developer’s requested waivers relate to the increase from 96 units on the site to 120, it occurred to Tifft that the applicant considers every requested waiver economically essential, yet the ZBA had to date learned nothing of the economics of the project.

            Citing the potential for negative feedback toward the board for lack of due diligence, a charge he considered potentially credible given the lack of economic information, Tifft asked Witten, “To what level do we need to be concerned about that?”

            Witten called it “a great question” and said that a LIP project (negotiated by the Select Board) comes with the assumption that it has political support in the town, rendering the issue of economics “secondary” to the ZBA.

            “I don’t think it matters if it was 96 (units) or 120 because there was never approval (from the Select Board) for 96,” explained Witten, noting that Steen and the Select Board share the presumption that he needs 120 units to make the project successful. “You’re not looking the other way, you’re just making it a secondary issue.”

            Tifft suggested that being left in the economic dark still leaves the ZBA vulnerable to second guessing.

            Witten reminded the board that it has 40 days from the closing of the public hearing to render a decision and that Steen wanted the opportunity to review the draft decision, but before the meeting ended, the public hearing was voted closed.

            Before the ZBA reached that point, at Witten’s suggestion, Attorney Mark Bobrowski weighed in. He thanked Witten for his hard work on the decision and offered no fundamental disagreements, but he did request some “tweaks.”

            As a rental project, Steen asserted that a surety is not something the applicant should be required to post. Witten agreed in principle, but given the fact Steen’s crew will be working in the public right of way, said the matter should be left up to the board. Steen countered that, since his team has committed to perform public-way infrastructure. Witten agreed that the requirement should be canceled.

            Bobrowski said we are about to enter into a recession that typically lasts two or three years. As a result, he felt the timeline should be relaxed. Witten left the matter up to the ZBA but noted the window’s relevance considering the development’s ability to push Marion over the 10% affordable-housing requirement.

            “Once we start it, we will not stop,” said Steen. “Right now, what’s happened in the last 90 days, there’s no way we can start this. We need the (interest) rates to come back up. … It’s just not going to happen right now.”

            Witten suggested five years from the issuance of the occupancy permit, and Bobrowski found that option appealing.

            Witten confirmed to Steen that he had not written any response to the suggestion for colors. The board members spoke immediate approval of the colors. Witten said his next draft will include reference to colors.

            Trash policy was discussed, and the ZBA wished to hear back from Town Administrator Jay McGrail and the Select Board. Witten suggested asking Bobrowski for another extension of the public hearing, which he was happy to grant as all sides benefit.

            Callow said that while she is not in a hurry, she felt strongly that the board has done its due diligence. She also reiterated her concern about a dwindling body of eligible approving voters.

            The board voted to close the public hearing with a request that Witten would consult with town officials on a trash agreement, then deliver a second draft to the ZBA.

            Steen thanked the board members, Witten and Anne Marie Tobia, the Zoning/Building administrator and Building Commissioner Bob Grillo for their work on the process.

            The project vote is anticipated at the next meeting of the ZBA scheduled for Thursday, October 13, at 6:30 pm.

Marion Zoning Board of Appeals

By Mick Colageo

While several governing groups including the Board of Health, Marine Resources Commission and the Zoning Board of Appeals gained new members at Monday’s public meeting of the Marion Select Board, George T.J. Walker announced a terrible loss for the Board of Assessors.

            Walker, the chairman of the Assessors, reported the passing of Catherine A. Gibbs on September 28 at age 92.

            Gibbs, explained Walker, was a treasure for the Town of Marion, having served in different capacities for over 50 years. She passed away while in elected office, her latest three-year term not to expire until 2025.

            Born in Wareham, her history of service to the Town of Marion began in what was then known as the superintendent’s office, then the registrar’s office, then the Department of Public Works, all before beginning 44 years of work in the Assessor’s office.

            “She had her own special way of welcoming taxpayers into the Assessor’s office,” said Walker, noting that while technology wasn’t anywhere near what it is today, Marion homeowners “always walked out with the information.”

            Walkers said that Gibbs worked for the taxpayer first. Following her retirement from full-time employment in 2001, Gibbs ran for elected office in 2003 and served as an elected member for 17 years. Her wealth of knowledge made her a valuable asset to the town, he said.

            “Catherine was a very humble person,” Walker said, noting that she would not have wanted any attention for herself but at the same time, he told the Select Board that “Pat (DeCosta) and I and the rest of the office appreciated” the opportunity to bring this loss to the town’s attention.

            As anticipated following his September 27 interview, Board of Health Chairman Dr. John Howard recommended Albin R. Johnson III for appointment to fill the vacancy left by Dot Brown until the May 2023 Town Election.

            Citing Johnson’s vast experience, the Select Board agreed and voted unanimously to make the appointment.

            The Board of Health is further stressed by medical issues that are sidelining Dr. Ed Hoffer, but Town Administrator Jay McGrail told the Select Board that he spoke with Hoffer earlier in the day and relayed Hoffer’s support.

            Howard said that both Johnson and Tina McMichael are qualified. He said he had worked with Johnson before and is well aware of the new member’s expertise on septic regulations.

            Following interviews on candidates in attendance, the Select Board voted to approve the following appointments: Sarah Tiago to the Fireworks Committee; Abigail Anderson, Gloria Monte and Sandra Smith to the Scholarship Committee; Ray Cullum and Tad Wollenhaupt to the MRC and Joan Gardner to the ZBA.

            In his Town Administrator’s Report, McGrail told the board that water restrictions in place are due to expire on Friday, October 7. McGrail recommended letting the restrictions expire and revisiting the matter next year.

            Select Board member Norm Hills expressed concern that while recent rain cuts down on the fire threat, it doesn’t do anything for the aquifer. McGrail said that the water district has a sufficient supply.

            The board took no action, which will result in the expiration of the restriction.

            The Lagoon Project is dealing with a snag, as a support structure has apparently connected to the liner in the smaller forebay. The matter has received attention from different points, including Methuen Construction and designer CDM Smith as they analyze potential solutions.

            As a result, the lagoon has not reached “substantial completion” so the clock has not yet started ticking on the liner warranty. The state Department of Environmental Protection had Marion working to meet a completion date of September 15.

            Local developer and longtime Marion resident Sherman Briggs has donated sections of pink granite that it is hoped will solve what McGrail is calling “a public-safety issue.”

            The granite will lay atop the existing seawall at Old Landing and prevent vehicles from driving off the edge of the boat ramp. Marion Fence was consulted on the project. The DPW will install the pieces that Select Board Chairman Randy Parker estimates are 6- to 7-feet long and 17.5-inches wide. “They look really nice,” he said. The Conservation Commission made a site visit earlier Tuesday.

            The Select Board voted to approve the installation of a new utility pole on Spring Street that will help move along the construction of Tabor Academy’s new Travis Roy student center. Tristan deBarros of Saltonstall Architects presented the project and offered some detail on the installation.

            In other business, the Select Board approved a one-day liquor license for the Marion Social Club for a November 19 birthday party from 12:00 pm to 3:00 pm, along with two water/sewer commitments: $284.08 (credit memo September 28) and $3,636.43 (quarterly billing September 29.)

            The next meeting of the Marion Select Board is scheduled for Tuesday, October 18, at 6:00 pm at the Marion Police Station on Route 6.

Marion Select Board

By Mick Colageo