The Marion Conservation Commission voted during its May 24 public meeting to issue 122 Register Road LLC an Order of Conditions for a proposed boat-lift system and access walkway.

            During the public hearing, project representative Dave Davignon of Schneider, Davignon & Leone, Inc. explained that the activity is to be done by a crane set on a barge and occur on land under ocean and land containing shellfish, requiring Chapter 91 Waterways licensing and the approval of the Army Corps of Engineers, which issued the original permit.

            Davignon said he was still waiting on comment from the Harbormaster but had received comment from the state Department of Marine Fisheries and from Natural Heritage that he said suggested no impact by the project. He noted likewise regarding the Department of Environmental Protection.

            Commissioner Shaun Walsh sought explanation as to the steel structure slightly off the existing grade. Davignon clarified that the structure will be rigged to rise up with the boat. He said the commissioners could view an example of the same on Water Street.

            Mark Manganello of LEC Environmental was engaged by the property owner, and Davignon said Manganello expects to visit the site in mid-June, considered an optimum time to evaluate the saltmarsh area and determine what it needs in the way of mitigation efforts.

            Chairman Jeff Doubrava and Walsh considered the Division of Marine Fisheries comments to be “boiler plate” in nature.

            Noting that the original application generated much in a way of public comment, Doubrava sought public comment and got none. With that, the commission voted to close the public hearing.

            The Sippican Lands Trust received a Negative Determination of Applicability for approximately 100 feet of split-rail fence with 10 to 12 posts to be installed on a crushed-stone path that leads down to the wood boardwalk.

            Responding to comments that wheelchair users could lose control on the boardwalk, Cathy Stone of the SLT explained the project. Stone asks if the SLT could add a trench, citing the gully caused by heavy rains. “We’re having to fix it a lot and don’t want it to disappear, have a huge river going down there,” said Stone.

            Member Emil Assing suggested a design and proposal in writing in order to add a trench to the project. Doubrava agreed with Assing, qualifying it doesn’t have to come from an engineer. Conservation Agent Doug Guey-Lee said a trench could be contextualized in the application under management plans.

            Fernandes Pacheco was issued a Negative Determination of Applicability to replace eight to 12 trees and bring an area back to acceptable visual condition at 1 Sparrow Lane. The conditions were blamed on what Doubrava characterized as “a hack job” by a utility company.

            “Very bad, beyond any kind of possibility of our imagination that it would come out like this, but it was just horrific, actually,” said Pacheco.

            Commissioners Assing, Walsh and Matt Schultz visited the site. Walsh said every tree growing out there was cut down, and he would file the same application with the commission.

            Pacheco said that the pulling of stumps will require the addition of topsoil, but there is no intention to change the grade of the area. He wants to extend his fence one more panel (adding one post.)

            In his Conservation Agent’s Report, Guey-Lee updated the commission on three matters, neighbor’s inquiry as to a shed’s placement at 27 Fieldstone relative to the commission’s negative determination of applicability, the need for at least an RDA filing to replace a missing step to a concrete staircase at 90 Point Road, and what the Harbormaster reported as evidence that tree limbs have been thrown down into the water from 196 Point Road that are causing a potential navigational hazard.

            The commission issued a three-year extension of a permit for Barrett and Virginia Levenson regarding their ongoing work at 174 Cross Neck Road.

            The commission also voted to approve the issuance of certificates of compliance to Charles Coolidge for work performed on three lots, 604, 604B and 604C Point Road.

            Doubrava presided over the meeting remotely via Zoom because he had COVID-19 the prior week and, while allowed by protocol to go out in public while wearing a facemask, he did not think he could lead the meeting while wearing a mask.

            The next meeting of the Marion Conservation Commission is scheduled for Wednesday, June 14, at 7:00 pm.

Rochester’s Conservation Commission Tuesday effectively slammed the brakes on a proposal to place a multitown conservation restriction on 241 acres of aquifer land from Acushnet to Mattapoisett that includes 13 acres at Red Brick Farms on the east side of Long Plain Road and the north side of Wolf Island Road.

            The deal breaker was Buzzards Bay Coalition spokesperson Allen Decker’s explanation that the regional CR agreement will give Mattapoisett the water rights to the Rochester parcel under a coownership agreement with the Mattapoisett River Valley Water District. The regional CR, in fact, already has language that Mattapoisett alone will have the right to install up to four new wells on the property, he said.

            Commission members complained that Rochester has lost the right to use its own water resources too many times over the decades, such as a century ago to the New Bedford Water Department. They were united in their refusal to sign the Red Brick Farms CR without more information, especially as to whether the CR can be rewritten to give Rochester rights to some of that water.

            “Any chance this can be rewritten to get us a well?” commission member Ben Bailey asked.

            “I don’t think we can rewrite the restriction at this point,” Decker responded.

            Commission Chairman Christopher Gerrior told Decker the panel will not be able to sign the CR without more information from other boards as to its rights in this instance and more information from Decker himself.

            Decker agreed to attend the commission’s next meeting on June 20 and asked for direction on what the commission needs from him. “If this derails a $6,000,000 conservation project, that will be a problem,” he said. “What can I do to get this group what it needs?”

            “You can explore a way to include Rochester getting some of this water going to Mattapoisett,” Bailey said bluntly. “There is a disappointment across this town that Rochester has no right to its water, and that will continue to be the case.”

            Prior to this issue, the commission approved a plan to construct a 119×50-foot steel farm building within 70 feet of a shoreline at 570 New Bedford Road. In response to a Request for Determination of Applicability, the board decided the project does not need wetland-regulations restrictions.

            The commission also approved a plan to construct a new residence at 485 Neck Road with work to include grading for a portion of the patio and landscaping within a wetlands buffer zone with a standard Order of Conditions.

            Gerrior announced that William Clapp has resigned from the Conservation Commission. Gerrior said Clapp has moved from the area, and the board is now actively seeking new commission members.

            He also announced that the owner of 89 Box Turtle Drive was unable to appear or send his attorney to the June 6 meeting but has promised to appear at the board’s next meeting. The board voted against resuming fining him until after that meeting.

            In the year-long dispute over the clearing of land there too close to wetlands without a permit at 89 Box Turtle Drive, the board had approved giving owner Doug Rose until June 6 to provide an acceptable restoration plan without being fined for his noncompliance.

            The Conservation Commission set its next meeting for Tuesday, June 20, starting at 7:00 pm at Town Hall, 1 Constitution Way.

By Michael J. DeCicco

Applicants Terry Buckley and Gail Cullen were denied in their attempt to gain approval for a ground-mounted solar array reaching up to 10 feet high at their 6 Derby Lane home.

            Their request for a variance at the Marion Zoning Board of Appeals’ May 25 public meeting was deliberated and rejected with votes from members Margie Baldwin, Dana Nilson, Will Tifft and Chairperson Cynthia Callow. Associate member Danielle Engwert’s was the lone dissenting vote in a 4-1 decision.

            Theoretically, a variance could have be granted pursuant to Section 230-2.2 of the Zoning Bylaws had the following four conditions been met as laid out by Callow prior to the public hearing: owing to circumstances relating to soil conditions, shape or topography of land or structures, affecting those land or structures but generally not affecting the zone in which the project is located; that enforcement would result in substantial hardship financial or otherwise; that desirable relief may be granted without substantial detriment to the public good; and without nullifying from the intent or purpose of the ordinance or bylaw.

            In presenting the case remotely via Zoom, the applicant’s representative, Christina D’Alessandro, project manager at SunVolt Solar, told the board that the 10-foot height is recommended for optimum solar production. A change to 6 feet, she said, would cause between 10% and 20% decrease in solar production over the next 10 years.

            Nilson sought a more thorough explanation of the science calling for 10 feet in height rather than 6 feet. D’Alessandro explained that the applicant’s property is vulnerable to flooding.

            The property owner told the board that the greenhouse at the site has not been flooded but that water congregates from surrounding properties especially in early spring. Later in the meeting, she would show board members photos of her yard.

            After clarifying that the solar array is planned for ground approximating the same grade as the land where the greenhouse sits, Nilson said he is baffled by the need for 4 feet of flood protection. The issue of flooding gave way to the challenge of tree obstruction.

            Building Commissioner Bob Grillo, in attendance at the meeting, said he has not permitted a ground-mounted solar project since his hire in Marion, but he said the project being vetted on May 25 was among five that he had received phone calls to discuss variances for height.

            “So I think that the 6 feet is an issue because none of the other ones got built,” he said. “The same specific question was posed: ‘Can we go higher than 6 feet?’ And I said it would require a variance.”

            Baldwin said there are many ground-mounted installations in town built only to the 6-foot maximum. “It makes me a little ill at ease to just say, ‘You need more solar so raise it?'”

            “If there’s a problem with the bylaw, that’s a separate issue,” said Nilson.

            “I don’t think that’s for us to decide,” said Baldwin, who asked if the array could be placed in the middle of the lot to alleviate angular obstructions from the sun. D’Alessandro said that would not solve the problem.

            Tifft said, “I don’t think it’s our place, the Zoning Board of Appeals, to overturn what the town has voted on and what the advisory of the laws are there to do, particularly if this looks like the first of what is going to be an onslaught. The precedence here really worries me. We are in effect taking on a role that is not our role in this case.”

            Callow countered that point by rhetorically asking why have a ZBA.

            ZBA associate member Tucker Burr, whose vote would not be needed on this case, said the solar bylaw, revised in 2021, was “not super well written.” Nonetheless, he insisted that the fact the 6-foot maximum was voted by two-thirds majority at Town Meeting is the only relevant fact for the application of the bylaw. Otherwise, he asserted, the dissenting voters could join the ZBA and nullify that vote.

            Engwert said the board could theoretically override the bylaw by granting a variance. She suggested the board concentrate on the four requirements for the variance sought.

            The applicant noted that the neighbors expressed no issues with the plan, but the membership at large felt that the case for a variance was not compelling.

            The next meeting of the Marion Zoning Board of Appeals was not announced at adjournment.

Marion Zoning Board of Appeals

By Mick Colageo