The proposed Cranberry Highway 40R development saw significant progress during the Rochester Conservation Commission meeting held on December 15. After a roughly yearlong process to receive commission approval, the Notice of Intent Application filed by Steen Realty was unanimously approved by the commission members.

            Phil Cordeiro, representing Steen Realty, came before the commission to notify members of his progress with the Rochester Planning Board. The Planning Board closed the public hearing on the development during its last meeting, allowing the project to come to a vote for a final decision in early January.

            Cordeiro explained the alterations made to the plan to effectively adhere to the Planning Board’s conditions. The majority of these changes involved proposed work that did not fall under Conservation Commission jurisdiction. The changes included updates to the existing sewer system on the site, additional landscaping to benefit abutters to the property, and the inclusion of building designs on the plans.

            Cordeiro’s business with the commission was primarily related to a waiver for stormwater calculations on the site. Commission members previously expressed their reluctance to approve the plans until Cordeiro received a required waiver from the Planning Board. Their apprehension was predicated on the possibility that, without the waiver from the Planning Board, Cordeiro would ultimately need to undertake a redesign of the plans in order to adhere to requested conditions.

            With Planning Board approval and all of the requested waivers granted, Cordeiro found himself in a stronger position to advocate for Conservation Commission approval of the plans. “We have continued this hearing for a while now. This project was filed last December,” said Conservation Agent Laurell Farinon. “Since he has provided sufficient information, that the project is in compliance with stormwater standards. My recommendation is to close the public hearing,” Farinon told commission members.

            A motion to approve the plans carried and Steen Realty will have the authority to begin work on the site, officially pending the approval of a draft decision from the Planning Board.

            The Conservation Commission moved to discuss a Notice of Resource Area Delineation filed by Ryan Young. Contention around the delineation has been steadily increasing as abutters to the proposed wetlands notified the commission that the area portrayed in the proposal did not coincide with their experience living in the area.

            Chris King of Atlantic Design Engineers, Inc., representing the resource area delineation, explained that a site visit took place on December 7 to allow Farinon and Amy Ball of Horsley Witten Group to walk the site lines and review the proposed wetlands delineation.

            King and the commission members agreed that the current flags delineating the wetlands area were accurate, but confusion remained relating to potential flooding areas and vernal pools. King sent a letter to the commission members on the day of the meeting in the hope of dispelling some of the concerns relating to those issues. Unfortunately, due to a lack of sufficient time to review the arguments put forth in the letter, the commission could not make comments on the issues it addressed.

            Conservation Commission Vice-Chairman Daniel Gagne recommended that the commission grant a partial approval of the wetlands delineation to allow King to begin the process of a formal Notice of Intent application, but several commission members expressed their reluctance to issue a partial approval. The commission decided that a continuation of the meeting was in everyone’s best interest in order to give all parties ample time to review topics put forth in the letter provided by King.

            The next Rochester Conservation Commission meeting is scheduled to be held remotely on January 19 at 7:00 pm.

Rochester Conservation Commission

By Matthew Donato

            Three public hearings were on the agenda for the Marion Conservation Commission at its December 9 Zoom meeting.

            In a 7:20 pm hearing, Carmine and Beth Martignetti filed a Notice of Intent to make shoreline site improvements, including removing a vertical stone/concrete seawall, expanding an existing coastal beach into an upland area, and reconstructing a stone jetty at 71 Moorings Road.

            Represented by engineer David Davignon of Schneider, Davignon, and Leone, Inc., Carmine Martignetti was also on the call.

            Identifying the southern portion as the crux of the filing, Davignon outlined three components. First is removing the seawall and cutting the grading down to extend the beach area in a half-moon shape by 850 square feet. The jetty will be rebuilt, 8 feet wide with a total length over 60 feet, an exercise that Davignon noted would also require federal permitting. The last component is the removal to the north side of the property of some invasive vegetation species.

            Davignon said, at 1 foot of depth, approximately 30 yards of sand will be brought in, all at a compatible grain size. Citing the potential for more shellfish, Davignon said he does not see any potential negative impact.

            The Conservation Commission members mostly questioned the groin’s reconstruction, the ridge that lies perpendicular to the coastline. “I think some of the erosion is because of the vertical wall that is there,” said Davignon, who plans to remove the existing vertical wall.

            Part of the project is approval for work already done. “I think I speak for the entire commission when I say that we were surprised to see that work had taken place,” said ConCom Chairman Shaun Walsh, alluding to the original NOI filed in 2004. “We really strive to make sure that folks are playing by the rules and that when people come before us, they haven’t already done the project.”

            No ConCom members remain from the date of that filing, nor was Davignon involved with the property at that time.

            Walsh says the work on the north side of the site may, in fact, be permittable, but he stressed that ConCom had been deprived of an opportunity to participate in the process. He asked Davignon to give his professional opinion on the potential there for erosion, but beforehand he gave his own opinion on the work already done without ConCom’s participation or approval.

            “When somebody goes down to a coastal site like this, they should know that that is an area subject to protection under the Wetlands Protection Act. And before they do the work, they should ask the property owner if they have the appropriate approval from the Conservation Commission to do the work, and that didn’t happen here. And it’s a little disappointing,” said Walsh.

            Davignon said he could not render an opinion, having not been a party to prior goings-on.

            Walsh said a Google map view or Google Earth would reveal “a well-vegetated area” significantly different from what the commission members encountered at their site visit. He concluded that the changes had to be somewhat recent.

            It was explained that the changes were motivated by the management of invasive species. Asked for their input, ConCom members concurred with Walsh’s observation. They expressed concern over the process that led to what they perceived as a lack of accountability on the part of the landscapers involved for not seeking out an order of conditions that would have been issued by the Conservation Commission. They were told that no herbicides were used in the removal of the vegetation.

            Asked to address the commission, Martignetti recalled a correspondence with the town and how he was told he would be able to build a wall. He decided against the wall and chose instead to build a beach. The work that went on, he said, was part of a larger effort. In his mind, he said, “We were making a significant improvement to the coastal bank…. That’s what caused us to go forward. We thought we were making a significant improvement. For the beach we are filing now, that’s our rationale,” he explained.

            Walsh said an invasive species removal is specific and not done in a wholesale manner. He suspects that not all that has apparently been removed could have all been invasive.

            Marion does not have a professional conservation agent, so Walsh said ConCom would seek feedback from the state’s wetlands circuit rider. Davignon asked to be kept in the loop in case his presence is requested on site.

            Per Marion’s remote-meeting policy, the public hearing was continued to December 23 at 7:20 pm.

            In a 7:00 pm hearing, the Town of Marion requested a Request for Determination of Applicability for a Department of Public Works project to complete maintenance work on two bio-retention basins at Island Wharf.

            Meghan Davis of the Marion DPW summarized the effort, including the removal of vegetation that would pave the way for the state Department of Environmental Management to come in and make new plantings in keeping with the ecological intent.

            Per Marion’s remote-meeting policy, the public hearing was continued to December 23 at 7:00 pm to allow proper time for public comment.

            In a 7:10 pm hearing, Tabor Academy presented a Request for Determination of Applicability in its plan to replace a deck on the east side of the Daggett House building at 275 Front Street.

            ConCom visited the site on December 5, and Walsh said the “existing deck is in rough shape, to say the least.”

            Reading from communication from Tabor Facilities Supervisor Donald Benoit, Walsh summarized the replacement plan of the steel deck and rotted-out posts with four footings on the same footprint, 88 feet from the seawall, with an all-wood frame and composite deck measuring 29 feet by 8 feet.

            Per Marion’s remote-meeting policy, the public hearing was continued to December 23 at 7:10 pm to allow proper time for public comment.

            ConCom voted to officially propose to the town a $2,950 level-funded budget for FY22.

            Finally, Walsh recognized former member Kristen Saint Don-Campbell, who recently resigned from her ConCom and Planning Board posts. He called her “a great human being” who will be missed.

            The next meeting of the Marion Conservation Commission is scheduled for December 23 at 7:00 pm.

Marion Conservation Commission

By Mick Colageo

            In order for the Marion Planning Board to authorize the division of a parcel of land on Oakdale Avenue into separate lots, the Zoning Board of Appeals will need to allow a lot line to be drawn without the equal frontage required by the town’s bylaws.

            “You can’t do that here because the houses were built before zoning. Equal frontage and equal area would put a lot line through a house,” said Attorney Robert L. Perry, who represented the Estate of Joan E. Botelho in Case 782, a continued public hearing before the ZBA on December 10.

            The hearing was continued to January 14 at 6:30 pm but not before a history lesson and lengthy discussion.

            As Perry explained, the owners of the homes at 61 and 63 Oakdale Avenue own property that Marion at some point in time began to consider as one lot and its residents as “tenants in common.” Botelho passed away and her lot sat vacant for a number of years, according to Perry. He is seeking a Special Permit to legally divide the lots so that the Botelho Estate can sell.

            As Building Commissioner/Zoning Enforcement Officer Scott Shippey explained, the Planning Board would grant an Approval Not Required (ANR) that, assuming the ZBA approves the non-conforming lot line, becomes a permanent record.

            “Basically, we cannot do a plan that will provide equal area and not have a serious hardship,” said Perry, who explained that the intent is to have Lot A owned solely by Denise Allard, and Lot B owned solely by the Botelho Estate. Allard has been paying the property taxes. Perry told the ZBA Botelho’s four children wish to sell their property, pay off the taxes owned, and move on.

            According to Perry’s research, two parcels were originally purchased separately in 1939 with an easement permitting the town to lay water lines to the two houses. Houses were built on the lots in 1943.

            “The family never treated them as one lot. Parcels 1 and 2 in the deed from (original owner) Sears and from Botelho,” explained Perry, whose research did not solve the mystery as to when, how, or why the town combined them. “We have no idea how the town came to treat them as one. I don’t know how it happened, but the family did not make it happen.”

            Further complicating the matter is Lot B sits off of the dead end of Oakdale Avenue that, according to Perry, is a road the town voted to take possession of sometime around 1955. Perry’s clients seek to clear that road at their own expense in order to further facilitate an expedient solution. “I didn’t expect the Town of Marion to incur costs to do this,” he said.

            Perry has spoken with the Department of Public Works and called the proposal “a glorified driveway” that he does not believe is before the ZBA’s judgment. The Conservation Commission sent a letter saying the case does not fall within its jurisdiction.

            “I think it’s a fine idea. The road goes to the south border of their second lot,” said abutter George Tinkham, 57 Oakdale Avenue, who explained that the town owns the road and “took an easement on our property to all four houses (in 1958)…. Nobody’s used it because just the two driveways. The road does extend up to the border of the second lot. It’s all public land in front of it [and] there wouldn’t be a problem clearing it.”

            Several agreed that two lots will generate more property tax revenue for the town than one, but ZBA Chairman Christina Frangos was concerned the board does not overlook some aspect of the case and create a problem with its decision.

            While ZBA member Ed Hoffer entertained the idea of a vote to approve with a contingency, which Perry preferred, Frangos said, “I would like to hear from the DPW to see where they stand on feasibility.” She would also like to hear from town counsel regarding precedence in Massachusetts, not just Marion.

            Shippey told Frangos he would email DPW Director Dave Willett to obtain the DPW’s stance in writing.

            Perry was beleaguered by the bylaw, and Frangos agreed, saying, “The bylaws give very little guidance.”

            “We’re trying to clean it up. It’s baby steps,” said Shippey, who serves on the Bylaw Codification Subcommittee.

            In other matters, Heron Cove developer Ken Steen requested a continuance to his proposed 40B housing project to January 28, 2021, with the modification of 24 additional units. Mark Bobrowski, Steen’s attorney, sent the ZBA a letter the day before the meeting with the request.

            Marion’s Board of Selectmen had endorsed the prior 96-unit version of the project, so it will need to return to the selectmen’s agenda. Bobrowski said he already generated the abutters list and spoke the day of the meeting with Town Counsel Jon Witten.

            Citing that “40Bs are controversial, generally,” Bobrowski stressed that he intends to take all proper steps to avoid any oversights. “I’m optimistic the Board of Selectmen will support it; I don’t know. The [Massachusetts Department of Housing and Community Development] will support it,” he said.

            Frangos requested two weeks’ notice for any future continuance requests so that the applicants for public hearings scheduled later the same evening would not face undue delays.

            Before the meeting ended, the ZBA voted to change its public hearing schedule to one public hearing every two minutes rather than every 15.

            In Case 781, Kevin Walsh, the owner of property he bought June 30 at 12 Richardson Road, received a Special Permit to complete renovation of a nonconforming deck.

            Hudson Plumb, a direct abutter to Walsh’s property, said that Walsh had been at it for six months and has done substantial work that Plumb called “greatly improved.”

            Members Jim Ryba, Margie Baldwin, and Cynthia Callow have all gotten a look and complimented Walsh as well.

            Callow, an alternate board member without voting privileges when a quorum is present, expressed interest in joining the ZBA as a full voting member.

            The ZBA also voted to accept the withdrawal of Katrina Trull’s request.

            Finally, the board discussed a new Procedurals Manual from KP Law so that all members can strengthen their knowledge and equip themselves to preside if necessary.

            “The goal is really to help us,” said Frangos, who would like to receive feedback from the membership prior to the ZBA’s January 14 meeting in order to finalize a version for a vote. Frangos told the board she wants to require 80 percent attendance of the ZBA’s members, citing a fall meeting in which the board fell short of a quorum, and said she hopes the Board of Selectmen supports the proposed rule.

            Member Will Tifft noted that Zoom meetings reduce scheduling conflicts. Openly hoping for a March 2021 return to in-person meetings, Frangos said she hopes that meetings remain accessible via Zoom. Hoffer called March “too optimistic” for a full reopening, and while he anticipates COVID-19 immunizations for police and fire personnel, Hoffer said expects “the rest of us” to be waiting our turn.

            The next meeting of the Marion ZBA is scheduled for January 14.

Marion Zoning Board of Appeals

By Mick Colageo

            The Marion Board of Health says it still supports the hybrid model of learning part-time in-school and part-time remotely in the Tri-Town despite a statewide surge in COVID-19. On December 15, the board voted to send a letter supporting the continuation of hybrid learning at Old Rochester Regional.            At the request of the superintendent of schools, the board will send a letter similar to one the board sent back in August in support of instituting a hybrid learning model, which, said Board of Health Chairman Edward Hoffer, “in general, seems to be working.”

            According to Hoffer, “Virtually all [positive COVID-19 cases involving students] were not contracted at the school but were elsewhere.” He referenced a “fascinating” Center for Disease Control memorandum he read that day. Of the positive pediatric COVID-19 cases, he said, “They found, again, that in the vast majority of cases, they did not contract their infection at school but … at parties, at playgroups, almost everything but school. It really does look like having kids at school is not dangerous.”

            Board of Health member Dot Brown said that, during recent visits to Sippican School at the end of the school day, she observed the children behaving in full compliance with facemasks and maintaining social distancing. “Their parents are not,” she noted.

            At the time of the meeting on Tuesday, Sippican School has had a total of eight positive cases since the start of the pandemic. Public Nurse Lori Desmarais reported that there are currently six Sippican School students in quarantine and zero current confirmed cases in isolation.

            At ORR, as of 4:00 pm on Tuesday, the high school has 24 students in quarantine with seven confirmed cases in isolation, and 10 in quarantine from the junior high with six confirmed cases in isolation.

            In Marion, the year-to-date total of positive cases is 159, with 45 active cases in town.

            Desmarais reported that presently there are three active cases stemming from Sippican Healthcare Center. A total of 112 confirmed cases have recovered from the virus, and another 127 people have tested negative for COVID-19.

            It has been eight days without a single report of any new positive cases at the nursing home.

            “They seem as if they’ve gotten their cluster — the outbreak that they had there under control,” Desmarais said, adding that the Department of Public Health has been a regular presence there. She noted that the DPH would continue to monitor the situation there and provide the town updates.

            Desmarais announced that she still has a couple of high-dose flu vaccinations and some regular-dose flu vaccines available. Anyone wishing to receive one may make an appointment by calling 508-748-3530.

            Health Agent David Flaherty told the board that he has responded to several complaints about out-of-town visitors failing to quarantine as directed by the DPH or not using facemasks in public. One complaint was based out of an apartment complex, and Flaherty said he spoke with the management, which Flaherty said did follow up on the complaint and resolved it.

            Overall, Flaherty said, he is satisfied with the results of his COVID-compliance inspections with about 40 Marion businesses over the last two weeks. An additional 10 he did over the phone.

            “Almost all our businesses are doing great, and they’re really behind us 100 percent,” Flaherty said. The same goes for the patrons of those establishments, too. “A couple [of establishments] need a little hand-holding,” he added, but he said he would follow-up with them this week and after as needed.

            The next meeting of the Marion Board of Health will be held on Tuesday, January 5, at 4:00 pm.

Marion Board of Health

By Jean Perry