A site visit on Monday, February 3, to a construction project at the edge of designated wetlands resulted in the domination of new business at the meeting of the Rochester Conservation Commission on Tuesday, February 4, at Town Hall.

            Environmental Planner/Conservation Agent Laurell J. Farinon presented the commission with a report on her findings a day after visiting the site, a wooded area at 45 Kings Highway, from which it was determined that Jacobs Engineering acted in violation of the Mass Wetlands Protection Act (Massachusetts General Laws Chapter 131, Section 40).

            The construction firm contracted by the Massachusetts Bay Transit Authority (MBTA) was ruled to have overextended its rights and failed to consult with or seek approval from the Conservation Commission before clearing areas in a buffer zone up against wetlands. 

            “What I found was earth working grading up to area of wetlands,” explained Farinon, who had spoken to Chairman Michael Conway and gained permission to bring it up in Tuesday’s meeting as new business. “This came up (Monday) … it’s timely and it needed to be addressed.”

            Farinon could have signed an enforcement order that Conway would present at the commission’s next meeting on February 18, but the matter was considered too urgent to delay so it now has the entire commission’s signatures. Farinon took photographs at the site and presented them to members of the commission at Tuesday night’s meeting.

            On Tuesday afternoon, Farinon met with two representatives of the MBTA, Kyle Purdy, senior scientist, and Peter Cruz, project manager, who represented Jacobs Engineering at the Commission meeting. Cruz described the area as Jacobs Engineering found it.

            The commission ordered an immediate cease-and-desist to the permitted contractor and all others from any activity affecting the 100-foot buffer zone and/or resource areas.

            At the site on Monday afternoon, Farinon had issued a verbal cease-and-desist, shutting down the project so the contractor was not allowed to remove its equipment from the site. This was deleted from the written order. It was Farinon’s understanding that the cease-and-desist was being followed.

            The order presented at Tuesday night’s meeting included the stipulation that all resource areas shall be returned to their original condition, and a restoration plan shall be filed on or before February 28, 2020 that shows restoration of the 25-foot, no-disturb zone. In addition to further stipulations, no further work shall be allowed without a public hearing.

            Vice Chairman Daniel Gagne itemized requirements for Jacobs Engineering as a starting point to repair the situation.

            Addressing the commission along with Purdy and Cruz, Farinon expressed her disappointment at the situation, noting the effort that the commission makes to work with projects. She added that Jacobs’ representatives were apologetic.

            “We should have provided a courtesy notification of the additional work that was occurring in addition to the RDA from July,” said Purdy.

            “But that’s not a courtesy,” countered Farinon.

            Gagne added, “It’s not a, ‘Oops, we forgot to notify you,’ you forgot to file an application with us for us to review and see if you had permission to do this.”

            Purdy answered, “Yes, correct,” in agreement of the mistake. Purdy indicated that before organizing a revised plan, Jacobs Engineering will need to consult with the MBTA.

            Farinon acknowledged that the MBTA may have zoning rights not shared by others, but the MBTA is still subject to wetlands laws.

            Acknowledging Jacobs Engineering’s needs for space to accommodate the MBTA’s construction equipment, Farinon told Purdy and Cruz, “It’s going to be really important for you to deal with both of those issues.”

            The commission passed a motion to issue the enforcement order as amended along with the aforementioned stipulations of immediate acts to repair unauthorized activities, and Jacobs Engineering will be subject to ticketing at least until the next meeting of the commission on Feb 18.

            “What we did tonight, do an enforcement order with some ticketing, is the most we could do,” said Farinon after the meeting’s adjournment. 

            In other matters, the commission decided against a Chapter 61A Right of First Refusal Request in regards to Morse Brothers Inc. project at Gerrish Road.

            Continuances to the February 18 meeting for public hearings were granted for Pedro Rodriguez of Solar MA Project Management and to Steen Realty & Development Corporation.

Rochester Conservation Commission

By Mick Colageo

Rochester Zoning Board of Appeals Chairman David Arancio on January 30 presented his fellow ZBA members with a summary from a recent conversation he had with Town Counsel Blair Bailey about granting variances.

            The point, Arancio said, was to clarify exactly what a variance is “and how we really need to look at a variance going forward and what our obligations under the law are with that.”

            Right away, ZBA member Don Spirlet said he did not agree with all the points that Bailey offered.

            Reading from the memorandum, “It is important to note… variances should be sparingly granted,” said Spirlet.

            “Correct,” said ZBA member Richard Cutler.

            “So, we should be denying most variances?” said Spirlet. “Is that what we’re saying?”

            Providing his interpretation, Arancio said: “I think that the applicant needs to do their due diligence to make sure that the three criteria [for a variance] are well explained… It has to be laid out very well. We shouldn’t be pulling it out of the applicant to get us to the finish line.”

            For a variance, the applicant must prove that the topography or some physical aspect of the property would prevent the construction from adhering to the zoning bylaw requirements, that there would be a hardship without the variance, and that the construction would produce no detriment to the public good.

            This discussion continued: “We don’t necessarily have to grant a variance, and we sometimes shouldn’t,” said Cutler. “Just because (the applicants) feel like they have a problem doesn’t mean that we always have to relieve it.”

            “But if the applicant satisfies all the criteria,” said ZBA member Kirby Gilmore, “whether or not we grant a variance shouldn’t be [based on] whether we are granting too many or not granting enough. It depends on the conversation we have amongst ourselves once we close the public portion of the hearing.”

            Arancio said the information was simply a result of the conversation he had with Bailey, and that the purpose of the board’s discussion that night was to ensure a full understanding of the nature of variances, as well as how the courts look at variances and the factors involved when a variance is appealed.

            “[We are] making sure that we are well informed and educated,” said Arancio. “It’s more or less of a refresher – everybody on the same page – everybody knows it so we’re not guessing or looking at it that way.”

            “I just don’t agree that we should be granting the variances sparingly,” Spirlet said. “If we’re looking at ten variances and they’re all well-documented and they satisfy the three criteria, why shouldn’t we grant them?”

            Cutler felt that Spirlet appeared to be “oversimplifying” things.

            “There may be other things that the applicant could do,” said Cutler, “or there may be some of the neighbors who don’t particularly care for it.”

            When it comes to abutters, Spirlet said, “To me, the public – and especially abutters – get two bites out of the apple.” (They may voice their concerns at the public meeting or appeal the variance after it is granted.) “If they don’t do either one of those, why would we… assume that just so we can just deny it?”

            Arancio suggested inviting Bailey to the next ZBA meeting to address the board members’ lingering concerns and questions.

            “I wanted to make sure that we were 100 percent on the same page,” said Arancio.

            Cutler pointed to the original intent of the zoning bylaws and also mentioned how, in Rochester, the lots tend to be on the larger side so it is “easy enough to grant more variances.”

            That being said, Cutler commented, “What’s the intent of the bylaw, and the bylaw is to try to keep things spread out.”

            Gilmore said he welcomes further clarification from Bailey, whose job, Gilmore said, is “to guide us in the right direction.”

            Arancio said he simply wished to foster clear and open communication amongst the board.

            Meanwhile, the representative present on behalf of applicant Jonathan Crowell, 694 Snipatuit Road, witnessed the discussion just before presenting the board with an application for a variance to install an interconnected, ground-mounted solar array system less than 40 feet from the rear property line.

            The board ultimately denied the variance in a 4-1 vote (Spirlet voted in favor) because three of the panels could potentially be relocated to remain within the 40-foot required setback, which could still provide Crowell with the energy input he needs to power his single-family residence.

            The next meeting of the Rochester Zoning Board of Appeals is scheduled for February 13 at 7:15 pm at the Rochester Town Hall.

Rochester Zoning Board of Appeals

By Jean Perry