After a brief holiday hiatus, the Marion Conservation Commission tackled a full agenda on January 9, including the sticky issue of a conservation restriction (CR) violation at The Cove.

Vice Chairman Shaun Walsh summarized the prior meeting’s discussion during which the commission gave residents of The Cove time to think about the violation of the Conservation Restriction that the town holds on the open land portion of the property.

The restriction, granted in 1998 during the permit phase of the development, was part of the requirement to restrict a portion of the premises in order to develop the parcel under the Cluster Residential Housing section of the zoning bylaws. At issue is a fence, which The Cove placed along the boundary of the CR in September 2018, apparently to replace vegetation that had been destroyed in a storm.

Walsh stated that he believed the placement of the fence was in clear violation of the CR, and while he appeared to voice some understanding as to The Cove’s motivation for erecting the fence, he said, “[The] commission is charged with protecting the CR, and should not ignore it – [this would] set a dangerous precedent.”

He added that he would like to hear proposals from The Cove for rectifying the issue, noting that the commission had been told the fence was erected to shield houses from the lights of oncoming cars and unsightly automobiles stored on the adjacent property.

“Vegetation used to provide this function,” said Walsh. “[Is there an] alternative to the fence more in keeping with the purposes of the CR?”

Kathy Reed, a member of the Board at The Cove, questioned the commission on the exact violation.

“[T]he Open Land shall be retained predominantly in its natural, scenic, open space condition, for conservation of wildlife habitat and recreational purposes, and for the protection of natural habitat and environmental systems,” Walsh replied, citing the language in the CR. He went on to quote the CR at length, notably in the prohibited acts section: “The construction or placement of … temporary or permanent structure on, above, or under the Premises.”

Reed responded that it was a tough situation, having lost “sixty-percent of the vegetation” during a storm, and that headlights and unregistered cars had been an issue.

Commission member Cynthia Callow suggested The Cove replant trees and take the fence down, while Walsh clarified that there was no way to leave the fence in place and the commission was looking for The Cove to pursue a natural way to achieve the same goal.

Reed suggested that this was a subjective opinion of the commission and that The Cove had taken into consideration the natural scenic beauty of the site, keeping the fence the same size and structure as other fences on the property. Reed also observed that the fence was very expensive, to which Walsh replied, “I hate to sound unsympathetic, but the cost of [abiding by] the CR is not the issue.”

Chairman Jeff Doubrava informed Reed that the CR is attached to everyone’s deed within The Cove. Walsh suggested that Reed may consider speaking with The Cove’s legal counsel as they develop a proposal for the commission; however, he said, “In my opinion, keeping that fence in that location is not an option.”

Doubrava added that Reed might also look into the exact location of the fence, and determine if by moving it slightly, it would be off the CR. Reed said she would consult with other members of the Board and return to the commission in the coming month.

Also during the meeting, David Davignon, of N. Douglas Schneider & Associates presented to the commission three Notices of intent, all of which were continued two weeks, pending more information from the U.S. Army Corps of Engineers.

The first NOI was for the construction of a residential pier facility into the waterway of Wings Cove, on behalf of E. Byron Hensley Jr. located at 95 Holly Road. A boardwalk had been approved by a prior owner, and Davignon referred to this project as a re-permitting of a prior project. This four-foot wide elevated board walk would be shifted to the north of where it had been originally proposed, to access deeper water. It will begin at an existing deck off the house, slope down to the water, crossing 265 feet of bordering vegetated wetland and saltmarsh. It will connect with a 101-foot pier, 20-foot gangway, and float. Davignon noted that he was unclear where the transition from freshwater wetland to saltmarsh occurred because of the presence of thick phragmites growth. Doubrava remarked that while on the commission’s site visit, they noticed that the phragmites had been clear-cut and branches trimmed, information that clearly surprised Davignon. The applicant has applied to the Army Corps and also to the Massachusetts Department of Environmental Protection for a waterways license and received comments from the Massachusetts Division of Marine Fisheries with some suggestions. Davignon also stated that the harbormaster had verbally noted that he did not have a problem with the proposal. Portions of the boardwalk would be 5 feet above the marsh, which would provide the required public access across the marsh.

The second NOI Davignon presented was downstream from the prior applicant, located at 51 Holly Road, and owned by Paul and Christine Driscoll. This proposed boardwalk would be 145 feet long following a historic path to the water. The boardwalk will be 3 feet and then widen to 4 feet across the water to a gangway and float. The application includes cutting phragmites. Driscoll commented to the board that he had inadvertently cut the invasive vegetation when he first purchased the property prior to learning that he needed a permit. The applicant will provide stairs on either side of the pier to provide public access over the pier to cross the marsh.

Lastly, the Weweantic Realty Trust filed a NOI application to repair an existing pier at 312 Delano Road. The pier structure is supported with existing boulders and corroded steel pilings. Davignon proposed driving two sets of piles on the outside of the pier and to remove the steel pilings. He also proposed upgrading the planking on the deck of the pier in the same footprint of the current pier, and proposed no change to the ramp or float. No public access is required because this is an old pier and the work is considered “minor project modification”. The applicant did request a widening of the access to the pier to accommodate the removal of the float onto the lawn area in the winter.

In other business, the commission extended the permit at 122 Register Road for three years to finalize any work not completed at the site and they issued a Certificate of Compliance for 41 Dexter Road.

The next meeting of the Marion Conservation Commission is scheduled for January 23 at 7:00 pm in the Marion Town House.

Marion Conservation Commission

By Sarah French Storer

The developer of a proposed solar farm has filed a lawsuit against the Marion Planning Board for what it considers an “improper denial.”

Solar developer ZPT Energy Solutions LLC filed a complaint with the Land Court on December 28 after the Planning Board denied the special permit request to construct a 21+-acre solar farm at 78 Wareham Street. ZPT is asking that the Court overturn the Planning Board’s decision and order the board to grant the special permit, alleging that the board’s interpretation of its own bylaw unreasonably restricts solar energy projects.

Within the denial decision finalized on December 10, the board classified the clearing of about 18 acres of forest “large-scale” clear cutting. ZPT’s argument was that the Town’s solar bylaw failed to define “large-scale,” and that the clear-cutting of roughly 86 percent of the proposed solar array field site was not large-scale.

The vote to adopt the language was 5-2, with board members Eileen Marum and Chris Collings dissenting, while also lamenting the denial of the special permit.

“There’s no way to quantify ‘large-scale,’” Marum argued. “We don’t have anything that quantifies that.”

Despite their dissenting votes, Marum and Collings have both been named as defendants in the complaint that includes the individual members as well as the Planning Board as a whole.

As of press time on January 15, the counsel for the Marion Planning Board had yet to file a response to the complaint with the Land Court.

By Jean Perry

The Marion Board of Selectmen on January 15 endured the grunt work of preparing the numbers for a slew of proposed large-scale capital improvement projects to bring before the Capital Improvement Planning Committee on Thursday night ahead of Town Meeting.

Representatives from CDM Smith, the Town’s engineering firm that holds the contract for designing and overseeing all of these items pertaining to road infrastructure and wastewater treatment, guided the board through the minutia of projected and revised details and cost totals, all while the board contemplated breaking down some of the phases of work into smaller “bite-sized” jobs – in other words, work the Town could prioritize and still afford to fund.

We have a lot of these projects pending,” said Selectman Jon Waterman. “As we talk about dollar amounts, we also have to discuss ways of paying for them,” whether it be through an override, included in the budget, or some other financing plan.

Topping the agenda for the special phone conference call were Phase 1b and Phase 4 of the Village Capital Improvement Plan, which includes drainage, sidewalk repairs, and roadwork.

Chapter 90 funds from the state totaling $1 million will fund the $65,000 Pavement Improvement Plan and the $200,000-$300,000 Creek Road reconstruction, allocations that won’t require Town Meeting approval, but that money is expected to dwindle faster than it can be restored.

Waterman remained true to his desire to somehow move Phase 4 ahead in the schedule, but now instead of putting it before Phase 1b, Waterman wonders if some aspects of the two phases can run simultaneously in order to take advantage of the Commonwealth’s $400,000 Complete Street grant to help cover the cost of aspects of Phase 4, an opportunity that only allows one year for completion.

“That is something that we don’t want to lose,” Waterman said. But what concerns him, he said, is the state of the village sidewalks in comparison to the sidewalks on Spring Street, pitting Phase 1b against Phase 4, respectively.

“Simultaneous might be too much for us to take on and too much disruption in the village,” said Waterman. And with a price tag of $5 million, “That’s probably not gonna happen,” Selectmen Chairman Norm Hills told him.

But as Finance Director Judy Mooney pointed out, the cost of the $5 million projects should be broken up.

“Because you’ve got sewer in it, you’ve got roads in it, and possibly water,” said Mooney. “You can’t lump it all into a $5 million project because some of it’s going to affect the sewer rates; some of them are going to affect the tax rates …

“You need to delve into the numbers because when we first started talking about this,” Mooney continued, “some of it came out of … [grants], but then we also had to separate it out,” putting expenses into their proper departments – sewer, water, and the balance that would come out of tax revenue.

But, clearly, as Mooney pointed out, a debt exclusion will be likely, which requires Town Meeting approval and a subsequent ballot question vote.

“How hard is this to re-look at it … and see if we can juggle some of the parts of this project?” asked Hills.

“If the priority is just that (sidewalk) section of Front Street from Main to the Music Hall, then you could potentially pull that out,” said CDM’s Mike Guidice, just before Hills conceded that the group likely would not solve the entire equation during the phone call. Still, as Hills put it, the “driving force” behind the phone conference is the Thursday meeting during which Dawson will present the request to the Capital Improvement Planning Committee.

The board considered that the Town wouldn’t have to complete all the projects in Phase 1b, but instead add certain parts to Phase 4. “Meanwhile,” Hills wondered, “how do we make these bite-sized?”

“Phase 4 is but a name,” Dawson said. “What’s going to be important is how you’re going to take it to Town Meeting.”

But that is a matter for next year, as the board won’t have to ask Town Meeting for millions of dollars until next year when construction would begin. This year, Town Meeting will be asked to fund the remaining engineering, like the $457,000 design engineering for Phase 4.

As for the wastewater treatment plant upgrades and lining of lagoon 1, CDM presented the board with some significant shortfalls in the financing of the project to the tune of $1,135,000.

According to CDM Smith, the lagoon lining contract is out for bid, but the engineering firm is concerned about changes in budget estimates, including those for the miscellaneous treatment plant upgrades slated for this year and already approved by Town Meeting. Once bids close on January 31, the board should have a better understanding of the ultimate cost of the project.

CDM Smith also estimates another $80,000 for support and litigation, as the Town is still the defendant in an ongoing lawsuit launched by the Buzzards Bay Coalition related to groundwater pollution from the wastewater treatment plant.

In conclusion, the board understands that next year Town Meeting voters will likely be asked to approve roughly $3 million for the aforementioned phases of the infrastructure plan.

“We don’t want to go to the voters at Town Meeting looking for $3 million all at once,” said Dawson, who is retiring in two months. There must be a way to make those numbers seem less daunting, he suggested to CDM Smith.

The next regular meeting of the Marion Board of Selectmen is scheduled for January 22 at 7:00 pm at the Marion Town House.

Marion Board of Selectmen

By Jean Perry