Written by Sean Bergen
Tammey and I, unbeknownst to either of us, independently produced summaries of the bConservation Commission meeting held last night. Rather than try to combine the two, we thought simply providing both would provide a good overall perspective of the meeting…as well as getting the information out
without further delay.
For those who weren’t there or, like myself, haven’t been to a Conservation Commission (CC) meeting before, here are my observations from the meeting. Please forgive any factual inaccuracies, the following is my layman’s understanding of what I heard…
The CC was clearly aware of the community interest in these projects as they juggled the agenda items a bit to be sure that the 40B related discussions did not start before the scheduled time of 8:15. When the Rolling Green (RG) item came up, and before the actual public hearing began, there was a very interesting discussion between the Commission members and the representative for the project. Some background data:
- The purpose of Rolling Green coming before the CC was to establish the exact boundaries of the wetland areas on the site…to get an Abbreviated Notice of Resource Area Delineation or ANRAD. This is required in order to determine where the buildings and other features can legally be located.
- When this type of measurement is requested by an applicant, there is a fee, specified in the town bylaws, that is charged based on the length of the boundary being determined ($2.00/linear foot). Since this is a rather large property with a long wetland boundary, the fee is significant (in excess of $18,000). [Side note: It was mentioned that this fee is waived for the first 250 ft so residents are not generally burdened by it...it is meant more for large/commercial properties. There is apparently also a maximum of $200 for single-family homes. Google is my friend.]
- This fee has not been paid to the CC.
- There are two sets of laws governing wetland boundary rules. The Massachusetts Wetlands Protection Act (WPA), and the town bylaws. The town bylaws are generally more restrictive.
- Because this project is a 40B project, local laws can essentially be ignored. In fact, all permitting authority relevant to this topic goes to the Zoning Board. This means that the CC really has no jurisdiction on this project other than to advise the Zoning Board. [Correction: It was pointed out to me that this is not strictly true. The bylaws will still be considered, but the Zoning Board will be acting on behalf of the CC, with input from the CC.]
So the pre-public-hearing-discussion was based around this fee. (I want to note that this discussion took just as long if not longer than the actual public hearing.) Some CC members believed that the matter should not even be considered as the fee hadn’t been paid. As I understand it, the RG rep [attorney Mark Johnson, representing Cormier] argued essentially this: The application was made only under the WPA. Since the fee is a bylaw fee, it does not apply and the RG developers don’t have to pay it. Now, presumably
they are making the application under only the WPA and not the bylaws because they are working on a 40B project, so the bylaws don’t apply.
However the RG rep seemed to go out of his way to indicate that whether or not the project is a 40B, the applicant can choose to file under only the WPA and cannot be forced to apply under the bylaws. Essentially, I think he was saying that they were simply looking for a boundary definition under the WPA and that was all there was to it. (So, to put it bluntly as I understand what he was saying (and I could be wrong)…if I just felt like walking in one day and requesting an ANRAD under only the WPA to decorate my wall with, they can’t force me to make the application under the bylaws, and so they cannot charge me that particular fee. The resulting ANRAD wouldn’t be of any use to me if I needed to request a variance to the bylaws from the CC, but they won’t have to since the bylaws don’t apply to them. [Again, not sure if this is strictly true, but that seems to be what they were saying.])
Clearly some members of the CC took exception to this. There were counter-arguments saying that the ANRAD application did not specify 40B, there was no letter of intent even indicating that there was any project at all, etc. One member also made the point that they could not proceed since it was not clear what, exactly, the role of the CC was in this case
(presumably since it wasn’t clear what set of laws they should be following or what their jurisdiction was?). In the end, it was decided to table the matter until guidance could be obtained from the town counsel and to move the meeting forward to the public hearing. The point was also made that since the Zoning Board would be looking to the CC for guidance, as a practical matter it made sense to move forward so that they could properly
advise them (or something to that effect).
The public hearing then started. Another RG representative [Maureen Henley, a wetlands consultant representing Cormier] handed out a site map containing the wetland boundaries. Apparently she, along with one or more CC members, spent 6 hours at the site last weekend and determined the boundaries indicated in the handouts. Some of the discussions were:
- There was some discussion of the definition of a pond and the classification of various parts of the site and the bordering wetland areas and how this related to the drainage properties of the site, the boundary of the wetland, etc.
- There were apparently some parts of the site and/or the surrounding wetlands that either were not examined or were not accessible at the time of the visit. [An area near the highway wasn't covered because it wasn't easily accessible due to a chain link fence.]
- There was a brief discussion of which FEMA maps are being used, the 1989 versions or the more recently published versions. (I believe these are the federal maps used to determine flood plane areas etc?) The CC believed that the 1989 maps are still the appropriate maps to be using since the newer ones haven’t been approved for use yet (??? not sure who determines this or even if I understood this correctly).
- There was an interesting exchange where several CC members asked about drainage pipes which were observed on the site. Maureen made a comment to the effect that Windsor Green was “dumping water on our property”, but thenalso said later that she was unaware of any pipes.
- A site visit was scheduled for the CC for Tuesday morning (11/22) at 8:00am. (I am fairly sure that is the correct date/time, but would need confirmation.) It was not indicated if this visit was open to the public.
- When the hearing was opened for comments/questions from the public, one audience member commented that he witnessed heavy flooding during one of the recent storms where the two ponds on the site were essentially connected by flowing water. The CC was very interested in this and requested that any documentation, such as photographs, be submitted.
That is all I can remember for now. I hope this was helpful.
Tammey’s summary (reprinted with her permission):
Here’s what I hope is a thorough yet understandable basic interpretation of the Conservation Commission hearing:
Last night Ray Cormier and his attorney Mark Johnson came before the Conservation Commission (“ConCom”). They were looking for an official decision regarding the location of all the protected resource areas on the Rolling Green property. The decision they seek has a long name but is referred to as an ANRAD. The final decision will be made by the Town’s Conservation Commission on behalf of the Mass Department of Environmental
Protection with the help of an environmental consultant(s).
The state laws about this are collectively called the Wetlands Protection Act (“WPA”). Like most towns, in Andover we have *stricter*laws established by the Town’s By-laws that cover the same issues. Our by-laws also include administrative provisions, one of which is that the Conservation Commission shall receive a fee for ANRADs. In this case the fee is $18,000.00.
Cormier has not paid the fee and his Atty Mark Johnson says they do not intend to pay it. Johnson told the ConCom he is ONLY looking for the boundaries and wetlands information related to the state law and is not following or wishing to receive any information regarding the local by-laws. Because of that he claims that the Town’s requirement that Cormier pay a fee for this service does not pertain. They’re not paying it. And once again, they continued to say they didn’t want any references to resource areas protected by the local by-laws. They only wanted to know about the resource areas protected by the state laws. Johnson also emphasized that this hearing is not in reference to any specific project, and not any 40b project. Johnson directed the ConCom not to consider 40b at all with regard to this issue. It was perplexing, odd, frustrating and rather ridiculous, really.
There was no lawyer in the room so the Board wasn’t sure if they should even “open” the hearing. The Board contemplated consulting the Town’s attorney Tom Urbulis to determine if Cormier can really insist the ConCom ignore local bylaws and if they can, in turn avoid paying the fee (which is required by the by-law, not the the state WPA). After debating this for an hour they decided they would open the hearing and listen to their wetlands consultant’s spiel. Johnson’s team seemed to be hoping the ConCom would just accept their consultant’s determinations and rubber-stamp her findings.
Instead, the hearing was continued until 12/15. The ConCom will have another site visit next Tuesday morning at 8am. I’m not sure if the public is welcome to attend but my assumption is we should be. There was some discussion about hiring a Peer Reviewer. The consultant seemed to believe that just because she spent 6 hours on the project and her findings are The Truth, there is no reason for the ConCom to get a second opinion. Since the $18k fee would normally go toward paying for a Peer Review, the ConCom may be wondering where those funds might come from. They did not agree to have a peer review but may decide to hire one after they look at the site again on Tuesday.
According to the Director of Conservation and the wetlands consultant, new site plans have been prepared for the 40b project, which comes before the Zoning Board at 7pm tonight. They have eliminated the commercial building and reworked the site as the ZBA chairman asked them to do.