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Con Comm wetlands law in line with state standards

Revision clarifies definitions, gives town some wiggle room

GREENFIELD — The town’s Conservation Commission chairman says when his board rewrote town wetland laws, its intention was to strengthen them, mostly through clarifications, reorganization and clearer definitions.

“The state’s Wetlands Protection Act is stringent, but it also gives towns and cities the ability to establish their own ordinances, as long as they are as or more stringent than the state’s,” said Alex Haro, chairman of the five-member commission that spent the last 2 1/ 2 years rewriting the local wetlands law.

Haro said that while the commission feels it wrote a good ordinance that will protect the town’s wetlands, it also gave the town a little latitude to be able to look at each project, as presented, on an individual basis.

“We are here to protect the wetlands,” said Haro. “We didn’t make what we already had a whole lot more stringent, but we tried to clarify things so that people know what they need to do.”

For instance, the commission has added in its rewrite a clarification that no one can remove, fill, dredge, build upon, degrade, discharge into or alter anything within 100 feet of a resource area, which is defined as any freshwater wetlands, marshes, wet meadows, bogs, swamps, vernal pools, springs, banks, reservoirs, lakes, ponds, beaches and lands under water, as well as rivers, brooks and creeks.

The commission kept in the minimum 25-foot “No Disturb Zone,” but in its rewrite explains that there are exemptions, including utility rights-of-way, emergency activities, any work with “limited project status” by the town, and activities currently exempted by the state.

Haro said the commission changed a couple of “mays” to “shalls” in its rewrite, but that the changes aren’t significant. He said there weren’t many instances, because the commission thought it may need a little leeway when considering some projects.

For instance, the commission left itself some wiggle room by writing, “The commission may establish, in its regulations, design specifications, performance standards, and other measures and safeguards, including setbacks, no-disturb areas, no-build areas, and other work limits for protection of such lands, including without limitation strips of continuous, undisturbed vegetation cover...” but then added, “...unless the applicant convinces the commission that the area or part of it may be disturbed without harm to the values protected by the ordinance.”

When it came to the commission’s rewrite of the replication of wetlands, it appears the commission may have relaxed its requirements a bit.

In the current bylaw, “The commission shall not consider replication of wetlands adequate mitigation for the destruction of resource areas. Alteration of wetlands requiring replication shall be permitted only where the landowner will be deprived of substantially all economic use of the property, there are no reasonable alternatives, and the wetland area to be lost is minimized to the greatest extent possible.”

In the commission’s latest proposal, it says “To prevent resource area loss, the commission shall require applicants to avoid or minimize alteration wherever feasible; and, where alteration is unavoidable and has been minimized, to provide full mitigation. The commission may require replication of wetlands as a form of mitigation, but only with specific plans, professional design, proper safeguards, adequate security, and professional monitoring and reporting to assure success, because of the high likelihood of failure of replication.”

Some have argued that it leaves too much to interpretation.

Haro said the commission based its rewrite on the Massachusetts Association of Conservation Commissions’ model wetlands protection ordinance and said he feels comfortable with the commission’s rewrite.

The current wetlands ordinance was adopted by Town Council in 2001 and amended with a waiver provision added in 2008.

Some residents and town councilors, including Town Council President Mark Wisnewski, would like to see the waiver removed, so that provision, which was kept intact by the commission in its latest revision, may become a bone of contention as the full council reviews the commission’s work.

Recently, anti-big box consultant Albert Norman submitted to the Town Council his own proposed rewrite of the ordinance, red-lining numerous sentences and paragraphs and eliminating the waiver.

Norman, a Greenfield resident, is known nationally as a “sprawlbuster,” a term he coined himself, and currently represents abutters suing the town over its approval of a big box store for French King Highway.

The council has yet to hold a public hearing on the matter and its members have said Norman’s rewrite, which a committee reviewed at a recent meeting, will be considered with everyone else’s suggestions when that time comes.

Norman didn’t suggest undoing the commission’s proposed changes, except to eliminate the waiver, but instead suggested more substantive changes in the current law and commission rewrite; changes that would more directly affect potential big box projects.

In a recent interview, Norman said that his interest in the town’s wetlands law is to protect against “big box retail development.”

Waiver

One of Norman’s suggestions is to remove the waiver power granted to the Conservation Commission by Town Council in 2008. During the commission’s review of the big box project on French King Highway, former Mayor Christine Forgey and Marlene Morrocco, her economic development director, asked for the waiver.

That rule allows the commission to “waive specifically identified and requested procedures, design specifications, performance standards, or other requirements set forth in its regulations...”

Opponents of the big box project, including Norman, have said all along that the waiver removes obstacles for big box developers.

According to the waiver itself, it should be used to accommodate an “overriding public interest or to avoid a decision that so restricts the use of the property as to constitute an unconstitutional taking without compensation.”

Norman said he fears that the waiver leaves the door open to the current or a future commission allowing a big box project it considers to be an “overriding public interest” and said he personally would consider a sewer line or public safety issue an overriding interest, but not a big box retail store.

Replication

Another issue Norman and some councilors, including Wisnewski, have with the commission’s rewrite is the paragraph on alteration and replication of wetlands, which proposes, “To prevent resource area loss, the commission shall require applicants to avoid alteration wherever feasible; to minimize alteration; and, where alteration is unavoidable and has been minimized, to provide full mitigation. The commission may authorize or require replication of wetlands as a form of mitigation, but only with specific plans, professional design, proper safeguards, adequate security, and professional monitoring and reporting to assure success, because of the high likelihood of failure of replication.”

While the commission has said it feels that paragraph adequate, Norman says it is vague and does not define, for instance, “professional design” or “proper safeguards.”

Norman would prefer the town not allow replication of a wetland, except as a last resort and only in some cases.

Wisnewski said he has always had concerns about replication of wetlands, because replications do not always take.

“You may have a different (resource area) when you’re done, but you’ve lost what was there and the organisms that thrived there,” he said.

Mayor offers opinion

Mayor William Martin said the commission’s rewrite is a good one and that Norman’s ideas, including replacing “mays” with “shalls” and eliminating the possibility for replication, as well as removing the waiver, tie the hands of the commission, forcing it to follow very strict guidelines in every instance.

“Replication, for instance, is accepted statewide by conservationists and state wetlands laws,” said Martin, who also said any and every town or city has to have some leeway in its wetlands and other laws.

Norman also suggests that the commission contact abutters, as it is required now, and abutters of abutters when a project is adjacent to wetlands.

“That’s overkill,” said Martin. “You increase the number of abutters and you are increasing the number of people who can bring a lawsuit or receive standing in court.”

Norman also suggests that the commission take up to 90 days, instead of 21, to make a decision on permitting after a public hearing and all deliberation is complete for any project.

“You are quadrupling the time it will take to get any project going, including something a private citizen might be doing in his or her backyard,” said Martin.

“The commission’s rewrite is a good one — it’s a disciplined rewrite at the exclusion of no one,” said the mayor.

Once the council approves a new version of the town’s wetlands law, it will go to the state attorney general’s office for final approval.

The town’s current wetlands law and the commission’s recent rewrite can be found and compared at: www.townofgreenfield.org/pages/GreenfieldMA_BComm/Conservation/index. Then, scroll to “additional links” to find: Local Wetlands Ordinance and Proposed DRAFT Local Wetlands Ordinance.

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