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Greenfield wetlands change could affect big box development

Paul Franz./Bird's Eye Views photo
The former Mackin land on the French King Highway in Greenfield has long been eyed for a big box project.

Paul Franz./Bird's Eye Views photo The former Mackin land on the French King Highway in Greenfield has long been eyed for a big box project.

GREENFIELD — How the Town Council decides to revise local wetlands laws could affect the French King Highway big box project currently under appeal — if the revisions are adopted before the courts decide on the development.

Albert Norman, the Greenfield anti-big box consultant who calls himself a “sprawl-buster” and currently represents seven abutters suing the town over the big box project, has said many times at and outside of public meetings that his recent keen interest in modifying the Conservation Commission’s proposed revisions to wetlands rules has nothing to do with the big box he has fought for years, most recently by providing suggestions to “strengthen” the commission’s revisions.

However, town and state officials, as well as the lawyer representing the seven abutters appealing the project, have a differing opinion.

Norman has asserted that even if the current developer sold the property to a different developer, the court appeal would only affect the Planning Board special permit, not wetlands permits.

While it is true the current court case appeals the Planning Board special permit, court-ordered changes could send the proposal back to the Conservation Commission, too, and if a new project were to be presented to the town and the plans in any way affected wetlands, the project would also have to go back before the Conservation Commission, according to experts.

Catherine Skiba, spokeswoman for the state Department of Environmental Protection, said that when the DEP or a local conservation commission approves a project, that project is only approved as presented — it is about the specifics of that project.

“If anything changes with a project and wetlands are impacted, the project has be to reviewed again in its new form,” said Skiba. “We don’t approve a project and then let someone build something different in its place. Any changes would be a violation of the permit granted for the original project.”

If nothing were to change with the current project, it would not have to go back before any town board, so it would be built as approved by both the commission and the board and even a change to the town’s wetlands laws would not affect the project.

“If the exact same project ends up being built, there will be no problem,” said the town’s conservation agent, Maureen Pollock. “But, if the judge asks for changes and any of those fall within the jurisdiction of the Conservation Commission, the new project would need approval of the commission.”

Michael Aleo, the lawyer representing abutters, said he does not have a definite answer, because he wants to wait for the judge’s decision, but said, “It depends.”

“I can fathom it going either way,” said Aleo. “If the judge sends it back to the Planning Board to craft a new decision, it might expose the project to another review by the Conservation Commission. There’s no clear answer.”

Aleo said the judge could decide that the project is “OK” as is, could send it back to the Planning Board for some changes or many changes, or could ask that the project start from scratch. In the first case, nothing would happen, but in the other two, the project could impact wetlands.

“I’m assuming that a review of a new project, which is what it would be if anything changes, would have to be done by all boards concerned,” said Aleo. “There are so many potential outcomes, but the ordinances (on wetlands and Native American burials) might affect the project if it has to go back for another review.”

Eric Twarog, the town’s planning and development director, said if the project is remanded back to the board to even reconsider just a few issues, it would be treated as a new project in terms of its review by town boards.

For instance, he said, if the judge says the layout of the project is wrong and a new layout will impact a wetland resource area, the Conservation Commission would have to become involved.

“The two ordinances before the Town Council right now could affect that development,” said Twarog.

Norman has said the intent of writing a stricter local wetlands law has nothing to do with the big box project, although he refers to it in his discussion of changes to the town’s wetlands law.

Burial grounds

Others have said the intent of writing a Native American burial ground ordinance also has nothing to do with stopping development on French King Highway, but Joe Graveline and Howard Clark, who are both pushing for a citizen-proposed burial ground protection ordinance that would affect the White Ash Swamp, said during a recent Appointments and Ordinances meeting that they and others would like to see the burial ordinance passed before the judge makes her decision.

The burial ordinance proposal currently says that “The Town of Greenfield recognizes, to the extent provided for in state and federal law, any known place where American Indian remains have been buried or reburied as an American Indian burial ground, and as such, it shall be accorded the treatment and protections specified by federal and state laws, including, but not limited to, the Native American Graves Protection and Repatriation, the American Indian Religious Freedom Act, and a section of the National Historic Preservation Act.”

There have been questions about whether the ordinance might cause problems for the big box project already approved for the 17 acres near the swamp on French King Highway. If the project were considered an entirely new one by the judge, would it have to comply with the burial ordinance if someone felt the archaeological significance of the site extended outside of the White Ash Swamp and onto the development site? There is also a question about what would happen if the ordinance is passed and the current developer later decides to sell the French King property.

Norman has said he would prefer to see the current wetlands law remain intact, except for a controversial waiver that he would like to see removed, rather than have the council pass the commission’s recently completed revision, because he believes the current ordinance is stronger. The waiver, which exists in both the current ordinance and the proposed one, allows the commission to relax some of the town’s wetlands rules — but not the state’s. The waiver, adopted about the time the French King project was under review, was not used in the approval of the big box project in 2008.

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