Wetlands waiver could be in hands of Town Council

Committee recommends Conservation Commission power be handed to Council

GREENFIELD — If a five-member committee’s formal recommendation is adopted, Town Council, rather than the Conservation Commission, would have the power to waive local wetlands rules.

That proposal has the mayor worried that decisions about all types of projects throughout Greenfield will become, or at least be perceived as, political and will open the town up to more lawsuits and appeals.

The Town Council Appointments and Ordinances Committee decided earlier this week that it will hold a public hearing on Monday at 6:30 p.m. in 114 Main St. to discuss changes it has proposed to the Conservation Commission’s recent rewrite of local wetlands rules, which have not been updated since 2001.

Meanwhile, in discussions Friday several members of the Council committee seem to be having second thoughts about giving themselves the wetlands waiver power.

Changes

In the Council committee’s rewrite, the Council would decide whether a project, big or small, would be eligible for a waiver of wetlands rules. In 2008 the town allowed waivers, giving that power to the Conservation Commission, which by state law is charged with enforcing wetlands rules.

Precinct 1 Councilor Marian Kelner, Precinct 5 Councilor David Singer and At-large Alfred Siano, who is also chairman of the committee, said the change was made at the suggestion of Conservation Commission Chairman Alex Haro, who could not be reached for comment by press time on Friday, although the idea of giving waiver-granting power to someone other than the Conservation Commission started in a discussion among councilors.

The waiver rules as currently written list criteria that must be met before the commission can grant a waiver. The councilors left those intact, so the commission, an appointed body schooled in wetlands rules and law, would still determine whether a project meets them. But what would change is that the council would determine whether the waiver would be “necessary to accommodate an overriding public interest,” which is not defined in the ordinance. So the Council would have the final word based on whether its members felt a development or project was an overriding public interest.

The 13-member council would need a two-thirds vote to approve a waiver.

Politicized?

“A change like that will not bode well in Greenfield,” said Mayor William Martin. “The Council shouldn’t make a decision like that — the process would become too politicized. Also, councilors are not trained in wetland issues or the litigation that can result from a decision on wetlands.”

He said town board decisions over the past decade have not been overturned when appealed, because, Martin said, members are well versed in their particular laws.

Martin said he just recently received the Council committee’s amendments, so needs to research its changes more and then have the town’s lawyers review them to make sure they are legal.

“This is the same Council that voted against taking police out of Civil Service because councilors didn’t want the mayor to have complete control over who is hired or promoted — they said it would make those decisions political ones,” said Martin. “What do those same councilors think this will do?”

“The Council should not be involved in wetlands decisions,” said Martin. “We have commissioners who are trained in the state’s Wetlands Protection Act and other conservation laws, as well as the local rules, and many of them have served for years and have dealt with many different projects. Now some councilors want to take some of their authority away and let Town Council, which is not versed in these laws, make the decisions the commission should be making.”

Backtrack

Kelner said she would prefer to take all language out of the waiver concerning “overriding public interest.”

“We were trying to decide what was best and it was Alex Haro who suggested this change,” said Kelner. “I say take the whole thing out about overriding public interest. The Con Com has to follow certain criteria to issue a waiver, so leave that in and base decisions on that.”

Kelner said it is too difficult to define what is in the overriding public interest, because it is so subjective.

“I think the problem is that ‘overriding public interest’ is too difficult to define without some specifics,” said Siano. “I think maybe we take that language out if it becomes too much of a problem.”

Siano said he does not believe a two-thirds vote of the Council would be a political decision, because it would take a lot to get nine people to vote to approve or reject a project.

“I feel the commission does need some leeway in its decision making,” said Siano.

Singer said he thinks there needs to be a lot of discussion about involving the council in wetlands decisions before a vote is taken.

He said he believes waiver decisions should be made by the commission, but said some of the other changes are good ones.

According to the attorney general’s office and state Department of Environmental Protection, they do not review or approve Greenfield ordinances. The attorney general’s office also said it cannot provide legal advice or interpret the law concerning the committee’s amendments.

The Massachusetts Association of Conservation Commissions was still reviewing the committee’s proposals on Friday, so could not comment on them by press time.

Other issues

Martin said he is also concerned about other changes the committee made, including who would be considered an abutter of a project.

The current local wetlands law, as well as the state Wetlands Protection Act, considers an abutter someone living within 100 feet of property lines.

The council committee, whose members are Kelner, Singer, Precinct 6 Councilor Hillary Hoffman, Precinct 7 Councilor Karen Shapiro Miller and Siano, have increased that to residents living within 300 feet of property lines.

Martin and Maureen Pollock, the town’s conservation agent, are concerned that the change would open any project up to more objections and appeals.

The town wetlands rules are stricter than the state’s. The waiver could only be used to waive local rules. The town can never go below state standards and rules when making a decision concerning wetlands.

The town’s wetlands ordinance — including the latest with the committee’s amendments — are stricter than the state Wetland Protection Act in that it contains a 25-foot “no disturb zone” around all wetlands, which the state does not have.

It also requires that if a wetland must be replicated, the replication be greater than the wetland being destroyed, while the state requires it be the same size.

The state requires that abutters within 100 feet of property lines be notified and have standing, while the committee’s recommendation is abutters within 300 feet of property lines.

The state DEP has a variance that is similar to the town’s waiver in that it allows the state to relax certain rules, but it does not allow another governmental body to make decisions concerning any of the criteria in the variance.

While several towns and cities throughout the state have added a waiver to their wetlands rules so they have the option of relaxing them in certain instances, what no one has yet been able to find is another Massachusetts town or city that allows a town council, selectboard or any other legislative body to make wetlands decisions.

For a copy of the town’s wetlands ordinance, visit: www.greenfield-ma.gov. For a copy of the state Wetlands Protection Act, visit:

www.mass.gov/eea/ agencies/massdep

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