The Marion Conservation Commission had a busy two weeks, adjudicating several cases during its October 26 and November 2 public meetings.
Because there is an inherent lack of definition of delineation on where work will actually occur, the commission voted on October 26 to issue Scott S. Rassoulian a Positive Box 3 Determination of Applicability in his bid to conduct some clearing of a deeded, existing, 10-foot right-of-way, pass way at 195A Converse Road.
Rassoulian, who told the commission he holds in common with the property at adjacent 195B (Lot 36) the deeded right to the pass way, wants to clear obstructions so he can carry his kayak to the water. The proposed work will require the filing of a Notice of Intent.
“We don’t know where the (salt) marsh starts,” said Commissioner Shawn Walsh, explaining that any work will require a properly delineated resource area.
Commissioner Emil Assing asked if it was possible for Rassoulian to come back to the commission with another RDA having described in exact detail the cutting intended and the wetland areas delineated on an engineering plan. Walsh said, theoretically, it is possible with the additional information.
“Unless they prove otherwise, the water-side clearing would be in the salt marsh, and that to me is something that should be in a Notice of Intent,” said Conservation Commission Chairman Jeff Doubrava.
After a recent site visit, Walsh discussed the vegetation on the more-seaward pass way but also noted that the materials that accompany the Request for Determination of Applicability was not clearly shown on the RDA file.
Having observed that the plan marked as wetland according to the state GIS map is probably salt marsh, Walsh estimated the length from the stakes to the saltmarsh line to be approximately 89 feet.
“A wetlands consultant is the appropriate professional to look at this area. … There really isn’t enough information for us to issue a Negative Determination at this point,” said Walsh, who explained further that the RDA is a question posed to the commission that essentially proposes an activity and asks, “Do I need to file a Notice of Intent to get a permit to do the work?’ The issue here is we’ve got a (plan) that doesn’t show the resource areas.”
Walsh noted that the path has a seawall and land subject to coastal storm flowage. He suggested that the seaward end of the pass way be staked.
Doubrava agreed and said, without wetlands markings, the commission could revisit the site and find that it has been clear-cut. “This has to be surgical, and we have to know what the bounds of this are going to be,” he said.
Representing abutters, attorney John Markey asked where is the line and what are the resource areas, suggesting that a professional is necessary to make these determinations. “Those things are not sufficiently clear,” he said.
In response to Markey’s comments, Mrs. Rassoulian said, “We’ve been harassed, we’ve been sweared at, we almost got run over. … We’ve tried every way, and all we want to do is take our kayak to the water.”
Having just asked Mrs. Rassoulian to limit her response to Markey to wetlands-related matters, Doubrava reiterated his request, reminding the attendees that a meeting two weeks prior “almost got out of hand.”
Mr. Rassoulian said he wants to settle the matter as amicably as possible and asked that the staking that needs to occur as part of the commission’s vetting process not be removed.
In arguing his case, Mr. Rassoulian noted that a government website containing satellite images of the area going back to 2005 shows growth that he considers invasive and not historic and puts the onus on the homeowners to keep the pass way clear. Abutters argued that the trees are actually growing back and existed prior to hurricanes.
“We don’t want to damage any property, none at all, because we also care about conservation,” he said. “We are right side by side (with our neighbors) so we are not trying to make a highway there. We just want to be able to use our right of way that has been deeded to us.”
Attorney Patrick Delaney appeared on the Rassoulian’s behalf only regarding easement rights.
At the motion of Commissioner Matt Schultz, the members voted to issue a Negative Box 2 Determination of Applicability for stormwater management and restoration of a swale on the part of the Town of Marion at 112-114 Point Road.
Representing the town, Jody Dickerson of the Department of Public Works explained the swale was receiving runoff until the last few years when sand, dirt and debris filled into the area. The DPW is looking to clean up the area so the swale will work correctly. Dickerson said the ground will be reseeded with wildflowers.
The commission voted an Order of Conditions to applicant Steve Clark, who filed a NOI to upgrade an existing, failed septic system at 707 Mill Street.
The commissioners voted to issue Jay G. Flanagan a partial Certificate of Compliance after work was completed on the septic system at 26 West Avenue, leaving garage work to be completed.
After a site visit, the commission granted Kathleen Welch a three-year extension to her Order of Conditions at 82 West Avenue. Walsh admitted disappointment that mitigation plantings were not in and suggested those will be done at the earliest possible opportunity.
During its November 2 meeting, the commission voted to amend the Order of Conditions, allowing Paul and Linda Vivino to raise their garage with other conditions remain as previously issued at 12 West Avenue.
Representing the Vivinos, Dave Davignon of Schneider, Davignon & Leone Inc., said that since an Order of Conditions was issued early in 2022, it has been determined that the garage would be best have a new slab poured at a higher elevation.
Starting from scratch on the same footprint would allow the raising of the slab on the backside of the structure 20 inches, pitching toward the front, which would be raised 18 inches. The idea is to create a pitch without a drastic drop in the driveway. The plumbing from the drain would remain the same, but the higher trench grade would also allow the removal of retaining walls from the plan.
Doubrava said the amendment to the Order of Conditions makes the activity no more impactful.
Abutter Ann Perry, 13 West Avenue, expressed concern about runoff into the road. With permission, Davignon responded that the difference between the property Perry referenced and the Vivino property is the Vivinos’ runoff will drain toward the garage rather than the street.
Guey-Lee substantiated Paul Vivino’s explanation of the presently higher grade as a temporary staging area for equipment.
Negative determinations of applicability were issued in two, connected cases with a common applicant.
Elizabeth Weinberg and Peter and Laura Grauer filed a Request for a Determination of Applicability for seawall and pier maintenance at 23 Water Street, and Weinberg and Elizabeth Smith filed the same RDA at 5 Water Street.
Representing Weinberg, Smith and the Grauer families, Davignon said the applicants simply want to continue maintenance. The work would be done manually this fall, he said. “It’s all manual footwork, one person with a manual and a trough.”
The commissioners voted to issue George and Viola Taylor an Order of Conditions for the upgrade of their failed septic system within the 100-foot buffer zone at 33 Abel’s Way.
Darren Michaelis of Foresight Engineering explained that the 1977 house needs a replacement for the septic tank. The existing leaching field is 20 feet from the wetlands, and moving it will put the wetlands 60 feet away.
A MicroFAST septic system with denitrification technology will be installed, and the old leaching field, having no sewage on the ground, will be abandoned. (The next day, the Board of Health would grant the variances requested.)
The Notice of Intent filed by Marion Trust #1, Michael Craffey, to repair an existing seawall and remove invasive phragmites at 522 Point Road was once again continued to November 16.
The commission determined that the Zoning Board of Appeals’ decision to approve the Heron Cove Estates 40B housing project is not jurisdictional to the ConCom.
The next meeting of the Marion Conservation Commission will be held on Wednesday, November 16, at 7:00 pm at the Police Station and also accessible live via Zoom.
Marion Conservation Commission
By Mick Colageo