Salem Conservation Commission – Special Meeting
Minutes of Meeting
Date and Time: Thursday, November 15, 2012, 6:00 p.m.
Meeting Location: Third Floor Conference Room, City Hall Annex, 120 Washington Street
Members Present: Chairwoman Julia Knisel. David Pabich, Dan Ricciarelli, Amy Hamilton, Bart Hoskins, Greg St. Louis
Members Absent: Michael Blier
Others Present: Tom Devine, Conservation Agent
Recorder: Stacy Kilb
Chair Knisel calls the meeting to order at 6:10PM
Old/New Business
- 24 Clark Avenue, DEP #64-259: Request for Certificate of Compliance
Devine updates the Commission on his efforts of the previous week. Robert Strasnick, attorney, is present, as is the homeowner, David Moulison.
Devine has researched several solutions and has consulted his peers. Rachael Freed, DEP Wetlands Section Chief, provided guidance. She recommended taking enforcement action against the developer, Ken Steadman, to correct any major deviations from the plan approved for the subdivision. Both the developer and individual home owners can be considered violators, and the Commission can issue an enforcement directive to the developer with milestones that require that work be done. If Mr. Steadman must get onto the property of others, then the Commission could require that they be cooperative or be penalized.
The DEP offered to back the Conservation Commission and if Mr. Steadman does not cooperate, they can take over and issue a heavy fine. The DEP starts their process by issuing a fine, whereas the Conservation Commission gives a warning first. Ms. Freed advises against escrow agreements involving the Commission; any of those should be between the buyer and seller without the Commission. The Commission has, in its local ordinance, the authority to have a bond posted when a permit is issued. But we were advised against issuing any Certificate of Compliance until the work is done. Devine spoke to Mr. Steadman on the phone and advised him that the commission is likely to take enforcement action.
Devine suggests that the Commission should not issue a partial Certificate. The DEP suggests that if there is urgency to finalize a sale of the property, it could be it could be facilitated with and escrow agreement between buyer and seller. Mr. Strasnick says if it was that simple they would do it, but the bank would have to know what work has to be done. Plus the bank must go through an insurance company who must be willing to insure with the escrow.
Mr. Strasnick says the statute that controls these orders says there is a three year statute of limitations on conveyance. But we are not sure if the statute gets renewed upon further conveyance – Mr. Strasnick thinks so, since banks want the title cleared and the Order issued and closed. It makes sense for everyone in the neighborhood to cooperate. Mr. Strasnick says we are where we left off last week. The original wetland scientist was contacted and Mr. Strasnick says she will check in her notes to review the situation. But her files were destroyed from so long ago. This board has the authority to make sure the proper amount of wetlands are replicated within the development, and Mr. Steadman has other projects being permitted in Salem, so he has land that would be available for replication that he could
use. Even though the DEP’s recommendation was to issue a full Certificate of Compliance, it did not say this board lacks authority to issue a partial. Mr. Strasnick asks that they consider the Certificate and the situation to be unique and they should hold Mr. Steadman accountable.
The homeowner adds that anything on his property was not built up any different from the day of purchase. The commission asks if this is covered by title insurance. Mr. Strasnick says the Order of Conditions was exempted from coverage. There was only one order for the whole development. Mr. Moulison was one of the first purchasers so he could not have insisted on a full certificate as the development was still ongoing. We can’t say his attorney should have caught the issue because it was not relevant at the time.
Ricciarelli asks about grandfathering, but Pabich says this was a procedural change. The insurance company knew there was an open Order and exempted this issue so the insurance company is indemnified. Mr. Strasnick says the three year statute of limitations is forcing the owner to comply. If he were to stay in perpetuity he could theoretically refuse to have the work done, and leave it as is. Pabich asks that, if by purchasing with an open Order, is the purchaser buying a violation? Now it is that person’s violation rather than Mr. Steadman’s. Mr. Strasnick says there is a three year window to insist on compliance. Pabich says the violation renews the statute of limitations every day, but that’s for the developer, not the owner owner, as Mr. Strasnick is reading it. The person who applies for the Order
is subject to the Commission and must apply for the Certificate of Compliance, so violations renew for them, not for current property owners. This would be another reason in favor of issuing a partial Certificate of Compliance, so they can move forward with the rest of this.
Hoskins asks if a partial Certificate would absolve the property of meeting the original requirements, or make it so that they can go to the bank with an estimate of what must be done. One possible scenario was to give the bank a finite list to which a cost could be attached. Can the Commission break it up and describe this as an individual parcel for the sake of clarity, as to what has to happen so it is not an open-ended liability for the bank?
For example, it would represent 1/6 of all work to be done, or all work on this lot. The area in this property was a relatively small piece. The Commission would still pursue enforcement on the whole thing but the bank would be able to attach meaning to this piece. Pabich opines that if we issue a partial Certificate, other residents will request one too, even if the work was not done. It would set a precedent, and will close out that part of the project so it won’t get done. Hoskins asks about the partial Certificate –could it restate original conditions? Devine notes that perpetual conditions can be noted in the certificate, but work required by the original order can’t normally be conditioned in the certificate. Pabich asks what if we issue the Certificate but say hay bales must be removed? It is an
informal way of doing it, and in such a case, Devine simply does not mail the Certificate until the hay bales are removed. Ricciarelli asks about the buyers, if they had any ideas or would agree to an easement so the work could be done. The buyers would accept an easement, and Mr. Strasnick thinks this is the best idea as they will never get a permit to build against the wetland. But the bank must be satisfied, so the best case scenario is that the Commission vote to say the seller is clear, then they will deal with the developer and force him to resolve the deviations, before any other parcels come up. Alternately they would need to know what would be required on this parcel and; if it were remediated before the rest of the development, they would get a clean Certificate and get estimates, and the bank would accept that and there would hopefully be enough money to put in escrow so the seller can sell and pay off the mortgage. He asks that they treat the property as unique. Devine
notes that it is difficult to separate this property from the common elements of the plan such as the culvert under the road.
Devine will meet with Mr. Steadman next week, and he expects that if the Commission takes the enforcement option, Mr. Steadman should be required to survey the site. Pabich says they are looking at replication vs. filled areas, and there was no deviation in filled areas, but there is a wall where there should be a slope. It’s not just the area of replication, but the whole edge of the entire development. Without knowing what Mr. Steadman was supposed to vs. what he did do, and a plan showing the deviations, it is hard to work out an agreement about said deviation. Half of each yard could be lost. Pabich sympathizes and Chair Knisel reiterates that they brought the issue before the Commission on their own. St. Louis asks if the Order had been extended as it should have been, would the bank still have a
problem? Devine states that the order has not been extended, so it expired years ago. Mr. Strasnick says, as presently constituted, it is a cloud on title. Now the Order is expired, not closed, but is still a cloud on title.
Chair Knisel says fines will make Mr. Steadman cooperate. It could cost him $200 per day per violation. Pabich asks about areas that were supposed to be replicated. The scope of replication and work done vs. approved is discussed.
Devine says from what he saw there are areas that should have been replicated but were not. Pabich says Mr. Steadman will come in and explain what he will do to make good with the homeowners in order to fix what he didn’t do. Pabich says since this is a small piece we can forgive what happened here in the interest of getting things moving. Ricciarelli wonders if they can replicate elsewhere and not affect someone else’s lot. As long as it is hydraulically connected to the wetland it is acceptoble. But if Mr. Steadman can’t do it there will be issues.
Chair Knisel says if we grant partial Certificate, we don’t want to lose square footage of wetland, and by closing it we waive our right. If we can do an easement for wetlands replication carried forward to the buyer, it would satisfy the wetland requirements, but would have to be on the exact site in question. Devine says Mr. Steadman’s name is not on any property nearby.
All properties were once owned by Mr. Steadman but no longer. The Commission is not sure about lots across the way. Pabich points out the location of fill vs. where replication should have been. The violation continues all along the subdivision if replication was not done. Pabich asks if we are sure if the work was not done, but we don’t know if it was not done beyond this one yard. In that event this would be resolved after a survey of the whole site. Now Pabich thinks it would make sense to move forward from this lot and make Mr. Steadman prove that he did what he said. There is no benefit to holding this owner “hostage”. Devine opines that the Commission would be issuing a partial Certificate for a property that has more than 1/6 of the wetlands fill on it. How can they hold Ken Steadman to
doing more than a 1:1 replication in that case? Ricciarelli says it does not change the volume of replication. Mr. Steadman got permission to fill, but had to replicate. If he did, that would be good, but if not, he still has to replicate. Ricciarelli says they must protect themselves too since they will need an easement in case he can do the work. It opens options and Mr. Strasnick is open to that. Wetlands must be hydraulically connected, so the work can not be done at another subdivision. Hoskins asks about the easement – it would say the developer would be able to come onto the property to do work to satisfy original Order. The new owners must understand it may impact their yard, according to Ricciarelli. It was explained to their Counsel and they can put it into the deed, according to Mr. Strasnick. If they don’t accept it, they will have to wait until the a full certificate is issued, but he thinks the new owners will go along with the easement. In this case
the Commission does not waive any rights.
Pabich says if time was not of the essence, Mr. Steadman should prove that the work was or wasn’t done, but that is not the case. Mr. Strasnick says Mr. Steadman did not return his calls and the wetlands scientist who worked on the project originally has no records. Hoskins opines that Mr. Steadman should be here, especially if he can prove he did do the work.
Pabich asks about the language for an easement agreement. Mr. Strasnick says it would require access to do what needs to be done in order to satisfy the existing Conditions. It would permit work to be done and the new owners would agree that Mr. Steadman can do the work. The Commission can use the plan they already have to determine the easement. Easement logistics are discussed. The easement would be held by the Commission as part of the Enforcement Order. They would discuss it with Beth Reynard, in order to write up something satisfactory. It would be written into the deed of the new owner.
Devine is concerned that by issuing a partial Certificate, we are absolving Mr. Steadman of his replication responsibilities, in favor of square footage, but that has been answered. He is worried about the justification for issuing a Certificate of Compliance that says this lot is in is incompliance, when it’s not.
Hoskins asks if a sticking point is that we are assigning responsibility to Mr. Steadman but previously it was with him AND individual homeowners. The idea is to issue the partial Certificate, then work to hold Mr. Steadman accountable for the project violations.
Devine says we currently issue orders for developments completed lot by lot. Normally there is an Order of Conditions for the roadway and utilities, then separate orders for each house. However, this is not a work in progress and it is difficult to separate this one piece.
St. Louis wonders if all mitigation can be associated with the roadway, which does not receive a certificate of compliance. That would separate this lot from Steadman’s required work. Devine still has doubts about issuing a Certificate for a deviating lot. It seems dishonest to say the work associated with this lot is completed. Chair Knisel points out that by using an easement, it demonstrates the Commission’s intent; also the Commission would not have known about the issue at all if the seller had not brought it up. The wetlands would be no better off.
Devine states that enforcement action against Mr. Steadman would mean he has to survey and delineate the whole lot, and come up with a work plan to bring it into compliance. We don’t know what that will look like yet, and lacking that information without Mr. Steadman’s assessment, an easement may or may not help.
Pabich says we do not have a survey that shows us detail, and that less than 300 square feet are in question. The easement gives the seller the benefit of the doubt. The DEP may not like it but it seems logical. We will hold Mr. Steadman accountable and he will either prove it was done or have to complete the work. Ricciarelli asks if it was the same surveyor that did the subdivision – it is. So the Commission can ask about the project and if replication was shifted. He did have original plans and thought it was substantially completed.
Pabich says that Mr. Steadman must replicate what he said he would, and built up more than he was supposed to. Replication would have been spread out, not just on this lot, so the Commission can make it happen.
Chair Knisel asks about timing and how aggressive we can be with enforcement. How soon can we fine? We would want a survey, wetlands delineation and a compliance plan by the next meeting, then the Commission could determine a timeline with milestones. Fines by the Commission cannot be punitive, though the DEP might issue a punitive fine if they handle enforcement. They can be a tool to get Mr. Steadman to comply if he is nonresponsive. If he is nonresponsive or uncooperative, would the Commission pursue the matter by going to property owners lot by lot? Hoskins asks if the Commission is giving up any right to treat lots individually. Pabich says we are using Mr. Steadman to get work done but we won’t be holding individuals accountable. An easement means the Commission could do the work if Mr. Steadman won’t. Ricciarelli feels that if we fine him, he will do the work. The Commission is not in the business of doing this work. The only legal tool we would give up would be to force
this owner to do the work, but we would not be giving it up for the others.
Pabich thinks we have a mechanism, i.e. “get it to us in 30 days or it will be a $200 per day per violation fine,” then we will work out a timeline. The easement will give Mr. Steadman access on this parcel, but he must work it out individually with the other owners. The best case scenario would be that he actually did the work but there is no paper trail. The Commission did not pursue it as the project was completed, so we cannot hold this owner accountable for that mistake. The agent at the time should have followed through, according to Pabich.
An easement is needed to make replication easier. The DEP suggests that all homeowners have bought into the violation and if they do not cooperate we can penalize them. Pabich says that the Commission is not the DEP. St. Louis says that if the contractor was onsite it would be different. Pabich thinks that the DEP should work with individual owners and not this Commission. Devine says it is an option.
Hoskins asks about the intent of the easement, and Chair Knisel says it just demonstrates the intent of the agreement, and without it, this lot will be closed out without leverage.
Chair Knisel wants Devine to be on board and she wonders what he wants. He says if we do enforcement against Mr. Steadman, a milestone for the next meeting should be a survey, wetlands delineation, and a proposed work plan. There would be some certainty in what work has to be done, which may help the seller with his transaction. However, the timeline right now is that the buyer’s financing expires tomorrow. The buyers would have to reapply for financing if something is not done by tomorrow. If they go the route as discussed, they can deliver a good title and the closing can be scheduled for early next week with the existing financing. Hoskins asks how fast easements can be made. It could be done tomorrow morning. Language would be drafted, reviewed and agreed upon; then it would be emailed to the closing attorney,
and the bank would check it out. If their bank balks, the seller would be no worse off than he is now.
Pabich says that the options are to issue a partial Certificate of Compliance, or hold off until we see an easement. He wonders if it is possible to rescind a Certificate. Devine says that if the Commission issues a partial Certificate for this lot, the Commission is approving the shed and concrete slab that are there, but are deviations from the plan. Pabich has his doubts, plus the owner has agreed to either move the shed or take it down. Devine states that the shed and the slab are permittable but unpermitted. Pabich thinks the existence of the slab and shed is minor relative to the entire slope.
The two decisions in this case are the request for the Certificate of Compliance, and how to proceed with enforcement. Devine will draft a letter to Mr. Steadman for enforcement purposes, requiring a survey of the subdivision, delineation of wetlands, a description of deviations from the approved plan, no later than a few days before the next meeting (Dec. 13). Replication may have been done in an area that is not apparent. If work is needed to bring the project into compliance, a proposed work plan will be required.
St. Louis comments that additional work could be detrimental. Ricciarelli opines that Mr. Steadman should get a flat fine for not doing the work. Pabich would like to give Mr. Steadman the benefit of the doubt and let him show the Commission whether or not the work was done, then deal with fines.
The Commission is comfortable with issuing a partial Certificate with an easement. The is issued not when the Commission votes, but when it is postmarked. Devine will hold it until the easement is in place. Devine says the Commission must specify what it requires with an easement. He asks if it must be finalized before the Certificate is issued or if it should be left open.
Hoskins thinks it should reference the original requirements as they pertain to this property. However, the original plan may not be the best thing to follow now, and the Commission would like more flexibility. Pabich says that the intent of the original plan should be met, but square footage or removal of the wall need not be specified. Mr. Strasnick says that they are looking for access to the property, though it may not be needed. The buyer should be made aware of the possible scope of the work, and be able to end the easement after it is done, if needed.
The easement will be for access and mitigation work on the property footprint as defined by the plan. It will not give access to adjoining parcels. Devine clarifies that we are issuing a partial Certificate with easement, that will allow the work we want to be done. The Commission will have property right vs. a regulatory right, according to Mr. Strasnick.
According to Pabich, this arrangement means that the Commission is certifying that work will be done under an easement so that we can do work which is not yet defined. If the easement fails to materialize, the Devine will not release the certificate. However, Mr. Strasnick states that he would not request the Certificate until he has the easement in hand. It is not certain whether or not the easement requires City Council action. It would automatically terminate upon issuance of a full Certificate of Compliance.
Devine does not recommend this as a course of action. While it appears to him that replication did not occur as required in key locations in the subdivision, this property is the only part of the subdivision where we have verified through a survey that replication was not done. Devien says he knows of at least one other similar situation that may be coming before to the commission soon and he is worried about precedent.
The Commission feels that if another developer or buyer came before them, it would have no bearing on this situation. Each site is unique. Chair Knisel asks why they should create problem for a resident if it was poor record keeping on the part of the City? Devine says there are many ways this could have slipped through cracks. Some responsibility lies with the current owner, who failed to obtain a clear title when purchasing the property. Ricciarelli says the easement means the violation does not go away, but passes on to the next owner until the work is done. Pabich says as far as precedent – the easement says work could be done, and could work in the future. It is not ideal but is a workable solution. The owner says if he knew about this situation, he would have fixed it.
A motion to issue a partial Certificate of Compliance, to be issued upon receipt of an easement granting the Commission or its designee access to allow work to be done to bring the subdivision into compliance, is made by St. Louis, seconded by Hoskins , and passes unanimously. This decision is hereby made a part of these minutes.
Devine says that the other matter requiring a vote is enforcement against Mr. Steadman. The above-mentioned items (delineation, etc.) are required before the next meeting. The deadline is set for a week before the next meeting. Pabich says that the Commission is requesting that Mr. Steadman gather information on property that he does not own, but according to St. Louis, surveyors should have the right of access anyway, and property owners should receive a notification letter from the Commission.
Devine comments that there is no time pressure now that this individual lot is taken care of, but the Commission wants to move forward with the rest of the matter ASAP. Pabich reiterates that Mr. Steadman should prove the work was done so the Commission can issue a full Certificate. Each day of filled wetlands is a current violation. The week before the next meeting, the Commission wants an as-built survey, which could be in Mr. Steadman’s files. Some plans may exist but he may not have done an as-built, but the Commission will give him the benefit of the doubt. If he cannot produce it, he will have to produce it and will have a rigorous timeline.
Hamilton thinks the Commission should give him two weeks to reply as to whether or not he has that item, then give him a timeline to complete survey if he does not have it. Devine says he will see him Tuesday; if he says he does not have it then it can trigger a timeline of 30 or 60 days. Pabich says at least 45 days are needed because of the need to ask permission of the property owners. Devine wants to be prepared if Mr. Steadman does not come to the meeting, and will send a letter. He will be before the Commission soon for another property, the Witch Hill subdivision. The agent at the time of the development in question may have been Steve Dibble, and he may have made judgment calls in the field.
To reiterate: Devine will see Mr. Steadman this coming Tuesday; if he does not show or cannot produce an as-built survey, Devine will send a letter requesting the original as-built, to be due two weeks from Tuesday, a week before the next meeting (this would be Dec. 6th). If Mr. Steadman does not produce a survey, he will need a signed proposal from a surveyor, sent to the Commission two weeks after Dec. 6th.
If no as-built is presented, the Commission will give Mr. Steadman 45 days to develop one, including two weeks to produce a contract with a surveyor and wetlands scientist. Also within 45 days, a description of any deviations between the approved and as-built plans must be submitted. Wetlands delineation should be on the as-built. If the original as-built is produced, he does not have to do the delineation. The Planning Board does not have an as-built. Mr. Reed, the surveyor, was not sure if he gave the Commission an as-built. It is not certain if the lawyer asked the surveyor if the replication was supplemented on other lots.
Depending on its assessment of the information it is requiring Mr. Steadman to produce, the commission may require a draft plan of work required to bring the project into compliance.
A motion to proceed with enforcement action is made by Pabich, seconded by Hamilton, and passes unanimously.
A motion to adjourn is made by Hamilton, seconded by Hoskins, and passes unanimously. The meeting ends at 7: 50PM.
Respectfully Submitted,
Stacy Kilb
Clerk, Salem Conservation Commission
Approved by the Conservation Commission on January 10, 2013
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