Barker Road

THE WORK JUST WON’T STOP

At the April 24, 2003 regular meeting of the Pittsfield Conservation Commission, the issue before the Commission was a Notice of Intent regarding unpermitted work being done on property on Barker Road. A foundation had been dug in an area abutting a wetland, and work on the site was proceeding. The Commission became aware of the violation and asked the landowner to stop all work and appear before the Commission for the required permitting process. Despite the obvious violation, no Cease and Desist Order was issued by the Commission.
At that meeting, one of the abutters expressed concern that no Cease and Desist order had been issued. He pointed out that the land was quite obviously a wetland and that the workers should not have needed the Commission to point this out. Caleb Mitchell, Pittsfield’s Conservation Agent, replied that “One of the reasons why a Cease and Desist Order was not issued is that they were not aware that they had committed a violation.”
Due to deficiencies in the applicant’s Notice of Intent, the Commission voted to continue the hearing on this project until the next meeting and scheduled a site visit for April 28. Commission Chairman Michael Makes added “I think we should also issue a Cease and Desist Order for the work that’s within our jurisdiction until we have a valid Notice of Intent and a valid Order of Conditions.” Agent Caleb Mitchell replied “I’m not supportive of that because I think they’ve been cooperative since the violation was noted.”

Chairman Michael Makes: “So what you’re saying is that if they do any work then you would issue one?”

Agent Mitchell: “If they were to engage in any further work within 100 feet of the wetland without authorization that would be grounds for issuing a Cease and Desist Order.”

Commissioner Conant: “So you have the ability to monitor in the interim and if you saw any work out there you could order or issue the enforcement order?”

Agent Mitchell:”I could certainly go back to the site. It seems as though the Commission itself would like to go to the site.”

Conant: “The applicant has been cooperative?”

Mitchell: “The applicant has been cooperative.”

No Cease and Desist Order was issued by the Commission at the meeting.

The very next day, April 25, a member of BEAT received a phone call from the abutter who had voiced concern over the lack of a Cease and Desist Order. He told us that the machinery was operating within 100 feet of the wetland as he spoke. He didn’t know what to do about this violation. One of our members proceeded to the site while another telephoned Michael Makes, Chairman of the Conservation Commission, who agreed to go to the site immediately. By the time BEAT and Mr. Makes arrived at the site, the work had stopped, but it was clear to Mr. Makes that dirt had been newly moved in violation of the Commission’s directives. He stated that he would notify Caleb Mitchell to issue a Cease and Desist Order.

The Commission’s scheduled site visit occurred on Monday April 28. A member of BEAT was present. However, a few hours before the visit was scheduled to start, Mr. Mitchell had notified Mr. Makes that he would not be able to attend. This resulted in a lack of a quorum at the site visit. When asked about the enforcement order, Mr. Makes replied that Mr. Mitchell had refused to issue one.

The applicant appeared before the Commission on May 15 and received a permit. The Order of Conditions specified that the first task had to be the installation of proper drainage to protect their neighbor’s property. Also, no work should begin until the appeal period was over. (The appeal period would end about June 11.)

At the June 5 meeting of the Conservation Commission, Mr. Michael Makes, Chairman of the Conservation Commission, offered this recap of the story thus far.

“After we had our public hearing [May 15] there was a couple of days where they did nothing, and then in the morning (the neighbor) called me and said they were preparing to pour the foundation… It was probably the 28th. And I left a message with Caleb who didn’t get it till later in the day. He did call them. By the time Caleb called them and they agreed to stop, they had already poured the foundation…They did give Caleb assurance on that day, the 28th, that they wouldn’t do any further work. On the 29th they went back, they hooked up the water, they started bulldozing in the back, shaping and grading. They started backfilling the footing to begin putting in the foundation drain, around the side of the building away from (the neighbor’s) house… Since we have talked to them last week, and since we threatened them with two (enforcement) orders last week, and since both Caleb and I have been out there, they stripped the foundation and continued working.”

Mr. Mitchell issued a Cease and Desist Order on May 29. Work proceeded despite that Order. At the Conservation Commission hearing of June 5, the Commission ratified the Order of May 29 and voted to issue two more Cease and Desist Orders to the applicant, and to notify that applicant that should any more illegal work occur they would take the matter to court.

The Commission also noted that the map of the worksite submitted by the applicant’s engineer (SK Design) was in error. The river behind the worksite had been misplaced by 80 feet and was actually closer to the worksite than indicated.

At the next meeting of the Conservation Commission (June 26), SK Design submitted their new corrected map and apologized for the errors in the previously submitted map.

A neighbor to the site pointed out to the Commission that the fill being used at the site was not clean fill. This was a violoation of the Order of Conditions issued by the Conservation Commission. The applicant’s contractor acknowledged that the fill was not clean and took responsibility for it (said it came from Center Street in Pittsfield) and agreed to remove it.

The Commission voted to accept the revision to the plan (the new map) and will allow the work to continue after the new appeal period is ended.

BEAT continues to work closely with the abutter (neighbor) on this project. We will keep you posted on any developments.

Note: At the time, Mr. Mitchell was not only the Conservation Agent, but  also a voting member of the Commission.