The Town of Lincoln, MA - Minutes

This hearing was attended by Josh and Sandy Grindlay (property owners), Dave Burke (wetlands consultant), and Buzz Constable and Jim Fleming (Lincoln Land Conservation Trust). Peter von Mertens gave an introduction to the issues and an overview of the subgroup’s work. At the previous hearing it was decided to have a subgroup of the ConCom work on the Grindlay remediation plan and this group was composed of Peter von Mertens, Jim Meadors, Sara Lewis, Jim Henderson, and Tom Gumbart. It has been a long process working on determining appropriate remediation. The recent discovery that the herbicide Roundup was used in wetland resource areas and the conservation restricted area after the initial Enforcement Order further complicates the situation. The ConCom and LLCT are looking for a remediation solution with three components: the planting plan, a monitoring program, and tennis court removal as mitigation. These are discussed in a written document “Grindlay Proposal” dated June 5, 2009.

A site visit on June 2, 2009 revealed that there is natural regeneration in many of the cut areas, such as white pine seedlings. The ConCom would like to see the native shrub layer in the view corridors be allowed to mature to their typical expression, not pruned low. Peter von Mertens reviewed the proposed changes to the planting plan produced by Dave Burke for the Grindlays. These changes are summarized in a written document “Summary of Changes to Restoration Plan for Grindlay Property” dated June 5, 2009. Changes include a provision for extensive replanting of the herbicided areas, contingent on the degree of regeneration observed during this growing season. Tree sizes in some areas were downsized to minimize impact during installation. One 3" dbh red maple is proposed for planting and the center of the end of view corridor (?-?) to replace the large red maple that was cut in the view corridor right on the edge of pond. The need was discussed for having many of the key trees and shrubs surveyed and shown on the final plan; this is for both plants that will be critical for natural regeneration and for larger marker trees. Also the corners of the view corridors need to be permanently marked in the field.

Jim Meadors spoke to the need for close monitoring of the site. He noted that a central element to the planting plan is the reliance on natural regeneration. The ConCom and LLCT believe that ongoing monitoring, for a period of five years, is necessary to ensure that plan is fully implemented. To fund this monitoring two organizations are looking for the Grindlays to fund this five-year program with a payment to the ConCom of $15,000. This number is based on two monitors working at $25/hour for one 8-hour day, once a month for 7 months in each of the five years plus $200/year expenses. This is for field monitoring and office follow-up work, i.e. reports, photo printing. Peter von Mertens said this work may be done by Conservation Department staff, LLCT staff, or outside independent monitors. The ConCom’s interest is primarily the wetlands and the LLCT’s interest is primarily the conservation restricted land. Jim Henderson said there needs to be intensive photo/video documentation of the site now and throughout the monitoring period. Points need to be set for taking the same data points at the same locations during each monitoring site visit.

Peter von Mertens discussed the tennis court removal, a course of action initially proposed by the Grindlays. For this the two organizations are looking to have the Grindlays fund this removal at a cost of $10,000. The LLCT will handle this fund and both organizations will guide the tennis court removal and subsequent restoration to hayfield as part of Pleasant Meadow.

Dave Burke questioned what is meant by the “public trust” which the Grindlay Proposal cited as being breached. Peter von Mertens responded with a discussion of the public CR values that were affected by the unauthorized vegetation clearing activities. Also he discussed that funding for the Booth Property acquisition came from significant private donations on behalf of the Lincoln Community and came from public money with use of CPA funds, with the stated purpose of preserving the state of the property. The previous owner had certain desires for the future of the property and these were reflected in the terms of the CR and then these terms were purposefully violated.

Buzz Constable said that the LLCT also has a subcommittee working on the Grindlay issue and that any recommendations for an acceptable resolution strategy will need to be brought to the full LLCT Board of Directors for final approval. The LLCT is working from their existing Enforcement Policy. The desire is to restore the land to its state prior to the cutting and spraying. At least 100 hours of staff and volunteer time have been spent on this issue to date by the LLCT. At some point the LLCT may need to use outside help and the terms of the CR allow for billing this, and the hours put in to date, to the Grindlays. The LLCT has independent enforcement rights aside from the ConCom’s wetlands issues.

Buzz Constable said that using iron pins with sleeves for marking the view easement corners would be acceptable, rather than the more expensive granite bounds. He mentioned that view corridor “G-H” to the Duck Pond also needs the corners and photo stations to be marked on the final plan, this marking was not noted on the latest plan edits done by the ConCom subgroup. The LLCT also wants a two or three year moratorium on any cutting in the “G-H” corridor. For the work around the house that was designed by Doug Adams, it was reiterated that the final site work after grading and retaining wall installation needs to allow the land to become restored with native plants, similar to the immediate surrounding landscape. It cannot be converted to lawn.

Other comments made by the LLCT include that there shall be no increase in the size of the current meadow down by the main pond and that no chemicals shall be used in the management of the field. There shall be no chemical use within the CR land or the 100-foot buffer zone except by a MA Certified Pesticide Applicator, and then only with prior permission from the two organizations. There also needs to be some type of warranty of the restoration plantings, that if they die or disappear then replacement plantings will be needed.

Both the “public trust” doctrine and the “charitable trust” doctrine exist here and can affect how the LLCT determines to settle the violation. Ann Booth’s donation towards completing the preservation project was based on her desires for the future of the land. If this settlement being discussed does not happen then the LLCT reserves the right to pursue other appropriate means for resolution. It also needs to be noted that the LLCT does not have any time limit on seeking resolution, i.e. the organization is not bound by a five-year period the way the ConCom is with its Order of Conditions. Jim Fleming reinforced the point that the LLCT subcommittee on enforcement must go to the full LLCT Board and that he and Mr. Constable cannot guarantee that the Board will accept the final plan being worked on at this time. Jim Fleming also said that the monitoring may need to be done by an agreed upon third party. Jim Meadors said that a third party may not be best and that the ConCom and LLCT staff could handle the monitoring. Buzz Constable replied that it would be good to have an option of hiring a third party expert monitor if staff changed. He said that if the proposed monitoring is not done, the LLCT reserves the right to monitor and enforce and seek reimbursement for expense if this becomes necessary.

Josh Grindlay apologized for the violations, and stated that he was solely responsible for them and that he really does wish to rectify the situation. He said that “it does not feel good to live in a Town where you are not trusted.” He stated that his motive was to maintain the land by doing invasives control and thought that spraying the buckthorn would be a good idea. Josh Grindlay expressed the hope that there can be a restoration of trust and asks that the ConCom and the LLCT not impose a collective $25,000 in costs for monitoring and tennis court removal. He stated that this would be a financial hardship, but that they would like to pursue the tennis court removal and are willing to pay Don Morris to do this at a cost of $5,000, which they were quoted for the project.

Mr. Grindley also said that the herbicide spraying was done in August 2008 and not in the spring of this year. He hoped that the community will accept Sandy and himself as conservation-minded neighbors who are here to help preserve the property. Peter von Mertens responded that he and the Grindlays go way back on the Booth Property acquisition and that at this time such trust does not exist but that it could be rebuilt over time, but Mr. Grindley’s not being forthcoming about the herbicide treatment did hurt the level of trust that the two organizations had in him. Jim Meadors stated that he had a conversation with Josh Grindlay after the first Enforcement Order in which he stated that no herbicide should be used, particularly around the pond, and that the herbicide treatment occurred after that conversation. Josh Grindlay again apologized for any misunderstanding but reiterated that they do not have the funds to do what the ConCom and LLCT are proposing.

Peter von Mertens believes that the LLCT and ConCom are quite understanding but is still unwilling to alter the dollar amounts, especially since they are reasonable and are based on costs that ConCom is expecting to incur in monitoring the site. He views the solution as a just and fair way to correct the situation. Since what was there before cannot be fully restored, the plantings, monitoring, and tennis court removal are appropriate. Josh Grindlay stated that the monitoring is excessive and based on distrust. Sara Lewis said that the monitoring is actually routine but in this case it needs to be much more extensive. Josh Grindlay asked for a few years time to see how the restoration goes before asking for money to be paid out for monitoring. Jim Fleming said that there are others looking over LLCT’s shoulder to ensure proper action is taken to rectify the situation. Buzz Constable agreed with Jim and said that he has known the Grindlays for years and holds them in high esteem but that the early years in the restoration are the key years for monitoring. It is essential that the monitoring is paid for up front. These days many CRs are only accepted when the monitoring is fully funded, even without a violation issue, and that funding monitoring is now a standard protocol. Peter von Mertens reminded everyone that changes can happen very quickly and that regular intensive monitoring will alert the two organizations to any such change.

Dave Burke said that he is a professional who has dealt with similar situations for twenty years and he has seen much worse violations. He stated that he is dedicated to conservation and he does not view the Grindlay violation as a major infraction. He sees it as an honest mistake, that Josh Grindlay stretched the boundary to reestablish old views with almost no wetlands impact, there was no filling of wetlands, and that Josh Grindlay was excited to work on land he just purchased. He views the $25,000 as a very steep financial fine, especially given that the disturbed areas will grow back over time. He also stated that usually monitoring is at the expense of the applicant with a monitor hired by the applicant and he is wondering if the ConCom has lost faith in him. He raised the possibility of using a performance bond or escrow account to pay for monitoring done by him, given his experience on the property and with similar projects.

Dave Burke also said that he believes the $5,000 estimate obtained by the Grindlays to be a more accurate estimate than one that is double that amount. He also said that the overall cost ($25,000 & plantings) is too high given the nature of the infraction and is hoping that the overall cost could be reduced significantly. He believes the area will rebound with plant growth, even in the areas treated with herbicide. He estimates that the cost in planting trees alone could be $12,000 and with shrubs it could reach $15,000. The spirit of restoring the area is well understood and brought up the issue of beaver protection for new plantings. Extensive use of fencing could go against the desire to restore the area. Jim Meadors asked if Burke thought that there are too many trees on the planting plan. Dave Burke responded that there are many trees on the site and lots of thriving vegetation. The original house location was based on views to the pond and Fairhaven Bay and it is hard to quantify the benefit of tree planting. He favors allowing natural regeneration with native plants already found on the site, a large stand of trees still exists on the land. He wants the end result to be positive.

Peter von Mertens replied that the $25,000 is not a fine but a means to achieve very specific goals. Buzz Constable said that the LLCT is looking for $10,000 to cover the tennis court costs and that the money could also go to cover other LLCT costs directly incurred by dealing with this situation. Remaining funds, if any after the tennis court removal, could also go back into additional invasives control on the site. Dave Burke wondered if a set cost of $10,000 is indeed a fine if the tennis court cost is ultimately less than that. Buzz Constable said that there is no way for the planting plan to restore the damage done and therefore we are trying to develop a way to mitigate for large losses. The LLCT could use the money beyond the tennis court removal for other off-site benefits and this could be used on the Grindlay property. Joyce Hersh raised the idea of cost shifting; that perhaps ConCom could use Dave Burke as one of the monitors, or that the monitoring could be paid for in phases over the five years, or that ConCom could also revisit the monitoring after a period of three years. Dave Burke said that he expects the trust to be rebuilt over time.

Jim Henderson said it is critical to start with a sound plan and a basis for ensuring that the plan actually is implemented and that it works the way it is envisioned. Jim Meadors said that even if all goes well with the monitoring that it will still be important to continue and therefore the funds need to remain available. Jim Henderson reiterated that the monitoring dollar figure was based on a reasonable estimate so that money needs to be set aside but that ConCom could potentially revisit the situation in the future. Peter von Mertens said that sufficient funds need to be set aside for what is a complex restoration initiative. Josh Grindlay wants the ConCom and LLCT to be reasonable in their requests and to think what it would feel like if they were in his position. He likes the idea of returning funds to him if not expended for their primary purpose rather than going to other projects and wants to be sure that both organizations consider this.

Ari Kurtz stated that he had been to a group meeting during the fundraising time for the Booth Property acquisition, prior to the sale to the Grindlays. He said he understands that the cost of the property to the Grindlays was significantly reduced by the contributions to the project and feels that a total cost of $40,000 is still not that large when compared with the reduced cost of the property. This reduction was based on the Grindlay complying with a set of standards as outlined in the terms of the CR. Josh Grindlay responded that the funds that were raised for this project also went to land that is now owned by the Town and the LLCT and not all were for the land they now own. Also he believes that the land has not been fundamentally altered or degraded.

Peter von Mertens discussed the possibility of closing the hearing and issuing an Order of Conditions at the June 24th meeting. Dave Burke said that since he and his client only received the latest proposal from the ConCom and LLCT on Monday, June 8th that it is too soon to close, they should have adequate time to respond to the latest proposal. Josh Grindlay again asked for a review of the monitoring requirement and asked that Dave Burke be allowed to be part of the effort. Dave Burke also questioned the “no-cut” zones as described in the latest proposal. He said that some of the desired sedges would be lost without regular cutting. Peter von Mertens said that a field delineation can be done for determining the edges of the “no-cut” zone and that other management protocols could be discussed for the pond edge maintenance.

Josh Grindlay said that if the hearing was continued until the June 24th meeting then he would be willing to allow the ConCom extra time beyond the normal three week period to issue an Order of Conditions, since there will be one month after the June 24th meeting until the next scheduled meeting. Given the Grindlay’s and Dave Burke’s concerns the Commission voted to keep the public hearing open and voted unanimously to continue it until 8:45 pm on June 24, 2009.

The Browns submitted a proposal to relocate a greenhouse from their house lot to their conservation restricted lot. The CR does allow for agricultural structures provided they do not impair visual access to the property, they are consistent with the values protected by the CR, and permission is obtained from the ConCom. It was decided that a site visit needed to be arranged to view the new location before the ConCom could take any action on this request. Tom Gumbart will set this up prior to the next meeting.

The Atkins have submitted a Request for Determination of Applicability for landscaping activities on their property at 5 Sandy Pond Road. This hearing is scheduled for 7:45 pm at the June 24th meeting. Paul Lazay has submitted a Request for Determination of Applicability for tennis court removal and planting and for new driveway installation at 69 Silver Hill Road. This is scheduled for 8:15 pm at the June 24th meeting. Pinnacle Corporation and Hunt Development are working on the new Hanscom Air Force Base Notice of Intent filing for housing redevelopment and this may be filed for the July 22nd meeting.