WESTFIELD – The Conservation Commission discussed its option with Law Department litigator William O’Grady last night following an April decision handed down by a Hampden Superior Court judge who ruled that the Conservation Commission acted within its authority under the state Wetlands Protection Act and the city Wetlands Ordinance when it issued enforcement orders to a Tannery Road couple.
Judge Bertha D. Josephson affirmed that the Conservation Commission’s enforcement order, issued in June of 2012, was valid and denied the petition of the Tannery Road residents.
The Conservation Commission voted last night to enter into executive session to discuss pending litigation and the board’s strategy to resolve that case. O’Grady said that conducting that discussion in the public part of the meeting could compromise the city’s strategy.
The case was filed in February, contesting the board’s actions for several years, and a decision, finding that the commission acted within its authority under state environmental protection law and city wetland ordinance, was handed down on April 19.
The discussion at the meeting last night provided O’Grady with his marching orders in terms of the board’s plan to bring the property into compliance with state and city environmental requirements.
Mark S. and Violet Hall filed a civil action naming the Conservation Commission, collectively and individually, as the defendants, requesting the court to vacate the board’s enforcement orders and to “remand” the board from issuing further enforcement orders.
Local Conservation Commissions are created under state law and serve as an extension of the state Department of Environmental Protection. Local communities are required to enforce state wetland protection laws, but can also enact local environmental ordinances and by-laws.
The Halls and the Conservation Commission sued and counter sued each other over an enforcement order issued by the board in response to action performed by Hall at his Tannery Road property, located near the Southwick line and within the protected area of Kellog Brook, a tributary of Great Brook.
The Halls filed for a request for determination in July of 2010 which would allow the Conservation Commission to decide if the Hall’s property, used for their agricultural business, was subject to state and municipal wetland laws. The Halls sought an agricultural exemption from the state regulations which would allow for certain activities in or near wetlands and associated buffer zones.
The board issued a determination of applicability in August 2010 that did not include language to address a pre-existing earthen dam that the Halls had reinforced to increase the level of the pond created behind the dam. The board then issued an enforcement order in March of 2012 which included provisions to return the dam to its original configuration.
The Conservation Commission, in the fall of 2011, issued new enforcement orders charging the Halls with filling the floodplains and wetlands with soil, trash, metals and debris, as well as erecting a new structure in the protected zone, erecting fencing, allowing livestock to damage the stream and wetlands, dumping lawn clippings, leaves and yard waste, logs, tires and other trash, burying debris, fuel tanks and trash, cutting trees and removing vegetation within the protected zone and damming the stream, thereby altering the natural hydrology of the property.
That complaint, heard at meetings in September, October, November and December of 2011, as well as in January, February and March of 2012, resulted in the March 2012 enforcement order that required the Halls to cease and desist activity in the 100-year flood zone of the brook and wetland buffer zones, that the Halls hire a qualified wetland consultant to delineate the wetlands and submit a restoration plan and that all of the restoration work be completed no later than October 27, 2012.
The commission members conducted a site inspection on June 4, 2012 and voted at the June 12 meeting to amend the enforcement order, listing required restoration activities with deadlines for that work to be completed.
