WESTFIELD – A Hampden Superior Court judge has 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 city 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.
Mark S. and Violet Hall 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 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 Halls filed a complaint in July of 2012 seeking a judicial review of an enforcement order issued in June of 2012, modifying the 2012 March order. The Halls contended to the court that the July 2012 order was made in an “arbitrarily and capricious” manner and was in error of the wetland laws. The Halls also contended that the statute of limitations pertaining to the commission’s order had expired and that the land was in agriculture use, meaning that normal maintenance and improvements were exempt from the state law.
New complaints were filed with the Conservation Commission in the fall of 2011 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.
The Halls contended that they submitted a USDA natural resource conservation service plan to the commission and that the USDA planner supported their claim that the property was exempt from the wetland laws due to fact that it was being used for agricultural purpose and that the dam and pond were in place for 40 years prior to the board’s issuance of the enforcement order.
Judge Josephson found that the evidence, photographs submitted by the Conservation Commission, showed that the Halls, in 2011 and 2012, added fresh dirt to the dam, making it larger and that the Halls failed to file a request for an agricultural exemption before the commission issued the 2010 determination and the subsequent enforcement orders.
Josephson, in her decision dated April 19, 2013, also found that the commission acted within the scope of its authority which allows the board to determine what is acceptable activity on a property pursuant to its jurisdiction.
