TEWKSBURY – When are wetlands, wetlands? It’s not as easy a determination as one might think. Are there wetlands on the property at 60 Chivas Circle or not? Charles Pastorello and his neighbor Manuel Alves have been seeking the answer to that question for a few years now. In June of 2002 Tewksbury conservation officials told them that there are wetlands on the property, but by November of the same year they were told that there were no wetlands.
The trouble began in the spring of 2002 when Alves went to put in an above ground swimming pool in the back yard of his Maplewood Road home, which backs up to the back yard of his Chivas Circle neighbor. His neighbors alerted Town officials that it was too close to wetlands and that trees in the buffer zone had been cut down. Conservation Administrator Walter Polchlopek visited the site and sent a letter in June of 2002 stating that Alves needed to file a Request for Determination with the Tewksbury Conservation Commission because the proposed pool location was located within the buffer zone that is less than 100 feet from the wetland.
On July 1st 2002 Polchlopek approved the application for the pool with the handwritten condition that Alves plant trees in the left rear corner of the lot as discussed, and a building permit was issued the next day. Trees were planted in the northwest corner and the project continued.
When the Massachusetts Department of Environmental Protection contacted the Town, Polchlopek visited the site once again. This time he tested the soil. He reported in a November 2002 memo that his on-site inspection revealed no wetland area that would impact the Alves project. Polchlopek explained (in a 2005 deposition for a lawsuit between the two neighbors), “In using the three parameter method for wetland delineation, my findings indicate that this area has soils that are not hydric and in addition the area lacks hydrology characteristic of a hydric soil, therefore, it is not a wetland.”
So how do Town officials explain the discrepancy in the two reports that were completed only five months apart? The spring visit was a cursory site visit, an observation of the land in question. The second visit, in the fall, included the soil testing and a more in depth review of the land. Community Development Director Steve Sadwick said that the two different types of visits could account for different results. He expressed his confidence in Polchlopek’s experience and ability to make wetland determinations.
Polchlopek explained that soil, vegetation and water must all be scientifically evaluated. There are types of vegetation and soil that are typical of wetlands and a water evaluation requires that a water table be high with a certain percentage of days when the water comes to the surface during the growing season.
“It takes more than one season to evaluate the wetland relative to hydrology. Technically it is supposed to be a year to ten years,” explained Polchlopek in the deposition.
In spite of knowing that a good portion of their back yard is a wetland, the Pastorello’s have now submitted a proposal for the construction of a patio with new drainage, stone wall, shed and grading, some of which is within the 100 foot buffer zone, but outside of the 25 foot no disturbance and additional 25 foot no build zones. Pastorello said that they bought the property knowing that the back yard was wetland and it would severely limit what they could do with the yard. He and his wife want the wetland area declared on their property and the buffer zone enforced and protected. They also want their project, which they believe conforms to wetland regulations, to be approved as soon as possible.
The Public hearing for the proposed project at 60 Chivas Circle was brought to a recent meeting of the Conservation Commission and after some discussion and with several questions unanswered, it was postponed until the September 5th meeting. The reasons for the postponement were that it is still unclear if there are wetlands on the property, and that a full topography map of the site was requested. A final decision on the status of the land is set for the September 5th Conservation Committee meeting.
The final determination of whether or not there are wetlands, and where, will have a direct impact on the project for the Pastorello’s. If wetlands are found to be too close to the area they intend to work on, then the improvement project could be denied, and if there are no conservation issues the project could go forward.
The outcome of the wetland issue now has no bearing upon the Alves backyard pool. According to Polchlopek’s deposition, if the Chivas property is determined to have wetlands, it will not affect Alves because “It’s an exempt activity. Even if the area ended up being a wetland, it’s in excess of the 50 feet that’s indicated in the exemptions.” The fence that has been installed would not have to come down either, as it does not interfere with wildlife because there are openings underneath it.
Copyright 2007 CBLEGVOLD. All Rights Reserved.
