Stay Issued On Herring River Fish House

By: William F. Galvin

Topics: Waterways

The fish house on the Herring River. FILE PHOTO

HARWICH –The state Department of Environmental Protection has placed a stay order on the fish house project on the Herring River, which was before the conservation commission last week for an after-the-fact notice of intent filing for work conducted there this spring.

The commission issued an emergency certification allowing the stabilization of the structure, which sits in the river, based on a structural engineer’s assessment that the building was imminently in danger of falling into the river and could cause public safety and navigational issues.

Conservation Administrator Amy Usowski told the commission last Wednesday night the work went beyond the “field changes” allowed under the order. “The purpose was to stabilize the building, not get additional access to the building,” she said.

The stay order was issued by DEP’s Office of Appeal and Dispute Resolution last week. The conservation commission had previously approved an order of conditions to the property owners, Francis and Debra Zarette, to remove and reconstruct the fish house, but it was appealed to DEP by abutters Gwynne and David Dak, who sought to overturn the local approval. DEP upheld the commission’s order, however, and the Daks appealed that decision to the adjudicatory level, where a hearing was held but a decision has yet to be announced.

There is a provision in DEP’s regulations which prohibits work being conducted while such decisions are pending, Salvatore M. Giorlandino, Chief Presiding Officer for DEP, stated in the order.

Attorney Dennis McMahon, a resident of Harbor Way, where the fish house is located, filed a claim with DEP based on those provisions. The hearing officer issued the stay while DEP conducts an investigation into the claim.

However, the commission moved forward with the after-the-fact hearing last week. Don Monroe of Coastal Engineering, Inc. whose company did not do the structural design for the emergency improvements but was hired to present the after-the fact notice of intent filing, said modifications from the emergency plan were made because of deteriorated piles and rotted floor beams that were instrumental to lateral support of the structure. Additional modifications were necessary to get the last steel beam under the structure.

“It was a pretty ingenious design given the conditions they had to work with,” Monroe said.

He said Michael Moroney of MVA Engineering Company is a structural engineer with 30 years of experience but not a lot of familiarity with the Wetland Protection Act. Still, he should have notified the commission of the changes in design, he allowed.

Usowski said there was no doubt in her mind the situation was an emergency as the building was listing toward the water. She said plans called for using eight piles and steel beams to stabilize the structure but 10 pilings were used.

“They went above and beyond what was asked for in the emergency request,” she said, but added, “I do think what is currently out there is an improvement over what was there before.”

Monroe cited a great reduction in the number of pilings historically used to hold the building above the river. There were as many as 52 but are now 10, reducing water turbulence, eliminating toxins from creosote pilings and improving shellfish grounds.

“The number of pilings is an improvement to the benthic environment,” Usowski agreed.

But she said the project does not meet the performance standards approved by the commission and recommended shellfish mitigation be required of the Zarettes and fines be imposed for going above and beyond the performance standards.

Conservation Commission Chairman Brad Chase also pointed out the work was conducted during fish spawning periods. He added the commission thought the first project, approving the reconstruction of the fish house, was a good one, but he admitted the work conducted was a little excessive.

Commission member Ernest Crabtree said he was surprised with the extent of the work, citing a veranda deck on the front, reconstruction of loading docks and the addition of a water line to the building.

Fran Zarette said he is a registered professional engineer and his reading of the commonwealth regulations allowed the water line installation under provisions for installing underground utilities without filing with the commission.

Daniel Dak, son of the abutters who made the adjudicatory appeal, charge the project proponents with “playing fast and loose with the bylaw.” Attorney McMahon said he represented a few abutters to the project, including the Daks, and took issue with the extent of the work, saying Zarette wants the commission to approve something that could not have been approved in the first place.

McMahon argued the after-the-fact filing of a NOI is not allowed under the town’s wetland protection bylaw. He questioned the right for any work to be done there while an appeal is still pending at the adjudicatory level. He suggested the commission withhold any approval pending the DEP officer’s investigation.

“This is smoke and mirrors. There's an automatic stay and they didn’t care about what the law says,” McMahon said. “The law is there for a purpose, it’s meant to be complied with. It’s an affront with someone coming into town and saying we don’t care about the law. There should be repercussions for offending the law.”

Zarette’s attorney, Glenn Wood, said it was not his client's intent to conduct excessive work. He said 97 percent of the work was within the emergency certification and the end result is a safer structure.

Officials have to work through some issues with town counsel relating to the stay order issued by DEP and what actions the commission can take at this point, Usowski said. Wood agreed to a continuance until July 19. Chase said the commission would talk about shellfish mitigation and fines for excessive work in that session.