Property Owners Likely To Appeal
CHATHAM – More than a year after 62 trees were illegally cut down on a coastal bank overlooking the Mill Creek marsh, the conservation commission last week issued a final enforcement order requiring restoration of the area.
It seems likely, however, that the property owners, Bryan and Maria Donohue, will appeal the order, following a contentious meeting last week during which Marie Donohue called the commission's order “evil punishment.”
The Donohues wanted to make changes to the order at last Wednesday's meeting, but Commission Chairman Janet Williams said the document was the result of months of discussions, and had already been revised to address objections raised by the property owners' attorneys.
“I don't think we're inclined to go through that exercise yet again,” she said shortly before the commission voted unanimously to approve the enforcement order.
The clear cutting, without commission notice or approval, was discovered July 3, 2019 after complaints by neighbors. Conservation Agent Cally Harper found a total of 62 trees had been cut, some large canopy trees as big as 24 inches in diameter, from the 107 Taylor's Pond Rd. property. Conservation officials called the cutting “egregious” and devastating to the habitat, which is protected under the state Wetlands Protection Act and the Chatham Wetlands Protection Bylaw.
The commission referred the case to the state department of environmental protection last fall. After holding an on-site inspection, DEP took a backseat, Williams said, preferring that the situation be resolved locally.
The commission has been working with the Donohues to develop a restoration plan for 13 months. An initial remediation plan was rejected last September. A new land management plan developed by a different firm, Blue Flax Design of Harwich Port, was presented to the commission in March and its general provisions were endorsed in May.
In June and July, however, the Donohue's attorneys, McGregor and Legere of Boston, objected to numerous provisions in the commission's draft enforcement plan, asserting that it went beyond the agency's legal authority and could constitute a regulatory taking of the property. In a July 17 letter to the commission, attorneys Gregor I. McGregor and Olympia Bowker wrote that 19 conditions exceeded the commission's authority and said if the order was not amended, the Donohues would file suit. They suggested that a letter formally approving the management plan, rather than an enforcement order, would be sufficient; that was rejected by the commission.
After approving it on July 1, the commission rescinded the enforcement order Aug. 24 following an executive session with town counsel. Several conditions were withdrawn, including a requirement for a conservation restriction the commission had seen as a way to ensure compliance with the land management plan. Some of the changes were made in the interest of moving the process along and getting the restoration underway, Williams said. “Which is really the focus of all the activity anyway.”
Since most of the trees were cut to one or two feet, the management plan calls for allowing them to naturally regenerate from the stumps; by last fall, some were already sprouting new growth. A few dozen native trees and shrubs will be added to supplement the existing vegetation, and invasive species will be removed.
To ensure compliance, the commission is requiring that the enforcement order be recorded with the property's deed. That way future property owners would be aware of the obligation, Williams said. Because the plan depends on allowing the trees to regrow, the commission was adamant about the provision remaining, since it will take 25 to 30 years to restore the tree canopy to its original condition, Williams said.
“This happened in an area where it simply should not have happened,” she said.
The Donohues continued to object to provisions of the order at last week's meeting. Attorney Nathaniel Stevens said some, such as a requirement that a fence be installed, devalue the marsh-front property. He said the Donohues were going above and beyond what was required, by agreeing to the invasive removal, for instance, and asked that the commission consider further refining the order.
“They would hate to spend time litigating this matter and further delay the time this resource area could be restored,” he said.
Maria Donohue asserted some of the provision were “out of bounds legally,” and if the commission was unwilling to address the concern, “then we'll move forward to the next step.” She suggested a private meeting to work out the issues.
“This is an enforcement order. It's not a negotiation,” responded Williams.
Donohue said the property's appraised value has already dropped and the order will make it difficult to do future work on the house that the couple planned.
“We made a mistake, we said we were sorry,” she said, adding the order amounted to “evil punishment” of the owners by the commission.