Great Barrington — In a packed, tension-filled Town Hall meeting room the Zoning Board of Appeals (ZBA) last night (February 10) voted 6 to 1 to uphold Building Inspector Edwin May’s December 2014 order directing property owner Lynn Hutchinson to stop cutting trees on her land next to Long Pond, a public water supply, in violation of town zoning code.
ZBA member Michael Wise voted against.
Hutchinson, along with her husband Brian Schwab, had been served a third cease and desist order to halt work as part of a state-sanctioned Forest Cutting Plan on about 10 acres at 263 Long Pond Road, because the work was to be undertaken within a water protection overlay zone. Town code prohibits any work not related to “operation and maintenance of the water supply” within 400 feet of Long Pond, which is the water source for the entire Village of Housatonic and is also under Department of Environment Protection regulations. Swimming, boating and fishing are also prohibited on Long Pond.
Hutchinson and Schwab had already begun to cut a slot down to the Pond so that they could see it from the house that sits nearer the road on the 35-acre property. The area had been cut in the past by previous owners, but had started to grow in. Hutchinson received two previous orders from May since purchasing the property in 2013, and this third order was in response to an attempt to use a Forest Cutting Plan approved by the Department of Conservation and Recreation (DCR) to sidestep local regulations.
Hutchinson and Schwab have undertaken some restoration to the area they altered as dictated by the Conservation Commission.
The property was recently put back on the market for $1,375,000 after being pulled last fall when prospective buyers learned in newspapers of the owners’ trouble with the town. An appeal of an earlier cease and desist order and subsequent ZBA ruling is still pending in Boston.
Hutchinson’s attorney, Frank Di Luna of Woburn firm Murtha Cullina, argued that the state-sanctioned Forest Cutting Plan “trumps your local regulations.”
“I think what we have here is a clash of statutes,” Di Luna added. “The underlying principal is that the Forest Cutting Plan is an agricultural pursuit.” He cited a state law that prohibits “unreasonable restriction of agriculture.”
That was the meat of Hutchinson and Schwab’s appeal, and for which forestry consultant Edward Denham of New England Woodland in West Stockbridge, and Tom Ryan, a state service forester, were present. Denham, who has 40 years of consulting experience, explained that the agricultural plan is to make a sugar bush stand at the site, and that to do so, the understory and deadwood must be removed. He said the plethora of invasive species in the area eventually get up into the tree canopy and kill trees unless removed.
Denham further said that he had consulted numerous times about properties next to public water sources, and that it would be disastrous for both him and Ryan to “propose something that would damage a water supply.”
“If I thought there was going to be a problem I would tell Lynn, I’m walking from this project,” Denham said.
Ryan, whose district includes 18 towns at the southwest corner of the state, said he “had never seen a cutting plan being scrutinized to this degree,” and noted the right-to-farm bylaw. He said that altering the land for agriculture is “something that’s been happening around this water supply for decades.” He was “puzzled as far as how it got to this degree.”
Michael Wise reminded him. “It got to this place because of how all this got started,” he said, referring to earlier, unapproved cutting near the Pond, and the two cease and desist orders that followed. Also, some of the cutting trespassed into land owned by the Great Barrington Land Trust and Housatonic Water Works, which pumps water from the Pond into the water supply.
“There is no room for error when you’re dealing with a public water supply,” said May’s attorney, Richard Dohoney.
Dohoney said that May was using the only tool in his power when he issued the order, and noted that there was “insufficient regulation around public drinking water in Great Barrington until this zoning code was put in.”
“A lot of compelling evidence was heard today,” Dohoney said of both foresters’ explanation of the cutting plan, which he said was thoughtful, “but not sufficient to meet this very high standard.”
However, that thoughtful plan, in which good forestry practices can actually help a water supply if done properly, appeared to have moved Wise. He wondered, “is this unreasonable regulation of agriculture? That the landowner has made an effort to hire a forester and go through the DCR makes a difference.”
Ryan pointed out that in 1985 Housatonic Water Works had made this same proposed cut through the forest on a section of nearby land next to the reservoir and harvested 40,000 board feet of white pine. Later, by phone, Ryan said a cutting plan is designed to protect water quality. “But I can see why people are scared,” he added, noting that the situation is unusual because the town doesn’t own the land and the Water Works does not control the entire area around the reservoir.
ZBA member Madonna Meagher was concerned about the use of chemicals to deal with invasive species, but Ryan assured her that had not been proposed, and Denham said, “I do not believe they have any intention of using chemicals.” Indeed, the cutting plan says the invasive species will be removed “by physical/mechanical means.”
And in response to a question by member Kathy Kotleski about the effect on water quality, Ryan said the effect would be “neutral.”
“The town agreed that we needed this extra band of 400 feet as a zone of protection,” said Vice Chair Carolyn Ivory. “I don’t see how we can disregard that.”
“It opens the door,” said ZBA alternate Donald Hagberg.
ZBA alternate John Katz wondered if the work could be done out of the water protection zone, but forester Ryan said that most of the proposed work falls within that zone. Di Luna said the entertainment of any such plans is “not going to take place tonight.”
The Board read statements in support of May’s order by the Selectboard, Planning Board, and Conservation Commission. The Board of Health’s statement indicated concern for the effect on the water supply.
Yet there was a struggle to make the deciding motion and no one wanted to do it. Everyone turned to Wise, who said the motion he might make, to allow good, supervised forestry practice in the protection zone would not be popular, given that the four other boards had voted to uphold May’s order.
“I’m sticking my neck out here a bit,” he said.
Finally, Katz made the motion to uphold the cease and desist order, but a second to the motion was slow in coming, and right before the vote, the ZBA had circled back to the reason they were there: the water supply.
“I can also imagine a lovely forest practice,” Meagher said. “On the other hand, we’re here because of where we are with the owners of the property, and I lost a little bit of trust there.”
Katz also said he was “concerned about the track record of the petitioners in the past.”
“It’s scary,” said Kotleski, “because if something goes wrong, then where are we? And that’s why the original 400 foot buffer was put there.”
Chairman Ronald Majdalany had recused himself, and John Katz was an alternate in his place.
