Lee — Following months of expert consultations, site visits, and reviews, the town’s Conservation Commission unanimously decided that a Request for Determination of Applicability (RDA) was “non jurisdictional” as to a construction site on 200 Fox Drive; that is, the group determined the state’s Wetlands Protection Act did not apply to a proposed project involving the clearing of trees.
An RDA is generally made by a local Conservation Commission for smaller projects within a site’s 100-foot buffer zone and used to determine if the Massachusetts Wetlands Protection Act is applicable.
The October 15 decision stems from allegations that Kristen and Gary O’Brien allowed trees to be cleared in a wetlands area on the Fox Drive property in conjunction with their efforts to build a home, actions that would be contrary to state law. According to town records, the subject property is a 9.5-acre developable vacant tract purchased in 2016 by Business Investments and currently assessed at about $172,000.
At the group’s August 6 meeting, an engineer testified that wetlands are on the property, with about 17,000 square feet of trees cut from that area. That alleged information sparked a back-and-forth between some community members, the engineer, and the dais over possible vernal pools located just off the property’s edge.
Fast forward to October 15 when Conservation Commission members listened to expert testimony from David Cameron, principal and founder of Fleetwood Environmental Solutions, who investigated the site on October 6 to determine whether or not the alleged violations—clearing of trees on wetlands—occurred. “Based on the data collected during that investigation, we did not find a predominance of wetland vegetation in that recently cleared area,” he said. Cameron clarified that the area was cleared from late February to early May.
Although Cameron stated there was no direct connection between the cleared site and the wetlands in the area, a small portion of the woody vegetation clearing in the far northeastern corner of the property appeared to encroach on town land. However, he said he was not sure how accurate that finding was based on walking the site plan provided.
For the O’Briens, the decision offered a sense of “relief.” “I never thought, for once, that we were at fault,” Gary O’Brien told The Berkshire Edge following the decision. He said neighbors complained to town officials over the project, resulting in a “wasting [of] tax money to hire a third party to come in and delineate.”
A prior concern arose when the couple attempted another project at 39 Water Street, with that land similarly found to not be within a wetland resource area. Kristen O’Brien said the complaints are based on individuals who have “a personal issue” with the couple. See Lee Conservation Commission June 18 meeting minutes here.
“We’re very happy that this case has now been put to rest as well as the other ongoing cases brought against us,” Kristen O’Brien said. “The amount of time, money, and resources have been exhausting on top of the ongoing harassment.”
The RDA verdict could pave the way for the couple to build their dream home, a possible three- to five-year project, but Kristen O’Brien said they may go in a different direction for the property. “We’ve been meeting with several development companies about the possibility of donating this property for [the] development of some affordable housing,” she said. “So, at this time, we’re not positive on what route we’re going to take now. We’re just trying to take this all in before making a decision.”
