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Mass/Dzierzeski: Trial of Silver Maple Forest begins
By Ellen Mass/Stanley Dzierzeski
Original Opinion March 3, 2009 from Belmont Citizen-Herald at

Belmont, Mass. - The first round of environmental trial sessions concerning the fate of the silver maple forest concluded last Wednesday after a full day session of adjudicatory Hearings before Officer Mackay based on the Coalition to Preserve Belmont Uplands and Winn Brook Neighborhood's Petition to DEP for a Determination of Applicability (DOA) of Chapter 91 (the Tidelands Act) against the O'Neill Properties housing project on the "Belmont Uplands."

The Coalition requests DEP to assert Chapter 91 jurisdiction over the O'Neill project and require him to apply for a license only if the DEP determines that the development provides greater public benefits than present natural functions of the land, which is now open space, silver maple forest and wildlife habitats. A Chapter 91 license is required for all projects on tidelands, including tidelands that are filled, if they were historically tidal. This is the second time Attorney Thomas Bracken has challenged DEP on the need to enforce tidelands regulations.

Stephen Kaiser, a civil engineer and expert in tidelands issues, presented testimony for the Coalition that, based on his review of ancient maps, plans, charts and reports, the Little River once was tidal, subject to flows from the Boston Harbor, and crossed a portion of the project site. The Little River was filled in by the MDC (now DCR), in the early 1900's and relocated south of the Uplands. Dr. Kaiser presented evidence that the project site is not "landlocked", and thereby not exempt from Chapter 91, because the present channel of the Little River flows, without interruption by public ways which cross over bridges, to the Alewife Brook, then to the Mystic River and finally into the Boston Harbor.

The O'Neill group presented two witnesses from the Tetro Tech Rizzo firm and one DEP witness who disputed Mr. Kaiser's conclusions. However, the witnesses all agreed that a 1904 report of observations on tidal variations in the Alewife Brook/Little River and Fresh Pond marshes area was the most relevant document. Numerous exhibits of plans, maps, charts and reports were entered into evidence. The Hearing Officer took copious notes, although a reporter was present, and asked questions of each witness which indicated that she fully understood the issues and the arguments being made, and at the end of the hearing she thanked all the parties for being so civil. After receiving a transcript of the hearing, the parties will prepare briefs which are due on April 16. The hearing officer will issue her Recommended Decision on May 14, and the DEP Commissioner is expected to issue her Final Decision by the end of June.

DEP Presiding Officer Beverly Coles-Roby will then conduct an adjudicatory hearing on March 10 on the Belmont Conservation Commission¹s appeal of the DEP Northeast Regional Office¹s Superseding Order of Conditions that allows the project to go forward. Scott Horsley, a hydrologist, and David Webster, an environmental scientist and member of the Commission, will present testimony for the Commission on the adverse impact of the project on storm water retention and flooding. Charles Katuska and Patrick Fairbairn, consultants retained by the Coalition, will present evidence on the harm the project will cause to wildlife habitats. Ellen Mass will give testimony on the negative impacts the project will have on the abutting Alewife Reservation.

The trial in the Land Court on the Coalition's appeal of the Chapter 40B comprehensive permit issued by ZBA is scheduled for March 18, 19 and 20. The Coalition alleges that the permit was improperly granted because the zoning requirements that the ZBA waived are designed to protect the public health and safety and serve the common good. Enforcing these requirements outweighs the regional need for affordable housing in view of the fact that Cambridge far exceeds the minimum 10 percent requirement and there are alternative available sites in Belmont more suitable for affordable housing than the Uplands.

On March 2, the Cambridge City Council heard testimony from these professional consultants and various environmental organizations who will share their wildlife experiences and knowledge of the area with Councilors, noting the importance of the woodland area and measures to protect it. The Resolution asks that Cambridge Conservation Commission not give permits to the applicant and consider all aspects to the case while it is going through state DEP hearings and Land Court by Belmont residents.

Ellen Mass is President of Friends of Alewife Reservation. Stanley Dzierzeski is chairman of Coalition to Protect the Belmont Uplands and Winn Brook Neighborhood. He lives on Statler Road.