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Woburn Superior Court Civil Action case
Where is the Evidence?
Superior Court Hears Silver Maple Forest
Thank you to Attorneys
March 12, 2011 press release
Several of we Cambridge residents came to the Superior Court in Woburn this past Wednesday to hear arguments of Thomas Bracken representing the Coalition to Preserve the Belmont Uplands and Winn Brook Neighborhood, and Friends of Alewife Reservation, together with Faustino Lichauco of the Belmont Conservation Commission. Special thanks to our Attorneys who are appealing the Error of Law in dismissing all evidence, testimony and cross-examination of professional witnesses. Both attorneys noted that the Decision in favor of DEP by Judge Roby in 2009 is in violation of Administrative Procedures Act 11-8. This Act states that all records of hearing must be considered in a final judgement.
They also appealed the Judge's denial of flood prediction information of noted firm Horsley and Witten Inc. based on developer's questionable storm design plans.
Ken Salinger of the Attorney General's office and representing DEP for the developer, stated the wildlife assessment, based on where the building footprint lay, (which covers most of the wooded forest), was not necessary to do. In addition, he argued that the developer had no obligation to conduct any flooding assessments and that flooded basements are not evidence. He said just because evidence is not recorded, does not mean it is not used, even though it is live testimony.
It was shocking for us to hear that DEP Hearing tapes were lost for nearly all 10 months of deliberation, so that plaintiffs were denied its transcript benefits and were given misinformation about the missing tapes. (First 3 tapes were found, then later 5, and so on from DEP authorities after the decision fact.) Bracken said it was a waste to pay for tapes after the Judge had refused to consider the witnesses and testimony and Plaintiffs concurred.
Lichauco made a strong case in behalf of the witnesses who were nearly all professionals. One witness was employed as a federal storm water regulator, yet his testimony was omitted.
Bracken brilliantly demonstrated that the building plan failed to replicate the amount of destroyed wildlife habitat and clearly fell short of regulations required by DEP. He also noted, that because of omissions and refusal to consider the entire record, the Belmont Uplands silver maple case should be stricken from the record. It may be remanded back to DEP for further review and possibly back to the Belmont Conservation Commission to be re-considered.
The fundamentals of the case are based on clearing of trees and filling in the wetlands, but we would be hard-pressed to find these environmental essentials recognized by the developer, DEP or the Attorney General, although in this case, all 3 parties testify as one entity.
Ellen Mass, Sylvia Gilman, Andrea Wilder, Judy Johnson – Cambridge residents.
If you want the full hearing notes, write us and we will send them to you.
If you 'd like to come on Monday AT NOON to deliver the 1000 petitions to the state house and EOEEA offices, please call to let us know.