Thursday, August 26, 1999 Older Editions

Builders to Attorney General: Sink the wetlands bylaw

By Rebecca Lipchitz

Local builders hoping to sink the local wetlands bylaw passed by Andover Town Meeting this year have taken their case to the Attorney General.

On behalf of North East Builders Association of Massachusetts Inc., attorney Howard Speicher of Davis, Malm & Dagostine, P.C. in Boston told the AG in a letter dated Aug. 16 that the wetland bylaw (Articles 75 and 76) is "invalid," "arbitrary" and "exclusionary."

Speicher says the mechanism in the bylaw that requires the developer to pay for a project review by an independent third party is a mechanism already deemed illegal by the AG, and that the law exempts everyone who has already built in town.

"I'm sure this was a major factor in getting it passed, because everyone voting on it is not subject to it. It's exclusionary to say 'we're going to make it hard for anyone else to build a house,'" Speicher says.

A provision in the bylaw that allows Conservation Commission members to exempt other applicants is also unfair, he says.

"If they catch someone they don't want this to apply to, they've given themselves the right to completely waive the bylaw without any statement of standards or provisions. It's arbitrary and applies to whomever the Conservation Commission wants it to apply to," Speicher says.

Conservation Commission Administrator Jim Greer says he was surprised to read the letter and thought the bylaw had been perceived as "quite moderate" compared to other towns' wetlands bylaws.

The Attorney General has 90 days to review town bylaws once they are submitted, and the bylaws are due to the AG within 30 days after Town Meeting.

Andover apparently missed its deadline, since Annual Town Meeting this year ended May 11, and the AG received the wetlands bylaw June 16, according to a spokesman for the Attorney General's office. The AG's deadline for review of the bylaw is Sept. 14.

While developers are not required to pay for an independent consultant under current bylaws, before the new bylaw is officially approved by the AG, conservationists have asked developers to pay for the consultant voluntarily.

While developers have been cooperative, the additional step of consultants's review and the time it takes to analyze their reports may have resulted in the delay of several more involved projects.

"By the time we get this professional review, it seems to bollix up the whole procedure," says ConsCom chairman Robert Pustell.

Despite the delay, Pustell says the consultant's review is valuable enough to make it worth the wait.

"We used to have to depend entirely on developers to say they have done the job. Some reviews are showing they didn't do a complete job," Pustell says.

ConsCom vice-chairman Don Cooper says the way the system operates now is irrelevant because the new bylaw is not officially in effect.

If the bylaw were to be approved by the AG, Cooper says the contracting of a consultant would happen no more than once a year; the fee would be charged to the applicant at the beginning of the permit process; and administration of the process wouldn't take the extra time it does now.

"It's really premature to be drawing a conclusion," he says.

ConsCom member Paul Finger agrees, and says he expects the system to work smoothly when it's officially in place.

"This is really an interim period," he says.

He adds that many of the recent projects, which have taken longer to review than others, are complicated and involve several neighbors, and would take additional review time regardless of the time it takes to review a consultant's reports.