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HomeMy WebLinkAboutRe 083-2463 - 59 Oyster Cove Road Yarmouth 3.18.25 Attention!: This email originates outside of the organization. Do not open attachments or click links unless you are sure this email is from a known sender and you know the content is safe. Call the sender to verify if unsure. Otherwise delete this email. Dear Ms. Stantis: My office represents the Applicant in this matter. As you are aware, my office submitted a Request for Superseding Review based upon the Yarmouth Conservation Commission's failure to hold a public hearing within 21 days of filing the NOI. I received a copy of Attorney Winner's email to you yesterday regarding the Request for Superseding Review. This serves as the Applicant's response. The Applicant filed an NOI on February 5, 2025. The Commission scheduled a public hearing on the NOI on February 20, 2025. During the day on February 20, 2025, the Conservation Agent called my office and informed me that the Commission would not have a quorum and that the matter will be "automatically continued" to the next meeting of the Commission on March 6, 2025. At no time during the call was the Applicant requested to consent to waive her right to a public hearing within 21 days of filing the NOI. And at no time did the Applicant consent. The matter of consent was simply not discussed. Indeed, if I were asked if the Applicant consented, I would have said that I would have to confer with my client first and then respond. At 12:59 p.m. on Thursday, February 20, 2025, the Conservation Agent sent out an email stating the following: "Hello: Conservation Commission is unable to produce a quorum for this item on tonight's agenda, so it will be automatically continued to the next available hearing date which is March 6, 2025. I will put it first on the agenda. Please let me know if you have any questions." (Emphasis added). (See attached email chain.) The following day, the Conservation Agent sent an email stating: "Would you be willing to sign the attached 21-day waiver due to the quorum issue?" (See attached email chain and copy of 21-day waiver form). The email of February 21, 2025, was the first time the consent of the Application was requested. Upon receipt of the email, I conferred with the Applicant. The Applicant instructed me not to consent to a waiver and to file a request for superseding review. Attorney Winner accurately notes that, when the Conservation Agent informed me that the matter was being "automatically continued" to March 6, 2025, the first thing I noted in response was that I would have a scheduling conflict on March 6, 2025 because I was already scheduled to be at the Mashpee Conservation Commission that evening. I inquired whether it would be possible, as a professional courtesy, if the matter could be placed first on the agenda. My request for a professional courtesy regarding scheduling is not the same as the Applicant consenting to waive the statutory right to have a public hearing with 21 days. Indeed, in Garrity v. Conservation Commission of Hingham, 462 Mass. 779, 971 N.E.2d 748 (2012), the Massachusetts Supreme Judicial Court held that any waiver of timeframes under the Wetlands Protection Act must be "voluntary as well as intentional" and, further, that "the [A]ct also requires that any waiver and resulting deadline extension agreed to by an applicant be of reasonable and definite duration, in writing, and made a matter of public record." My inquiry about the possibility of being first on the agenda on March 6 was not a "voluntary and intentional waiver" by the Applicant. Indeed, the inquiry occurred in the same phone call as I was informed of the Commission's inability to produce a quorum. Thus, it was manifest that I had not communicated with the Applicant. Therefore, there could be no "voluntary and intentional waiver" by the Applicant. Moreover, and most significantly, the Applicant never waived her right in writing. This is evidenced by the fact that the Commission sent a waiver form on February 21 with a request that it be signed. It was not signed. Under the holding in Garrity, a wavier must be in writing. In the absence of a written waiver, there is no waiver. For these reasons, the Applicant contends that the Yarmouth Conservation Commission no longer has jurisdiction and that this matter is now properly before the Department on a request for superseding review. Thank you for your consideration. Brian J. Wall, Esq. Troy Wall Associates 90 Route 6A Sandwich, MA 02563 (508) 888-5700 bjw@troywallassociates.com ________________________________ From: Brian Winner <brian@mtclawyers.com> Sent: Monday, March 17, 2025 10:56 AM To: Lauren.Stamatis@mass.gov <Lauren.Stamatis@mass.gov> Cc: DiRienzo, Brittany <BDiRienzo@yarmouth.ma.us>; maissoun.reda@mass.gov <maissoun.reda@mass.gov>; Brian Wall <bjw@troywallassociates.com>; Greene, Karen <KGreene@yarmouth.ma.us>; Per C. Vaage <per@mtclawyers.com> Subject: RE: 083-2463 - 59 Oyster Cove Road, Yarmouth Ms. Stamatis, My office serves as Town Counsel to the Town of Yarmouth. Your email below was forwarded to me as I have been working with the Conservation Commission on this matter. You are correct that the Commission has not issued an Order of Conditions (under the local bylaw or Act). For the reasons detailed below, we believe the SOC request is premature as the Commission is still within its public hearing. We therefore respectfully request that you reject the SOC filing so that the Commission can proceed. If you request or require anything from us, e.g. a formal request on letterhead and/or motion, please let us know. The NOI was submitted on February 5th and scheduled for the Commission’s February 20th meeting for the opening of the public hearing. On February 20th, the Conservation Administrator, Brittany DiRienzo, contacted Attorney Brian Wall, the applicant’s counsel, at 12:14pm to inform him of an anticipated lack of quorum, and to request his consent to continue the opening of the hearing to March 6th. Ms. DiRienzo informed me that Attorney Wall acknowledged this and stated that the new hearing date worked better for his schedule since he was overbooked on the 20th. In fact, he requested to be first on the agenda on March 6. The Conservation Administrator agreed to Attorney Wall’s request to be the first matter at the next meeting. The Conservation Administrator sent Attorney Wall a confirmatory email immediately, see attached, and a 21-day waiver form was sent to Attorney Wall the next day. At the February 20th meeting, the matter was tabled to March 6 for lack of quorum as had been agreed to with Attorney Wall. See attached minutes of the Commission’s February 20th meeting. At the March 6th meeting, Commissioner Hoopes read the hearing notice into the record, but no representative was present for the agenda item at 5pm. The Chair put the item on hold to wait for a representative to appear. Later in the meeting, the Chair requested a 3-minute recess to review an email received at 4:55 p.m. by the Conservation Administrator, which was a copy of request for an SOC that was purportedly filed by Attorney Wall with MassDEP earlier that same day. The matter was then tabled again to March 20th. As I understand the regulations, 310 CMR 10.05(5) states, in relevant part, that: (a) A public hearing shall be held by the conservation commission within 21 days of receipt of the minimum submittal requirements… (b) Public hearings may be continued as follows: … 2. with the consent of the applicant, to an agreed-upon date, which shall be announced at the hearing… We believe that the Commission complied 310 CMR 10.05(5) and continued the matter to March 6th with Attorney Wall’s full knowledge and consent. We were, therefore, surprised to see that no one appeared that night on behalf of the applicant and shocked to learn that a request for an SOC had been filed. I was able to speak to Attorney Wall today to discuss this matter and, based on that conversation, I understand, he has a different perspective on his call with Ms. DiRienzo. I will leave it to Attorney Wall to address that if he wishes to. Please advise how you wish to proceed. Brian J. Winner Mead, Talerman & Costa, LLC 730 Main Street, Suite 1F, Millis, MA 02054 Phone (978) 572-2192 brian@mtclawyers.com <mailto:brian@mtclawyers.com> · www.mtclawyers.com <http://www.mtclawyers.com/> The information contained herein is confidential and may be protected by the attorney-client and/or other applicable privilege(s). It is intended only for the named recipient(s). If you are neither an intended recipient nor a person responsible for delivery to a recipient, you are hereby notified that any unauthorized use, dissemination, distribution or reproduction of the contents hereof is strictly prohibited and may be unlawful. If you have received the above transmittal in error, please delete the message and any attachment(s) hereto from your e-mail system and notify us immediately. Please consider the environment before printing this email. P From: Stamatis, Lauren (DEP) <Lauren.Stamatis@mass.gov <mailto:Lauren.Stamatis@mass.gov> > Sent: Wednesday, March 12, 2025 4:11 PM To: DiRienzo, Brittany <BDiRienzo@yarmouth.ma.us <mailto:BDiRienzo@yarmouth.ma.us> > Cc: Reda, Maissoun (DEP) <maissoun.reda@mass.gov <mailto:maissoun.reda@mass.gov> > Subject: 083-2463 - 59 Oyster Cove Road, Yarmouth Attention!: This email originates outside of the organization. Do not open attachments or click links unless you are sure this email is from a known sender and you know the content is safe. Call the sender to verify if unsure. Otherwise delete this email. Hi Brittany, I'm in receipt of a request for a Superseding Order of Conditions for the above referenced project. To date, I don't have record of receiving an Order of Conditions from the Commission. Has an Order been issued or is it still pending? Warm Regards, Lauren Stamatis Program Coordinator II MassDEP Wetlands Program Southeast Regional Office 20 Riverside Drive Lakeville, Massachusetts 02347 857-278-1345 Lauren.Stamatis@mass.gov <mailto:Lauren.Stamatis@mass.gov> ail. Hi Brittany, I wanted to check in and see if this matter was heard by the Commission last week, and if so, what was the outcome? Thanks for your help. Regards, Brendan Brendan Mullaney Section Chief Waterways Program Southeast Regional Office Phone: (857) 207-2611 Email: brendan.mullaney@mass.gov <mailto:brendan.mullaney@mass.gov> 20 Riverside Dr Lakeville, MA 02347