Letter: DEP permits destruction of silver maple forest

Letter to the editor:

To further public interest from the balanced article on the Belmont Uplands by Scott Voorhis ("State OK's Uplands site for housing," May 27), more needs stating about the forest location and the case itself.

Less than a mile from Acorn Park’s parking area in Cambridge, walking toward Belmont’s Little Pond, you come to the path into Belmont’s silver maple forest. The area reminds one of country landscapes of Vermont, Maine or New Hampshire - marsh-meadow, forest-shrub, and river-pond ecosystems with an abundance of wildlife.

This rich Upper Floodplain habitat is now slated for destruction due to a recent decision by DEP to permit a large 40B Housing Development, a project proposed by Pennsylvania real estate magnate, J. Brian O’Neill. The case now goes to Massachusetts Superior Court.

Meanwhile, a public meeting to discuss the Uplands case will be held Monday, June 7, at 8:15 p.m. at Belmont Town Hall.

Plaintiffs and wildlife assessors from Belmont and Cambridge have collected evidence throughout the past 6 years that significant wildlife exists on the Uplands center (Upper floodplain), value equal to habitat of the lower floodplain and therefore deserving of legal protection.

The Friends of Alewife Reservation has obtained a professional assessment of the rare habitat in the upper floodplain from Dave Brown’s Wildlife Services. In addition Patrick Fairbairn of Normandeau Associates contributed an assessment indicating the high value of this upper floodplain habitat as part of the DEP official record during Belmont’s zoning board hearings in 2008

In 2007, The Belmont Conservation Commission found that the project did not comply with wildlife habitat requirements in wetlands regulations, 310 CMR 10.05 (6) DEP’s regulations require replication of wildlife area be located in the same proximity to the waterways as the destroyed areas and contain the same type and quality of wildlife habitat features and same topography, and land elevations should replicate originals.

The plaintiffs believe that the developer failed meet performance standards for flood plain habitat replication. In addition, wildlife corridors allowing passage between natural undeveloped areas have been blocked by the 5 story buildings which cover virtually all developable space on the lot.

Plaintiffs believe that the developer’s analysis fails to meet performance standards in the wetlands regulations. Plaintiff Attorney Bracken states in his Superior Court appeal that “the Wildlife Habitat Plan of the developer was arbitrary, capricious and an abuse of discretion, and not in accordance with law”.

The regulatory framework used throughout the Hearings and testimony is the WPA MGL C.131,#40 (the “Act”) which specifies that DEP protections extend to flood control, storm damage, pollution of water bodies and preservation of wildlife habitat.

Significant testimony on the upper floodplain forest and the cross examination testimonies of specialists and witnesses from both parties and DEP were never once referred to by the DEP Judge or DEP Commissioner in the final decision, issued a full ten months after the decision due deadline.

The costs the four day hearings were substantial, estimated at approximately one hundred and fifty thousand dollars. Unsuccessful requests for access to the hearing tapes by Attorney Bracken suggest that the tapes are not available to the public. Plaintiffs requested back-up tapes during the hearing, but were denied. An amended decision was issued by the judge shortly after her original recommendation to the Commissioner, purportedly to remedy mistakes of reference and definition in the earlier decision recommendation.

In addition, at the time the DEP Hearing results were made public, the Judge in the case was transferred to a different DEP department, as was her assistant.

During the hearings, the Cambridge Conservation Commission issued a permit to developers of the small Cambridge portion of the project in a hasty process, despite their previously stated intention to wait until Belmont concluded its DEP process.

Email communication between the developer’s wildlife assessor and the DEP employee responsible for deciding the developer’s appeal of the Commissioner’s Order included a request by a DEP member to the Cambridge Conservation Commission agent to complete the Cambridge decision as soon as possible.

Requests for advice and favor in the communication had the appearance of impropriety, suggesting a relationship between the decision maker at DEP and the agent at the Cambridge Commission , and may have been prejudicial in this case.

In sum, a combination of mistakes, incompetence, and improper interference by DEP has wasted many taxpayer dollars and yielded a flawed decision which fails to carry out DEP’s charge to protect the state wetlands, and will destroy valuable natural assets, the upper floodplain habitat and rare silver maple forest.

Ellen Mass
President Friends of Alewife Reservation
(A regional Alewife stewarding organization for Cambridge, Belmont, Arlington)