From Wicked Local Newspaper – January 18, 2015
byline - Doreen Leggett
“Conservation commission chairman Judith Bruce said commissioners have received a “deluge” of comments already, but are looking forward to the public hearing to hear from more concerned residents during a meeting that is virtually entirely set aside for Kent’s Point. The agenda includes items that range from fire prevention, to access, to history, to dogs.
“People have very strong feelings about this,” Bruce said.
She added commissioners often have to weigh getting people out to enjoy public lands against having natural properties loved and used so much that their character is changed.
“Our conservation areas are not wildlife refuges*, they are meant to be enjoyed by our citizenry. It’s a balance,” she said.”
*Note: Clearly the Conservation Commission Chair is unconcerned about conservation and preservation rules, laws, & bylaws regulating the Conservation Commission's legal management requirements of the largest, most unique property under her jurisdiction. See below for proof of this:
TO: Nancymarle Schwinn, Town Executive
FROM: Michael D. Ford, Town Counsel
RE: FROST FISH LANE
DATE: September 21, 1994
You have asked that I respond to Mr. Sherm Reed's memo to Dick Houghton and me dated August 15, 1994, a copy of which was filed in the
Selectmen's Office on August 26, 1994 and specifically to the questions raised therein by Mr. Reed regarding access to the Kent's Point property.
First, I refer you to my memo to the Insurance Advisory Committee dated November 20, 1990, copy attached which deals with the question of
access. Further, it is my opinion that the Town's right to use Frost Fish Lane, as indicated in said memo, is not unlimited but rather is subject to the doctrine of "overburdening" as ennerated by the court's of the Commonwealth. The resulting limitations on the Town's access is that the Town may not use Frost Fish Lane in a manner beyond what Ms. Kent, the Town's predecessor in Title, could have used it for an appurtenant right to her land. To do so would be to "overburden" the easement right conveyed to the Inhabitants of the Town by Mrs. Kent.
Therefore, any Management Plan developed by the Conservation Commission, for the use of the Kent's Point property should be guided by
the access limitations of Frost Fish Lane.
cc: Richard Houghton
Orleans Town Clerk
COMMONWEALTH OF MASSACHUSETTS (an OCR’d copy)
BARNSTABLE, SS. SUPERIOR COURT
EDWARD J. SMITH, ET AL
vs AGREEMENT FOR JUDGMENT
BOARD OF SELECTMEN, TOWN
OF ORLEANS, ET AL
Now come the parties in the above-entitled matter and here by agree to settle this matter with Judgment to enter as follows:
1. The Defendants have a right of way over Frost Fish Lane for ingress and egress to the Kent's Point Conservation Area.
2. The Defendants may allow the public to use Frost Fish Lane for all purposes for which ways are commonly used in the Town of Orleans for access to Kent's Point Conservation Area for conservation and passive recreation purposes in accordance with the Kent's Point Conservation Area Management Plan dated March, 1995**. The Defendants acknowledge that the current right of access does not include access for passenger buses or passenger vans for hirer.
**Note: The Town disregards this section because they purposely did away with the 1995 Kent's Point Management Plan. By doing away with it they eliminated virtually all management requirements, as well as any abutter & neighbor input. Further, they refuse to stop Kent's Point visitors from using the portion of Keziah's Lane running from Monument Road to Frost Fish Lane (the legal access).
Keziah's Lane is a private road. (which includes the concurrent portion from Frost Fish Lane to the driveway leading to the parking lot) It is maintained and paid for solely by the residents of the road. The town pays nothing but refuses to take any part in stopping the unauthorized use (by Kent's Point visitors) of the road. The mostly elderly residents have to put up with speeding, arrogant ("you can't stop me") dog owners.
3. The Defendants may construct and maintain a twenty car public parking area together with a two car handicapped parking area within the Kent's Point Conservation Area.
4. The Defendants may from time to time perform maintenance on and make improvements to Frost Fish Lane for the purpose of maintaining said road in a safe and passable condition provided, however, that the width of said road shall not be increased. Without limiting the generality of the foregoing, the Defendants agree to maintain the existing improvements, including, the existing speed bumps, speed limit signs and drainage facilities.
5. Neither the Plaintiffs nor the Defendants waive any rights that they may have with respect to any changes in the use of Frost Fish Lane and the Kent's Point Conservation Area for any additional purposes or to any greater extent other than as set forth herein.
By their Attorney,
By their Attorney,
Thomas M. Younce, Esq. Michael D. Ford, Esq.
BBO #550347 P. O. Box 1593
Michelle Belmont, Esq. Orleans, MA. 02653
BBO #566777 72 Main Street
(508) 255-0716 P. O. Box 665
West Harwich, MA. 02671
Relevent portions of the duties of the Conservation Commission:
MGLA Ch.40, Section 8C:
Conservation Commission; establishment; powers and duties
Section 8C. A city or town which accepts this section may establish a conservation commission, hereinafter called the commission, for the promotion and development of the natural resources and for the protection of watershed resources of said city or town. Such commission shall conduct researches into its local land areas and shall seek to co-ordinate the activities of unofficial bodies organized for similar purposes, and may advertise, prepare, print and distribute books, maps, charts, plans and pamphlets which in its judgment it deems necessary for its work. Among such plans may be a conservation and passive outdoor recreation plan which shall be, as far as possible, consistent with the town master plan and with any regional plans relating to the area. The commission may, from time to time, amend such plan. Such plan shall show open areas including marsh land, swamps and other wetlands, and shall show which areas are subject to restrictions or wetland zoning provisions and any other matters which may be shown on a plat index under section thirty-three of chapter one hundred and eighty-four. Acquisitions of interests in land under this section and other municipal open lands shall be shown thereon as well as lands owned by other entities kept open through any legal requirement. Such plan shall show other areas which public necessity requires to be retained for conservation and passive recreation use. It shall keep accurate records of its meetings and actions and shall file an annual report which shall be printed in the case of towns in the annual town report. The commission may appoint a director, clerks, consultants and other employees, and may contract for materials and services within available funds insofar as the same are not supplied by other departments. The commission shall consist of not less than three nor more than seven members. In cities the members shall be appointed by the mayor, subject to the provisions of the city charter, except that in cities having or operating under a Plan D or Plan E form of city charter, said appointments shall be by the city manager, subject to the provisions of the charter; and in towns they shall be appointed by the selectmen, excepting towns having a manager form of government, in which towns appointments shall be made by the town manager, subject to the approval of the selectmen. When a commission is first established, the terms of the members shall be for one, two or three years, and so arranged that the terms of approximately one third of the members will expire each year, and their successors shall be appointed for terms of three years each. Any member of a commission so appointed may, after a public hearing, if requested, be removed for cause by the appointing authority. A vacancy occurring otherwise than by expiration of a term shall in a city or town be filled for the unexpired term in the same manner as an original appointment. Said commission may receive gifts, bequests or devises of personal property or interests in real property of the kinds mentioned below in the name of the city or town, subject to the approval of the city council in a city or of the selectmen in a town. It may purchase interests in such land with sums available to it. If insufficient funds are available or other reasons so require, a city council or a town meeting may raise or transfer funds so that the commission may acquire in the name of the city or town by option, purchase, lease or otherwise the fee in such land or water rights, conservation restrictions, easements or other contractual rights including conveyances on conditions or with limitations or reversions, as may be necessary to acquire, maintain, improve, protect, limit the future use of or otherwise conserve and properly utilize open spaces in land and water areas within its city or town, and it shall manage and control the same. For the purposes of this section a city or town may, upon the written request of the commission, take by eminent domain under chapter seventy-nine, the fee or any lesser interest in any land or waters located in such city or town, provided such taking has first been approved by a two-thirds vote of the city council or a two-thirds vote of an annual or special town meeting, which land and waters shall thereupon be under the jurisdiction and control of the commission. Upon a like vote, a city or town may expend monies in the fund, if any, established under the provisions of this section for the purpose of paying, in whole or in part, any damages for which such city or town may be liable by reason of any such taking. The commission may adopt rules and regulations governing the use of land and waters under its control, and prescribe penalties, not exceeding a fine of one hundred dollars, for any violation thereof. No action taken under this section shall affect the powers and duties of the state reclamation board or any mosquito control or other project operating under or authorized by chapter two hundred and fifty-two, or restrict any established public access. Lands used for farming or agriculture, as defined in section one A of chapter one hundred and twenty-eight, shall not be taken by eminent domain under the authority of this section.
ACEC: 310 CMR 10.23
An Area of Critical Environmental Concern
(ACEC) is established [MGL ch 21A s. 2(7)] in special areas that meet designation criteria. The performance standard, of “no adverse effect” on any of the interests protected by these Regulations, must be met for activities in this special area [310 CMR 10.24(5)] (see Areas of Critical Environmental Concern, MCZM 1982).
ADVERSE EFFECT: MGL 131 S. 40
A greater than negligible change in the resource area or one of its characteristics or factors that diminishes the value of the resource area to one or more of the interests of the Act or this Bylaw, as determined by the issuing authority. “Negligible” means small enough to be disregarded.
§ 196A-4 WETLANDS REGULATIONS
to prevent or reduce contamination or damage and to shellfish, their nutrient source or their habitat.
PROTECTION OF WILDLIFE: Orleans Conservation Commission
The capacity of an Area Subject to Protection Under the Bylaw, OWPB § 160-2 to provide necessary wildlife habitat (see “wildlife habitat”);
and also the ability of any resource area to provide food, breeding habitat, or escape cover for any species falling within the definition of
Wildlife set forth in these regulations.
PUBLIC WATER SUPPLY: 310 CMR 10.04
Any source or volume of surface or ground water demonstrated to be in public use or approved for water supply pursuant to MGL c.111 s.160 by the Division of Water Supply of the DEP or shown to have a potential for public use.
RECREATION: Orleans Chapter 160
Any leisure activity or sport taking place in, on, or within 100 feet of a resource area which is
dependent on the resource area directly or indirectly for its conduct and enjoyment. Recreational activities include, but are not limited to, the following: noncommercial fishing and shellfishing, hunting, boating, swimming, walking, painting, birdwatching and aesthetic enjoyment***.
***note: "Passive Recreation" as defined by law does NOT include dogs whether leashed or unleashed.
WILDLIFE: Orleans Conservation Commission
Wildlife includes all nondomestic animals, including but not limited to, mammals, birds,
reptiles, amphibians, fish and the habitat required by these animals for nesting, cover and food, with the exception of species of the Class Insecta which have been determined by the Commonwealth of Massachusetts to be a pest whose protection would be a risk to man. The definition encompasses but is not limited to all vertebrate and invertebrate species listed by state and federal agencies as endangered, threatened or of special concern.
WILDLIFE HABITAT: Orleans Chapter 160
Those resource areas subject to Conservation Commission jurisdiction which, due to their plant community composition and structure, hydrologic regime or other characteristics, provide important food, shelter, migratory or
overwintering areas or breeding areas for wildlife.
There are many other self-interest conditions that are deliberately ignored and/or "overlooked" in order to cater to the whims & wishes of the large population of dog owners,and town officials, who are unwilling to pay to place a dog park in an non-residential area that has not been determined to be an "Area of Critical Concern".
There can be no other explanation for a Commonwealth of Massachusett's regulated Conservation Commission to be so bold and arrogant that they would deliberately disregard the valid objections of those abutters and neighbors who are so directly and adversely affected by that arrogance.
For one example of walking away from their responsibilities as well as thrusting them on the short-handed police department,
Click here for proof