Selectmen vote to appeal Conservation Commission decision to DEP
By Caitlyn Kelleher JOURNAL REPORTER

The current access to the Crocker Pond Recreation Area is a one-lane bridge over the dam off South Ashburnham Road. JOURNAL PHOTO/CAITLYN KELLEHER

Westminster Selectmen voted 2-1 to file an appeal with the state Department of Environmental Protection with the Conservation Commission's rejection of a proposed road to access for Crocker Pond Recreation Area.

Selectman John Fairbanks voted for the appeal because it left all of the options on the table and that he didn't want to have the 10-day appeal period expire before the town could take action.

"It doesn't cost anything to have the option," Fairbanks said.

Selectman Nick Hay agreed it was important to get a foot in the door while there was an option. He seconded the motion to appeal but did not vote in favor of it.

"I'm not for the road, period," Hay said.

The Conservation Commission denied the project because "the proposed work cannot be conditioned to meet the performance standards set forth in the wetlands regulations," according to the denial.

"The Commission was told by both Whitman and Bingham and the Board of Selectmen that the time frame for utilizing the existing roadway was limited and that in order to access the recreation area this roadway must be built," reads the decision.

The town's deed shows that there is 24-7 access permitted over the bridge running from South Ashburnham Road to the existing parking area. Selectmen said in previous interviews that the permission for access was granted with the understanding that the town would build a new primary entrance from Route 2A.

Residents currently access the recreation area from the south on a small road that runs off South Ashburnham Road.

"The town doesn't own the access that is there now," Town Coordinator Karen Murphy said in July. "Bob Francis retained ownership of the dam and the bridge. Everyone agreed it was better as an emergency access. It was always the intent of the town to pursue that other access."

The town started over the summer to seek approval from the Conservation Commission, which enforces a local wetlands protection bylaw and the state's wetland protection bylaw, to construct a new road to access the Crocker Pond Recreation area.

The Board of Selectmen is overseeing the approval process of the new road that is designed to run behind TRW off State Road East.

The proposed road, which was engineered under money appropriated in 2005, is before the commission for review.

The proposed road will run close to the discontinued Depot Road at a close-to-parallel track to the railroad tracks before cutting toward the pond near the Frog Pond and entering the parking lot from the north.

"The Selectmen did not investigate or evaluate the possible ramifications inherent in building a new road prior to the transfer of ownership of the recreation area," states the Commission's decision. "They had every opportunity to seek input from the Conservation Commission regarding environmental concerns during the negotiating period preceding the purchase."

The longer part of the decision signed by four members of the commission project was not a "limited project" as defined in the Wetlands Protection Act.

The decision also lists a number of other issues the commission had with either the presentation of the plans or the designs themselves, including that they believed more than 17,000 square feet of wetlands would be disturbed by this project, states the denial. Another is that the commission did not want to grant the town a variance for its' own bylaw stating there needs to be a 25-foot setback from a water body, states the denial.

The commission also agreed that the Planning Board should have approved the road design before being submitted to them.

DEP spokesperson Ed Coletta said there is no timeframe for the state agency to make their decision.

He said, after an appeal is filed it is assigned to staff member who will review the legalities of the appeal, before making a site visit with both parties and then seeking additional information.

Coletta said an appeal the DEP can uphold a denial, uphold a denial with different reasoning, overturn a denial or overturn a denial with conditions.

Westminster resident and founder of Watchdogs for an Environmental Safe Town Donna Brownell, tried to persuade the Selectmen not to file the appeal with DEP and advocated for the decision of the Conservation Commission.

"They did the right thing," she said.

Fairbanks and Selectman Tom O'Toole ended that part of the discussion quickly.

"We are not here to discuss the merits," Fairbanks said.

Brownell earlier in the discussion had objected to the Selectmen discussing the issue in executive session.

"We're going to strategize on the entire subject," Fairbanks said. "My understanding is that it is appropriate for executive session."

Brownell objected to the executive session because she called the appeal process procedural and not litigation.

After her objection to board held the discussion in open session. Coletta, who would not comment on the local board's actions, said the DEP considers this process an administrative appeal.