State: Conservation Commission denial warranted, open meeting law not violated

By Andrea Ray | Oct 04, 2017

Marion — Separate state agencies have determined that the Marion Conservation Commission's denial of the construction of a driveway through wetlands was warranted, and that the commission did not violate the open meeting law earlier this year.

Michael Popitz, a former member of the Planning Board, submitted a proposal to add a driveway at 123 Indian Cove Road. His existing driveway is through an adjacent property. In project documents and in conversations with the Conservation Commission, Popitz said the new driveway would make it easier to maneuver a boat trailer, and would provide access to an upland portion of the property, where a single-family home could be built in the future.

Documents submitted noted that the project would impact wetlands on the bordering property and riverfront area and affect stormwater drainage. Popitz argued that an alternative -- widening the existing driveway -- would require more work in the riverfront area, as well as a special permit from the Planning Board and the creation of an "access easement plan." For those reasons, he determined that building a new driveway was the best option.

The Conservation Commission denied the project, telling Popitz that his reasons for building a new driveway were not significant enough to warrant the disruption to the environment. Popitz appealed the decision to the state Department of Environmental Protection, which supported the town board in a Sept. 25 letter.

"The applicant owns an alternative means of access to the upland portion of the property," the Department of Environmental Protection wrote in its response to Popitz's appeal, and further noted that the project "further fragments a wetland system to gain access to the same portion of the property currently served by the existing driveway."

The state department said that the proposal did not adequately evaluate alternatives to building a new driveway, nor did it demonstrate that "any such a house could be built" on the upland portion of the property.

Popitz also contacted the state Attorney General's office in May, alleging that the Conservation Commission had violated the open meeting law by failing to create and approve meeting minutes in a timely manner. His complaint referred to meetings in February, March, and April concerning his driveway project.

In a Sept. 6 letter, Kevin Manganaro of the Attorney General's office wrote that the open meeting law was not violated. The office determined that the Conservation Commission had created and approved minutes for its February meetings within a month, and that a delay of two to three months would violate the law, since the commission typically meets twice monthly.

Though the commission has not approved minutes from March and April, "we do not find a violation of the Open Meeting Law because those meetings had occurred within one to two months before the complaint was filed," Manganaro wrote, but reminded the commission to approve those minutes "as soon as is practicable."

To read the letters regarding Popitz's appeal from the Department of Environmental Protection and the Attorney General's office, see below.

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