ConCom Catches MacLellan Oil Attorney Unawares With News of LLC Dissolution

Commission will seek update on tree buffer to be installed around 300 Ames Pond

The Tewksbury Conservation Commission met on Wednesday with all members present. Hearings for 75 Carolina Rd. and 1438 Main St., Tewksbury Dental, were continued to the next meeting.

After approving plans for a new single-family home to be built at 129 Marshall St. and a notice of intent for 20 First St., the ConCom picked up the public hearing for L&G Main St., the multifamily development at the MacLellan Oil property at 1167-87 Main St. 

At a previous meeting, Conservation Agent Joe Fontaine told the commission that abutters had contacted MassDEP directly about flooding concerns over Darby Brook, which runs through the MacLellan property. That triggered a review of how riverfront area regulations might apply. Given increased rainfall in recent years, the brook, which once dried up during certain times of the year, is now flowing constantly, according to abutters in the Claddagh Place office condos.

Jim Hanley of Civil Design Consultants, above left, and attorney Don Borenstein appeared for the applicant. Hanley gave a history of the project, which was approved by the Planning Board on Jan. 22. 

“We took a fresh look at it and we reran our numbers to confirm that we met the standards for redevelopment within the riverfront area,” said Hanley. “We actually have a very slight reduction of a few hundred square feet less impervious based on the current design.”

He added that the only way that the development could contribute to Claddagh Place flooding problem is if the site doesn’t properly capture stormwater.

“We’ve done everything we can to make sure that we don’t have any negative impact on the existing flooding problem that some of the neighbors in the area experience,” he said. “I think we’re at a position where we have this one single issue that we’d like to talk about with the Commission on top of anything else that you’d like to talk about.”

As it happens, there was an additional issue to discuss.

Member Steven Gove informed Hanley and Borenstein that he regularly researches business applicants to ensure he has no connection that would present a conflict or an appearance of impropriety. In looking up L&G Main Street LLC, he found that the entity was involuntarily dissolved by the state of Massachusetts in December due to having no filings for two consecutive years. 

“We legally can’t issue a permit because it cannot it cannot conduct business in the state of Massachusetts,” said Gove.

That revelation came as a surprise to Borenstein, who said he was not familiar with the corporate filings for the applicant, but that having the LLC be reinstated by the Secretary of State is a matter of “basically filing a check.”

That may be the case, however, Gove said the Commission could not issue a positive notice of intent under Massachusetts Law. He suggested denying the notice of intent and then have it reapplied for by a recognized entity.

Borenstein pushed back, calling reinstatement “a very minor administrative item.” 

“It’s something that his corporate attorney could address in a single day,” said Borenstein. “It certainly should not reverse three years worth of effort on a Notice of Intent.”

Chair Dan Ronan suggested continuing the hearing until town counsel could review.

Borenstein questioned Gove’s motivation for checking the LLC — Gove reiterated that it’s his practice, meant to avoid conflicts of interest — and went on that there are reasons why an owner wouldn’t want areas of their property determined to be riverfront. He sought to overturn the presumption, using DEP guidance, that Darby Brook is perennial, noting that 2015 photos came from the town’s current peer reviewing engineer.

Member Linda Darveau pushed back.

“I think that you’re really mischaracterizing that email from DEP,” said Darveau. “I think that was a very stern letter, telling us not to accept the evidence that you have shown us.”

She went on to state that the commission shouldn’t accept the photos presented because they lack date stamps and wetlands flags. 

“Anecdotes that people have seen it dry don’t matter,” she said. “And I think you’re exactly proving the point. You’re basically saying, you can’t provide updated data, because it’s now perennial, because it’s not an anomaly that we had record rainfalls in the past few years.”

Hanley countered that they do have dated photographs with geotags, and that the project adheres to regulations.

“There’s a floodplain associated with Darby Brook, right, it’s it elevation 15,” he said. “We’re at elevation 17 and a half, give or take, we’re two feet above it with our parking lot. We don’t take any of the storage volume outside of that floodplain.”

He also pointed out that the plan is to remove a significant amount of impervious surface and put measures in place so that a heavy rain won’t result in flooding on the building site, nor increase the existing flooding problem that Claddagh Place contends with.

“The challenge that the abutters have is that their building was put in the floodplain,” he said. “And that’s why when that brook overtops, it does exactly what the models show. It rises up to somewhere about elevation 15, and that’s right up against the base of their building. And that’s why they have those problems.”

Hanley said the difference between a determination of intermittent and perennial is that they would be obligated to limit the amount of impervious surface within this area to the current amount, and that based on the current design, there is  a net decrease in impervious surface of about 300 square feet. 

Several Claddagh Place abutters spoke of flooding in their parking lot, with Paula Rowe saying she has dated photos and video over four years showing the stream has not been dry in that timeframe. NOAA has compiled data showing rainfall, among other trends, for Massachusetts.

“We just want a good safe project done correctly,” said Gove. 

On a recommendation from Conservation Agent Joe Fontaine, the hearing was continued while Ronan consults with counsel. 

Tree Removal

After amending an enforcement order on fill removal and a retaining wall at 765 Whipple Rd., Fontaine updated the ConCom on tree cutting that occurred in the fall or early winter of 2023 on town property under the management of the Conservation Commission. 

Fontaine sent a letter asking for a restoration plan. Only one resident responded, so Fontaine asked the board to approve a more detailed letter, specifying four- to six-foot replacements, and require a response by May 2 or the town will initiate legal action. 

Staying on the subject of trees, Darveau asked Fontaine to update the commission at the next meeting on the order for a tree buffer to be installed around 300 Ames Pond, to provide relief for Cardigan Rd. residents who are currently looking at 70-foot high piles of dirt and rocks, from which sand is running off. Fontaine previously reported that plantings required for erosion prevention are normally done in spring, and the commission had agreed to request an update in March.

The next meeting is March 20.