Any recourse?

[mmc]

Happy New Year!!


What can a commission do when an OOC is completely ignored, work is completed and the applicant's rep comes in with a request for an COC and says, "he didn't know they had started either, but its all done and looks great"?

mmc

[kleigh]

What kind of non-compliance was there?

The type of non-compliance would affect my response. For example, no erosion controls were used during construction. If there's no erosion or damage from not using ECs then really no harm done other than ruffling feathers (and rightly so) of the commission.

Many times I get requests for COCs when the OOC was never recorded. Do we make them record it just to issue a COC? Sometimes yes. If it's really old, maybe not.

If the consultant didn't know they were starting, how does he know it was done well? Just cuz it "looks good" doesn't mean it was done correctly. Request as-built plans and a letter from an engineering reviewing it for compliance with the OOC. If they deviated from what was permitted, require them to explain why. If what they did constitutes additional resource area alterations, then the commission can issue an enforcement action.

[patrickgarner]

And I presume the consultant has provided you with an as-built plan. If so, it should clearly show the proposed/approved work, and the actual work so that you can make a realistic comparison... Once you can do so, hopefully how to proceed will be more evident. If the owner simply ignored the OOC (btw, where was the commission during work--no monitoring??) & built what they wanted, you have a potential enforcement situation...

[mmc]

This was a dam/culvert repair. Involved a dewatering basin, redirecting stream flow and daily monitoring by the engineer who was the applicant's rep. Lots of conditions including pre-construction etc. 2 miles in on a dirt road where no one would see work going on. OOC was recorded. Engineer said they never called him either.
Other than completely ignoring the need for a site visit before the work started and the monitoring protocol, there is now no way to know what types of violations might have occurred, if any.

[patrickgarner]

Perhaps... We just can't catch every one of these.

[bfaneuf]

This is the story of every Commission's life. Maybe not in this case, but you'll get an answer of 'oh, doesn't the yard look great?' The landscaping with all these horticultural and/or potentially invasive plants are beautiful! What a beautiful view of the lake we have since those trees got cut down!

I personally think that every permit-tee needs to have their feet held to the fire for non-compliance. I hope you have a well worded Bylaw outlining penalties for ignoring an OOC. I feel that of all the Boards and Commissions, the ConCom tends to be the most ignored. How many times have I seen someone come in and ask for a COC when they haven't even gotten an as-built done? Too many. They'll pay attention to their building inspector or make sure the septic gets inspected, but erosion controls and limits of work? Plantings? Stormwater?

[kleigh]

If pre-construction photos were taken you could compare them to existing conditions. Other than that, unless you saw the area prior to the work or can see unpermitted alteration or erosion/sedimentation there is no way to tell.

I would definitely ask for as-builts and and engineer's report. Since they are in violation of the OOC they must prove to you the work was done as permitted.

At the very least when this applicant or contractor comes in again you can make sure that doesn't happen again.

[mmc]

We do have photos from before the work. We did a site visit yesterday and it is clear that they violated the Order. The engineer is doing an as-built. We have a town bylaw that allows us to fine contractors, agents and property owners for failure to comply with the general or special conditions of an OOC. The fine is paltry. $50. What I'm wondering is, can we fine them $50 for every condition they violated. That would have more impact.

Thanks for all the feedback.

mmc

[kleigh]

Technically, what they built was built without a permit. The commission can approve of minor changes that were deemed necessary during construction if those changes did not constitute additional resource are impacts, however that's not the case here. You have authority to require it to be built as you permitted, if that means they have to remove the culvert and construct it as to what was permitted, then that's what they have to do. Also ask for DEP guidance.

What does your bylaw say? Ours allows for up to $100 per each day the violation exists from the onset of the violation which can add up fast.

If yours doesn't specify, ask your town attorney for guidance.