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Nashua residents have opposed the development of a 33-acre parcel at 200 Concord St. in Nashua that sits on Pennichuck Water Works land. North Concord LLC plans to build a 85-unit elderly housing complex on the site.
Thursday, September 29, 2011

Conservation group stands by Pennichuck action

NASHUA – The city Conservation Commission has no binding authority, but its advisements can carry weight.

So when the commission earlier this month asked state environmental officials to reconsider a permit they had granted to a controversial housing development off Concord Street, many in the city took notice.

One of those was Brad Westgate, the lawyer for the developers. Westgate told aldermen that his clients would sue the city if the Conservation Commission’s actions led to the halting of the development’s construction.

With those warnings in mind – and with Westgate himself sitting in the audience taking notes – the Conservation Commission voted Tuesday to stand by its previous vote. The commission would not ask the state to rescind the review request.

The majority of commission members said they believed that if the state Department of Environmental Services does eventually take action, they will be tied to a delay or halting of the project regardless of a vote to rescind a prior vote.

“I have never been sued. I hope to never be sued,” member Michael Gallagher said.

He went on to say the commission didn’t act inappropriately when it voted, on Sept. 6, to have DES review an application that North Concord Street Properties LLC completed to obtain a terrain alteration permit that allows for an 85-unit elderly housing complex on 32 acres of Pennichuck property.

The commission had sought the DES review after watching a presentation by resident Geoff Daly, who, along with more than 100 residents, objected to the housing project because of environmental concerns.

At that Sept. 6 meeting, Daly presented photographs, a video and documents that he claims illustrate how the housing project will harm Pennichuck wetlands.

He warned that if the city didn’t take action now, it would be left holding the bag after it eventually purchases Pennichuck Corp. (Pennichuck has a $2.2 million purchase-and-sales agreement with North Concord on the parcel.) The commission voted to send the minutes of that meeting, along with Daly’s materials, to DES.

Since then, Westgate threatened to sue. And city attorney James McNamee advised aldermen and the commission that there were no “irregularities” in the developer’s application process with the city, and that no wetlands application was required.

The commission’s request to DES was the first act a city body had taken on the project since July, when the Planning Board approved the development.

Because of the Planning Board’s approval, the city now appears to have no legal standing to block the project, but it could buy the parcel from Pennichuck and compensate North Concord. According to McNamee and others, Mayor Donnalee Lozeau has recently discussed the property with the developers.

On Tuesday, commission members again discussed the housing complex’s possible environmental risks to the watershed.

Resident Joseph Parzych echoed what many others have said over the past few months: Pennichuck property in the Concord Street area is under “tremendous environmental stress.” The large bog in the area has two storm drains running into it, as well as uncontrolled water runoff from nearby Clovelly Apartments, Parzych said. When it rains, those pollutants flow into the natural springs, he said.

The only Conservation Commission member to object to not reversing the earlier vote was Richard Gillespie, who said the environmental claims forwarded by Daly and others were speculative and sometimes wrong.

“I don’t think we have a legal basis to hold it up,” Gillespie said of the DES permit.

The question of whether the project sits exactly on a wetland or is adjacent to one has been a subject of debate. Daly has pointed to past city and Pennichuck studies that show the parcel should be a protected wetland. Pennichuck officials have maintained that any drainage from the housing complex will run away from the watershed.

The commission voted Sept. 6 to hire a wetlands consultant to clearly define the wetlands area and a hydrologist to determine the path of underground water flow. An aldermanic committee has also discussed studying the wetland more closely.

At Tuesday’s meeting, commission Chairman David MacLaughlin revealed that the board had yet to forward the materials DES needed for review, three weeks after it voted to do so. There was no explanation for the delay. Later, Daly provided copies of computer discs that contain the information from his Sept. 6 presentation.

Jim Martin, a spokesman for the Department of Environmental Services, has said his office will accept the commission’s materials and consider its request.

DES could revoke the permit if there was “overwhelming evidence” that the project could harm the environment, Martin said. The commission’s request will be “outside of the appeal process,” and North Concord could “construct that project tomorrow if they so choose,” he said.

On Tuesday, Daly also told the commission that DES officials walked another Pennichuck parcel last week.

The company recently admitted that two asbestos pipes and other construction scrap metals have been sitting unattended since the 1980s on property owned by the utility in the area near the Hayden Green development. Pennichuck has promised to move the materials, and DES visited the site.

Albert McKeon can be reached at 594-5832 or amckeon@nashuatelegraph.com.