Town seeks control after clearing of trees at McKee development

Town seeks control after clearing of trees at McKee development

Workers using heavy machinery were still busy clearing acreage at the future Hidden Meadows housing development near the Diamond Hill Reservoir last Friday. (Breeze photo by Ethan Shorey)
Attorney Kelly says everything within rules

CUMBERLAND – Town officials say developer Jim McKee’s recent clearing of 15 acres of land violates both town rules and restrictions laid out during the approval process for his Hidden Meadows housing development. They contend McKee is acting without proper authorization as he prepares to build 20 new homes near the Diamond Hill Reservoir.

Michael Kelly, attorney for McKee and his Terrapin Development, counters that cutting these trees as part of phase two of the development in this outlying area of town, off Torrey Road and Hidden Meadows Drive, is in compliance with state and local permits obtained by McKee.

The Breeze has learned the town is planning a special Planning Board meeting on this matter and other issues related to McKee developments on Dec. 13 at 6:30 p.m. at Town Hall.

Rhode Island statutes give the Planning Board authority on interpretation and enforcement of local land development regulations, says Jonathan Stevens, planning and community development director. At the Dec. 13 meeting, Stevens will seek the board’s confirmation of that interpretation, and recommend the board take back the authority it previously delegated to him.

Stevens is also seeking authority to hire a “peer review” surveyor and landscape architect, at McKee’s expense, to double-check the limits of disturbance and tree line specified in the approved preliminary plan, as well as consider bond reductions for work accomplished and approved by the town for McKee developments at High Ridge Estates and Jenna Way/Fairhaven Road. Stevens said he will also seek confirmation that unfinished detention basins at the first phase of Hidden Meadows (three houses) be required as part of final plan approval for the second phase of the project (20 houses).

McKee is the brother of former Cumberland Mayor Dan McKee.

Attorney: Town is clueless

Kelly says Stevens and town officials have “no clue” what they’re talking about in trying to place such limits on McKee and Terrapin, saying Stevens lacks understanding of his own regulations.

“He (McKee) didn’t do anything wrong,” he said. “He followed the rules.”

Nicole Martucci, associate attorney at Kelly, Souza, Rocha & Parmenter, PC, provided a memo from land surveyor Michael Darveau, “which confirms that all of the cutting of trees and/or grubbing performed at Hidden Meadows has been done specifically pursuant to a permit issued by” the Rhode Island Department of Environmental Management, “a copy of which has been submitted to the town on several occasions.

“All tree cutting and/or grubbing has been done, and will continue to be done, in accordance with the DEM-approved plan within limits of disturbance,” she wrote.

“Additionally, tree cutting, grubbing and clearing is being done pursuant to a soil and sedimentation control permit which was issued to Terrapin Development for the Hidden Meadows project, and it clearly indicated the disturbance of 15 acres. In fact, it indicates “cut trees and grub new road and lots.”

The limit of disturbance is set forth in the DEM-approved plan and the identical soil and sedimentation control plan, said Martucci, so there is “no violation of any provision of the ordinances of the town of Cumberland by cutting trees at Hidden Meadows, all of which has been done in accordance with the permits issued for the project.”

Under soil and sedimentation control rules, cutting of trees is not prohibited, said Kelly. Once the trees were down, his client received all necessary state and local permits to clear debris and stumps. He produced a receipt for a land disturbance permit from the town, approved by Building Inspector Kevin Joyce.

Kelly said Terrapin requested an on-site meeting. The next thing they knew they were being told they could only cut one acre of trees. He said they asked what permit they needed and received no response, so they assumed it was the soil erosion and sedimentation permit.

Asked about Kelly’s noting that the ordinance makes no specific mention of trees, and the referenced “vegetative ground cover” only relates to brush close to the ground, Stevens said he supposes the attorney could technically be correct. Kelly seems to be citing RIDEM’s staff policy allowing clearing of trees prior to installing silt fencing and other items. “However, that is land ‘clearance,’” said Stevens. “Land ‘disturbance’ is grubbing, such as removing tree stumps.”

Stevens: Obligation to save trees, follow rules

Cumberland’s development regulations section states that trees shall be retained wherever feasible, Stevens said. Kelly, in a recording of Planning Board testimony provided to The Breeze from the town, said the developer would stick with preliminary staked areas to be cleared, adding that he didn’t anticipate “clear-cutting on the lots.”

Kelly said Stevens should be reminded that the development is by nature saving trees. As a conservation project, 56 percent of the entire parcel is left untouched as open space, he said.

Stevens said approval of a preliminary plan was conditional on a pre-construction meeting on site with town staff prior to clearing.

“The Terrapin attorney requested a time and date, and I responded within an hour saying we would be available on 48 hours notice,” he said. “That meeting never took place, and Terrapin proceeded to clear-cut the property.”

Not the only project

A Nov. 21 report from Stevens to the Planning Board on the agenda for Dec. 13 states that four Terrapin Development projects “have been the subject of delays, regulatory violations and exceeding specifications authorized in approved preliminary and final plans.” The following are the four projects, according to the 15-page report from Stevens:

• Fairhaven Drive and Jenna Way are substantially completed, “but extensive correspondence shows Terrapin unable to meet mutually agreed upon completion deadlines,” said Stevens. The department requests the board authorize bond reductions and call in the remaining performance bond balance so the town can complete the projects.

• High Ridge is substantially completed. It is recommended the board reduce the bond and establish a deadline of April 30, 2019, to complete the project.

• Hidden Meadows I is also substantially complete, except drainage basin infrastructure remains uninstalled and the roadway needs a final topcoat. The department recommends the developer be required to complete the installations as a condition of final plan approval of Hidden Meadows II.

• The second phase of Hidden Meadows “is of particular concern,” said Stevens, “especially after the extensive record of site violations experienced with High Ridge in 2016.” In that case, the developer “clear-cut trees and completely eradicated well beyond the limits of disturbance approved by the Planning Board,” he wrote. Vegetative buffers specified in the final plan were effectively lost, and numerous state and local violations were issued.

“Extensive correspondence included in this memo reveals the inordinate amount of time and energy town staff have expended to get the developer to conform (to) the final plan specifications approved by the Planning Board,” he writes to the board.

Hidden Meadows II “is starting out to be a repeat of High Ridge,” Stevens adds.

Mayor Bill Murray said the issues with McKee “will come to a head” on Dec. 13. McKee’s history in Cumberland, said Murray, is to act first “and then challenge it.”

A summary of the claims

For the second phase of the Hidden Meadows project, Stevens is making the following claims:

• That no surety was posted for land clearing/disturbance;

• That no pre-construction on-site conference was held;

• That the property was cleared beyond the tree line specified in approved preliminary plan;

• That McKee did not conserve any mature vegetation (trees) on lots;

• That Kelly stated in a preliminary plan hearing that there was to be staking of areas to be cleared on each lot, and the developer would abide by those, adding that they didn’t anticipate clear-cutting of entire lot areas;

• And that the department’s position is that “approval” required in town ordinances before beginning construction is final plan approval and not preliminary, and that “begins construction” includes grubbing (stump pulling).

Kelly responded to each of the claims, stating that:

• The developer doesn’t need to post a bond for land clearing and no one asked for one;

• No condition was put on the decision requiring a meeting prior to what he termed “tree construction;”

• Preliminary approval is not the binding plan, but final plan is binding;

• A meeting was requested but then the town refused “because it took the wrongful position that only one acre could be cut because they can’t read their own ordinance.” The word “trees” simply isn’t in the town’s soil and sedimentation control rules, he said.

• Terrapin representatives requested a pre-construction meeting with the town engineer, and met with him, said Kelly. Stevens, “who has a personal problem with Mr. McKee, interrupted it and later said it didn’t count as a pre-construction meeting because it wasn’t on site.”

Town taking firmer stance on McKee

In June, spurred in large part by issues with McKee developments, the Planning Board passed tougher new restrictions on development, including requiring developers who clear beyond town-approved “limits of disturbance” to stop work and go back to the board, and specifying that before any work is done, a pre-construction conference with the town engineer take place on site and the construction limits be clearly delineated by ground markers.

According to ordinances noted by Stevens, anyone who begins construction without receiving permission from the board or administrative officer is in violation of the regulations. The department’s position, he said, is that required “approval” means final plan approval, which has not been granted.

Mike Healey, of the Rhode Island Department of Environmental Management, said the department limited clearing and disturbance in wetland areas of the property.

“The vast majority of the proposed alterations, however, are in non-wetland areas outside DEM’s jurisdiction. The wetlands permit for Hidden Meadows II included a stream crossing, which was the only wetland alteration for the entire subdivision,” he said. “The crossing enabled the developer to access non-wetland acres, which he plans to develop. The town received RIDEM’s public notice in July. It clearly showed the clearing that was proposed and subsequently permitted. The town did not comment during the 45-day public notice period.”

Stevens said Healey’s comment may relate to a state wetlands permit or stormwater permit. As a rule, the town engineer or planners don’t usually comment on such permit applications, he said. The Planning Board’s approval of the preliminary plan required that the developer get state approval prior to final plan approval. Either way, he said, “all developers must abide by the town’s land development regulations.”