2015-02-06 / Front Page

Sand dune violation hints at buried anger

By Duke Harrington
Staff Writer


In this Oct. 16 photo, the recent work on Great Hill Road, done by Kennebunk public works crews to create a road shoulder and a dumping area for snow as a part of plowing efforts, can be seen. The change allegedly disturbed a protected frontal sand dune, drawing a notice of violation and a $3,400 fine from the Maine Department of Environmental Protection. In this Oct. 16 photo, the recent work on Great Hill Road, done by Kennebunk public works crews to create a road shoulder and a dumping area for snow as a part of plowing efforts, can be seen. The change allegedly disturbed a protected frontal sand dune, drawing a notice of violation and a $3,400 fine from the Maine Department of Environmental Protection. KENNEBUNK — A public works slipup on Great Hill Road in Kennebunk has drawn a $3,400 fine from the Maine Department of Environmental Protection (DEP). However, and perhaps more tellingly, the disturbance of a coastal sand dune by town employees has uncovered some apparently long-simmering animosities in town.

At issue is a 400-foot stretch of sand dune separating Great Hill Road from adjacent marshland. Last fall, crews from the town removed part of the frontal dune to create a road shoulder, as well as an area to store snow from road plowing.


This Dec. 16 photo shows erosion control work done by Kennebunk public works crews on Great Hill Road after a project completed on the site in September drew a notice of violation and a $3,400 fine from the Maine Department of Environmental Protection for violations of the National Resources Protection Act. (Photos courtesy of Alex Mendelsohn) This Dec. 16 photo shows erosion control work done by Kennebunk public works crews on Great Hill Road after a project completed on the site in September drew a notice of violation and a $3,400 fine from the Maine Department of Environmental Protection for violations of the National Resources Protection Act. (Photos courtesy of Alex Mendelsohn) According to Town Manager Barry Tibbetts, crews initially thought they were in the clear because Great Hill Road — an official town road since 1896, and even longer considering it was initially part of the historic “King’s Highway” route through the area — has a 40-foot-wide right of way. The road itself is only 12 feet wide. But even so, the dunes are a protected natural resource and disturbing them at all, in the right-of-way or not, constituted a violation of both the federal Natural Resources Protection Act and Maine’s erosion and sedimentation control law. Tibbetts said as soon as the town realized it had erred — and the complaints of neighbors seemed to have helped in that regard — it selfreported the violation to the DEP.

“We did the right things,” he told selectmen at their Jan. 13 meeting. “We realized there was a mistake and we went to DEP before anyone reported it to them. We solved it and are taking steps to make sure it doesn’t happen again.”

Those steps, Tibbetts said, include putting all public works employees through a workshop on sediment control.

“[That’s] so we can do some education on this issue, so when our staff is out there doing this work they can be better prepared to understand the implications of things,” Tibbetts said.

DEP staffers inspected the site on Sept. 23 and concluded the town had indeed altered the dune by removing “soil and rock material.” It also noted that vegetation was removed, and fill hauled in to create the snow storage area which, as that turned out, was at least partly on private property. Identified by the DEP as map 97, lot 10, it belongs to Gail Donohue Grossman of Knoxville, Tennessee.

In an Oct. 2 Notice of Violation, the DEP gave Kennebunk 21 days to submit “an acceptable restoration plan to completely restore the frontal dune” and to install erosion control measures at the site.

However, Tibbetts said he learned from DEP Case Manager Chris Coppi, that the town could simply install the erosion control and pay a $3,400 fine, rather than rebuild the dune.

“It just seemed more prudent to pay the fine than to try and replicate [the dune] or improve some other area that might be needed, because that might be twice as much [of a cost],” he reasoned.

In addition to the $3,400 DEP fine, the town incurred $2,228 in labor costs and $1,430 in equipment costs to put in the erosion controls. Tibbetts said those tallies are estimated from Federal Emergency Management Agency schedules for similar work. More concrete is the cost of sand, dune grass and seed mat needed to restore the area. Those materials rang in at $2,256.

Tibbetts said he had town crews make the fix, rather than contract out the work, so public works employees could personally “see the ramifications of accidents that happen.”

The cost of the error, counting the fine and the fix, came to more than $9,300 — a figure that had some selectmen shaking their heads at the Jan. 13 board meeting.

“That’s a big error,” said Selectman Richard Morin. “It’s significant.”

Since then, the town also has accepted responsibility for $1,100 in legal costs incurred by landowners in the area.

Those fees were noted on the agenda packet for the selectmen’s Jan. 27 meeting, at which it was initially scheduled to cast a final vote on whether to pay the DEP fine. Because of winter storm Juno, that meeting was postponed to Feb. 10.

The legal bill gives the dune mistake a $10,414 price tag.

Harsh words

Despite the DEP assessment, not all officials in Kennebunk are convinced that a genuine violation occurred.

“There’s no dunes on that road, I don’t care what anyone says,” Selectman Albert Searles said at the Jan. 13 board meeting.

“Well, they [DEP] consider stones to be sand. They’re just bigger granules,” Tibbetts answered, adding he was inclined to pay the fine and not press the point.

“Closing this out with DEP is a good thing with us,” he said.

However, Sea Road resident Steve Bowley took Tibbetts to task for intimating via his comments about retraining that rankand file road workers were to blame for destruction of the dune.

“There was strict instruction on what was to be done down there and no supervision to make sure it was done that way,” Bowley said. “To insinuate it was the working guys who made this call to do things that way, I don’t think that’s fair to these folks.”

“From my perspective, no one’s being blamed for anything,” replied board Chairman Kevin Donovan. “Mistakes were made across the board and that’s what they were — mistakes.

“From what I know of DEP in the last couple of years, if all they’re requiring is a $3,400 fine, you’re better off paying it and getting out of Dodge before they study it too hard,” Donovan said. “It is what it is. It’s one of the reasons we have a legal defense fund.”

However, Donovan did not stop at urging payment of the fine, driving instead to a deeper issue.

He said recent, unspecified “comments on social media” about the base of the sand dune could be just the tip of the iceberg, as it were.

“I get the perception in this town that there are people who want the public works director out, and it’s beginning to frost me, quite frankly,” Donovan said. “If people have something to say, and they want to say it pointedly, let’s get it out on the table.”

That drew a strong rebuke from Bowley, who returned to the podium after initially taking his seat.

“If you wonder why there aren’t more people sitting here, it’s because of responses like that,” he said, gesturing to the rows of empty seats in the audience. “I don’t appreciate being dressed down by you.”

But that was as far as debate went. Bowley did not take the bait to more directly address the public works director.

According to Tibbetts, Michael Pardue, of Kennebunk consulting firm The Tideview Group, is preparing a “full report” on the sand dune issue from the town’s perspective.

Tibbetts said in a Feb. 2 email that while the report will not be complete in time for the next selectmen’s meeting, he hopes to have it in hand “later in the month.”

Pardue has been filling in since Jan. 26 as interim public services director in Kennebunk — at $50 per hour, plus $125 per week as a “vehicle expense” — while Director Tom Martin is out of work for knee replacement surgery.

Martin is expected to be out for as long as 10 weeks. Selectmen are scheduled to formally vote on Pardue’s contract at their Feb. 10 meeting.

At that session they also will conduct a final vote on whether Tibbetts should sign a consent agreement with the DEP and pay the $3,400 fine.

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