2016-07-22 / Community

Opinions vary on illegal cutting issue

By Wm. Duke Harrington Staff Writer

KENNEBUNK — Selectmen will seek a consent agreement with the local land trust for illegal cutting that should at least call on repayment of all legal costs.

However, some have called on much stiffer penalties, given the identity of the violating party.

Over the winter, the Kennebunk Land Trust hired Boiling Spring Landscape of Dayton to prune rosa rugosa, or beach roses, from a small beachfront lot on Great Hill Road.

Located where the road makes a 90-degree turn along the shorefront, near the intersection of Robie Road, the 12,000-square-foot parcel is a small area that, at low tide, leads to an outcrop known locally as Strawberry Island. The lot is partly owned by Kennebunk Beach Improvement Association Charitable Holdings (KBIA). The cutting took the rugosa bushes from as tall as 6 feet, down to 6 inches from the ground.

“It was done by hand as opposed to someone coming in with an excavator or something that would have disturbed the soil as well. That’s my positive twist on it,” Code Enforcement Officer Paul Demers told selectmen at their July 12 meeting.

Demers said the bushes have grown back and are now about a foot tall. The cutting was done, he reported, to improve the health of the bushes and stimulate growth. However, some speakers at the meeting voiced confidence the cut was done solely to improve water views.

“Why would they cut it down so low? The only thing I can keep coming up with is just the view, and the fact that if they cut it down low, they’d have it for an extended period of time before they’d have to cut it back again,” Selectman Ed Karytko said

Demers said even though rosa rugosa is an invasive species from Asia, the land trust could only cut the bushes below 3 feet in height with permission from the Maine Department of Environmental Protection.

“Because this is considered a frontal dune, the DEP would not have granted a permit to do that, at least from what I’ve heard in my comments with DEP staff,” he said.

The town was first notified of the cut by neighbors, and took a look at the clearing work on Feb. 23, its eye drawn by the fact the lot sits in both the resource protection and shoreland overlay districts.

Rules within those zoning areas prohibit cutting of existing vegetation located within 75 feet of the high water line, except to remove safety hazards.

In a June 21 letter to Demers, Marie Louise St. Onge, executive director of the land trust, apologized for the violation, writing, “I was unaware of the zoning requirements governing pruning at Strawberry Island.”

She also took responsibility for drawing the beach association into conflict with the town, saying the exact boundary between its portion of the lot and that owned by the land trust has “historically been unclear to both organizations.”

“As a result, when KLT has done pruning on the property, we have done so to optimize the appearance of the entire area. Thus we have pruned the entire parcel,” she wrote.

However, in a June 30 letter to Demers, the beach association’s lawyer, Alan Shepard of the Kennebunk firm Shepard & Read, adopted a different view.

“A few years ago [KLT] engaged in some similar trimming activity that spilled over onto the KBIA property,” he wrote. “At that time, the director of KBIA called the trust and informed them of this activity and was assured that it would not be repeated.

Under these circumstances, it came as a surprise when some trimming was done over the winter by KLT and again included the parcel owned by KBIA,” Shepard wrote. “Given that KBIA did not in any way participate in this activity, I would hope that the town would not seek any consent decree or impose any fine.”

Some at the July 12 meeting, like Selectman Dan Boothby, seemed to feel the town should charge at least as much as the $3,400 it paid to DEP last year when it disturbed about 4,000 square feet of dune frontage. Boothby also noted the town imposed a significant fine only a few months ago on a local landowner who felled trees in the shoreland area.

“We need to make sure everybody knows they all play by the same rules,” Boothby said.

Town attorney William Dale agreed, saying, “What we don’t want is when somebody we like does something bad in the field, we look the other way. That would be the worst thing we could do.”

At the very least, Dale said, the town should hit the land trust for his bill, submitted for any time spent drafting a consent agreement. Even if there is not mitigation work required, an agreement should be signed, Dale said, simply to mark the event on the record, in case there is ever a repeat offense.

Others, however, felt a warning should be sufficient, given there appears to be no permanent damage done.

“If the roses are already coming back, I don’t see why there’s any additional action needed,” Selectman Shiloh Schulte said, who also faulted the way the town assesses fines for such violations.

“If the fine is up to us, and every time we do this it seems totally arbitrary, based on whatever we think their intent was, and whatever we feel like doing, then it seems like we need a better system,” he said.

Audience member Rachel Phipps said any fine assessed to the land trust is ultimately a fine on local residents, who donate a large part of the trust’s operating budget.

“Let’s leave them their money, because a portion of that money came out of my pocket,” she said.

Others backed the idea that the cutting was actually good for the health of the rose bushes.

“Six inches seems a little low to me, but then 3 feet seems a little high,” Lower Village resident Betsy Smith said. “But aggressive pruning of rosa rugosa is kind of standard practice down on the beach and is good for the plant.”

Because St. Onge was not able to attend the July 12 meeting, selectmen agreed to put off any decision until their next gathering, on Aug. 9. By that time, Dale is expected to have prepared a consent agreement for consideration.

KBIA Executive Director Martin Lodish, said he hoped any agreement would also compel the land trust to pay its legal fees as well, especially given that it has been made a party to the violation against its will.

“They knowingly trespassed on our property,” Lodish said, again noting that it was not for the first time. “It was clear cut. So, they weren’t trying to improve the view from the bench there, they wanted to improve the view from every house in that area. When you think of an environmental organization violating environmental laws, that should be under consideration, as well.”

Stephen Bowley, owner of Bowley Builders, agreed.

“If that was a contractor down there who did that, you’d be slapping me all around the room,” he said. “I think they should be treated the same away. We all give to the land trust, but I don’t see why there should be a double standard.

“They’re in the land management business,” Bowley said. “If you’re the land trust and you don’t know you shouldn’t be cutting in the shoreland area . . . well. In fact, I’d fine ’em more.”

Finally Selectman Deborah Beal said one additional party needs to be brought to the table Aug. 9, in addition to the land trust – their landscapers.

“I want to talk to the contractor,” she said. “Were they hired to prune, or were they hired to clear-cut? That’s a big difference.”

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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