Chilmark accepts Berger land restoration plan
By Steve Myrick
Published: October 16, 2008
The Chilmark Conservation Commission yesterday accepted an amended land restoration plan from Merle and Bonnie Berger. The Bergers own land on one of the town's most scenic vistas, where extensive cutting and clearing took place in violation of conservation easements and wetlands bylaws, according to the commission.
The restoration work will begin immediately following the 10-day appeal period, if the Bergers do not challenge the commission's action.
The clearing took place on the Bergers' property, as well as that of their neighbors, the Dietz family.
The amended restoration plan addresses seven distinct areas of Pease's Point, an ecologically sensitive parcel of land that juts into Menemsha Pond. The commission agreed that it met all the requirements of their order for restoration of the land to the state it was before the violations. Chilmark conservation officer Rusty Walton will closely supervise and monitor the restoration effort. The plantings and other work are required to be completed by May 1, 2009. The Conservation Commission has already scheduled follow-up visits to ensure the plan is executed as promised, and that the plants are well-established and growing.
Dr. Berger, a prominent Boston physician, amended the restoration plan after the conservation commission rejected most of his original plan, and imposed fines totaling $1,500 per day, until he submitted a satisfactory plan. As an incentive to move the restoration work forward, and possibly avoid costly lawsuits, the commission agreed to forgive those fines if Dr. Berger submitted the new plan by October 9, which he did.
The commission sanctioned Dr. Berger after it found him responsible for violating conservation restrictions. According to the commission, extensive cutting and clearing had taken place over the years since Mr. Berger purchased the property in 2000. Also at issue was a buried propane tank and parking area inside the protected area near Heron Pond, which the commission discovered during a site visit to view the tree and vegetation clearing. According to yesterday's agreement, the tank will be excavated and relocated and vegetation restored around Heron Pond by December 1.
The first restoration plan submitted by Dr. Berger fell far short of the remedy outlined by the conservation commission, in legal documents called enforcement orders. Those orders outlined a detailed restoration, down to the species, number, and the specific locations where the plants were to be restored. Dr. Berger responded with a proposal to restore a small section of the cleared area near his home, but proposed to let the rest of the clearing grow back naturally over time. He proposed no remedy for the clearing done on the Dietz property. That proposal prompted a searing letter to the conservation commission from neighboring landowners, Robert and Laurie Dietz. They are the children of noted Island conservationist Anabel Dietz, who died in 2005.
Mr. Dietz called the original plan unrepentant, defiant, and woefully inadequate. He said for several years the Dietz family ignored violations of the conservation restrictions on the land, but a large clearing project last fall was the last straw.
"Last Thanksgiving the trustees (The Dietz family owns the land in trust) became aware of the extensive clearing and disturbed area in the heron pond, as well as the "topping" to three feet high of about 4,500 square feet of protected, mature brush and shrubs originally 10-12 feet high, on the trustees' land," Mr. Dietz said in his letter. According to Mr. Dietz and members of the conservation commission, Dr. Berger was fully aware of the conservation restrictions on the property, which were part of his agreement to purchase the land from the Dietz family. Those restrictions were put in place to preserve natural views of Pease's Point from the shore of Menemsha Pond, Lobsterville Beach dunes, and the village of Menemsha, according to Mr. Dietz. The vegetation formed a natural screen, blocking the Berger home from those areas. The Dietz family and members of the conservation commission contend that Dr. Berger cleared the land in order to create views of Menemsha Pond and Heron Pond from his own property. The latest cuttings exposed his home to the pond. Dr. Berger declined to comment when contacted by The Martha's Vineyard Times.
At a hearing on October 2, attorney Richard Gallogly , representing Dr. Berger, questioned whether the clearing had any adverse impact on the wetlands, or the habitat of a pair of rare herons that were nesting in Heron Pond.
"We've seen the adverse affect," said commissioner Pamela Goff. "The herons have flown the coop."
Mr. Gallogly also contended that the conservation restrictions were vague, but did allow minimal cutting and pruning to retain views.
"Mowing to the ground does not constitute minimal pruning," said commission chairman Richard Steves.
In response to an order to relocate the buried propane tank, Mr. Gallogly conceded that the work was done without proper permits, but argued that excavation would have a larger adverse impact than leaving the tank where it is.
"Aren't you doing the same thing," Mr. Gallogly asked the commissioners. "There are other ways to inflict pain on Mr. Berger without actually harming the natural resource again."
Immediately following that statement, Mr. Steves made the first in a series of motions to impose $300 per day for five of the violations.
Surveyor Glenn Provost, who prepared the original restoration plan, said it was unclear in several areas of the property, how far the vegetation extended before Dr. Berger had it cut. Chilmark conservation officer Rusty Walton, who viewed the site, said there were clear indications of the area originally covered by vegetation, and marked the areas with small flags.
Mr. Dietz rejected proposals from Mr. Berger's representatives for restoration efforts less than those requested by the commission. "We're looking at violation after violation," he said at the October 2 hearing. "I don't think these people are entitled to that kind of deference at this state."
According to Mr. Steves, the commission could not get a satisfactory answer from Dr. Berger about the contractor who did the clearing work. The commission did not pursue sanctions against the contractor, instead focusing on restoration of the land as quickly as possible.
