Judge rejects challenge to turf field project at Berkshire Community College
PITTSFIELD — An administrative law judge is recommending that the state Department of Environmental Protection approve plans for a $2.1 million artificial turf athletic field on the Berkshire Community College campus.
Timothy Jones of the DEP's Office of Appeals and Dispute Resolution issued his decision on Monday, rejecting an appeal of the order of conditions for the project pertaining to wetlands buffer zones. The conditions had been approved last spring by the Pittsfield Conservation Commission and in an enhanced form over the summer by the DEP's Western Massachusetts office.
The project was appealed by a group of 12 citizens who have opposed the turf field project both on environmental grounds because of nearby wetlands sites and over the materials in the "crumb rubber" filler used in the fields. The DEP focused its review on environmental questions and concerns, saying early in the review process that the safety of the materials used is outside the agency's jurisdiction.
City Conservation Agent Robert Van Der Kar said Wednesday that the final decision will now be up to DEP Commissioner Martin Suuberg, although further appeals could be mounted in Superior Court.
"I recommend that the DEP's commissioner issue a final determination affirming the [project order of conditions]," Jones wrote in his decision.
Addressing questions raised by the opponents, he added, "A preponderance of the evidence demonstrates that the resource areas are properly delineated; the project complies with the Riverfront Area performance standards; the project complies with standards for work in the buffer zone ... and there will be no stormwater point source discharges in buffer zone or resource areas."
"We are pleased with the result, obviously," said Michael MacDonald, chairman of a community group that has planned the turf field for youth sports in cooperation with the college.
"It was a win on each of the issues raised," he said. "This is a testament to the work by our environmental team, and city Conservation Commission, Rob Van Der Kar and the DEP western office."
Wetlands consultant Emily Stockman, of Stockman Associates, and civil engineer Eric Bernardin, of Fuss & O'Neill, worked on the turf project and assisted during the appeal process.
Carol Zullo, a member of the citizen group mounting the appeal, said Wednesday night that she was "highly upset, truly disappointed" with Jones' recommendation.
She said she attended a hearing on the appeal and believes "our side absolutely buried them" in terms of making a case against the project.
The group was represented by McGregor & Legere of Boston.
The turf field was planned over the past three years for a site near the Paterson Field House on the BCC campus, the site of current natural turf fields. A goal of the community group has been to provide an all-weather field for youth sports and possibly regional high school or other tournaments.
MacDonald said the appeal thus far has added significantly to the cost of the project, which had been put out to bid and a contracting firm selected. About $60,000 was added for environment protection refinements added into the project design, in part in reaction to the comments of opponents.
MacDonald, an attorney, represented the college — the defendant in the appeal — without charge. Elizabeth Kimball, an attorney with the DEP, represented the agency.
"This has been a long, drawn-out process, and it gives me reassurance that the ruling was in favor of the commission," said James Conant, chairman of the Conservation Commission. "We followed all the procedures of the Wetlands Protection Act."
Although further appeals could be mounted to Superior Court, MacDonald said an important difference is that the ruling of the DEP professional staff — and the commissioner, if he agrees with Jones' recommendation — can be given significant weight. During the administrative appeal process, each side submits testimony or material as if the issue were being considered for the first time.
A hearing on the administrative appeal was held in late February. The citizen group had appealed a summer 2015 decision of the Western Region DEP office to approve an order of conditions for the work with enhancements sought by DEP reviewers. The regional review followed an appeal of the Conservation Commission's order of conditions and approval in April 2015.
Contact Jim Therrien at 413-496-6247.