Lenox Mountain

A state Department of Conservation and Recreation project last June and early July was designed to replace outdated utility poles and bury new power lines to a communications tower at the summit of Lenox Mountain. The agency contends that exemptions written into the Scenic Mountain Act cover the maintenance work. But, the DCR has been accused of violating the act by constructing a gravel road to the summit.

RICHMOND — Score one for the Conservation Commission’s four-month battle against the state Department of Conservation and Recreation seeking restoration of a woodland trail and hillside on the western slope of Lenox Mountain.

An official with the DCR, against which the commission has been issuing daily $100 fines in connection with the project, reached out to request a private meeting over the dispute, according to Shepley Evans, conservation agent for the Richmond commission.

In response, Evans urged the official, Deputy Chief Engineer Jeffrey Parenti, to attend the commission’s next public Zoom meeting, scheduled for Feb. 9. It was not clear whether the state will accept the invitation.

The commission levied the fines in November against the DCR and two of its contractors, alleging that work done on the trail last summer to replace power lines to the summit ran roughshod over the trail and hillside adjoining a state-owned easement allowing the state to upgrade communications equipment atop the mountain. Part of the disturbed trail cuts through forested land owned by Mass Audubon’s Pleasant Valley Wildlife Sanctuary.

On Jan. 8, Parenti emailed the commission, requesting a private meeting to discuss whether the Scenic Mountain Act applied to the work done on the trail, as the commission contends, and to discuss possible improvements to the utility corridor along the mountainside this spring.

That request was denied. Instead, Evans noted that its enforcement order issued Nov. 6, which included the fines, required a plan for “complete site remediation and restoration by a licensed professional” to be submitted by Jan. 6. That plan has not been submitted.

He pointed out that, in the absence of any plans or action to address the alleged violations of the Scenic Mountain Act, he has been instructed to continue issuing citations fining the state agency and its two contractors assigned to the project last June.

The cumulative total fines assessed against the DCR and its two contractors to date are about $20,000, Conservation Commission Chairman Ron Veillette said.

Last month, the Conservation Commission refuted claims by the DCR’s two contractors — Dagle Electrical Construction of Wilmington and Colonial Contracting and Excavating of Ashburnham — that their work on the trail was exempt from the Scenic Mountain Act because the project was needed to upgrade utility lines leading to the communications tower at the summit.

In letters to the contractors, the commission asserted that the project was not exempt, as only the Conservation Commission can grant an exemption, specifically because a new gravel road was constructed to access the summit.

The commission also pointed out that the Scenic Mountain Act does not include provisions authorizing emergency repairs.

“No attempts were made by any party to contact the Town of Richmond regarding the need for work at the project site which you defined as constituting a ‘hazard,’ ” the letter states. The commission noted that DCR Electrical Engineer Martin Menke had described the project as “an upgrade,” not as emergency or hazard work.

The commission also stated that since “none of the parties have taken adequate action to address the violations, each day the violations go unaddressed constitutes a new and independent violation,” resulting in daily citations and fines continuing to be imposed.

Copies of the commission’s letters were sent to Central Berkshire District Court Clerk Magistrate Christopher Speranzo, three Mass Audubon officials and two abutters to the woodland trail. The contractors had written to Speranzo, claiming that they are exempt from the Scenic Mountain Act provisions and, thus, not liable for the citations and fines issued by the town.

State DCR spokesperson Olivia Dorrance has told The Eagle that the emergency maintenance project to place portions of the power lines underground and also to restore crucial utility poles and power lines was completed “anticipating a potential emergency such as storms and forest fires. By completing the work, the electric line and utility poles are in better condition, reducing the risk of falling high voltage lines sparking a forest fire.”

“DCR has a long-standing familiarity with the Berkshire Scenic Mountain Act,” she added. “[The agency] does not consider the emergency project to be subject to the statute” because it involved the maintenance, repair, reconstruction and replacement of a “lawfully located and constructed structure.”

The commission disputed the emergency designation since the DCR’s planning for the upgrade started months before and that it was a designated upgrade, not an emergency. In any case, the exemption can only be determined and granted by the Conservation Commission, Veillette said.

Mass Audubon regional scientist Tom Lautzenheiser, who joined a Nov. 6 site visit attended by a three-member DCR team, described the work done by the state as a “serious violation” of the Scenic Mountain Act. But, he also voiced the hope that “having them see it … means we may have made some progress in getting them to see our point of view.”

Clarence Fanto can be reached at cfanto@yahoo.com, on Twitter @BE_cfanto or at 413-637-2551.