01:00 AM EDT on Thursday, August 7, 2008

Journal Staff Writer

By Maria Armental

CHARLESTOWN –– A proposal to subdivide 28 wooded acres along Route 112 into 24 residential lots is headed back to the Planning Commission, a Superior Court judge has ruled.

The proposed development, known as Carolina Farms, has been batted back and forth between the Planning Commission and the Zoning Board of Review four times and appealed to Superior Court twice since it was first filed in 1999.

The applicant, Beechwood Enterprises, filed a new application in 2005 revising its previous plans.

In her decision, filed July 31, Judge O. Rogeriee Thompson said the Planning Commission is to reconsider the proposed development based on the second application.

That application, Judge Thompson said, removed controversial “permanent disposal areas” (stump dumps) along the perimeter of the property, “an internal change sufficient to constitute a material change in circumstances,” which precludes the doctrine of administrative finality, which the Zoning Board and a group that formally opposed the project argued had barred the Planning Commission from considering the second application.

Under the doctrine, after an application is denied, subsequent applications seeking the same relief must show a change in material circumstances to be considered.

Still, Thompson said, “Beechwood is still required to demonstrate to the satisfaction of the commission that the buffer area around the property is sufficient to provide an audio/visual buffer that will protect abutters.”

“Any evidence as to Beechwood’s clearing and vegetation removal activities in the buffer area may be relevant to the final determination of the adequacy of the buffer or to a finding that land has been environmentally disturbed or damaged.”

Town officials and development objectors have charged Beechwoods started to excavate the roadbed and cleared trees and vegetative debris without the town’s approval.

Beechwoods’ lawyer, Margaret Hogan, told the then town planner that Beechwoods was “preparing the road for inspection purposes by the director of public works, in accordance with the subdivision regulations and clearing up vegetative debris.”

The town has issued several notices of violation against Beechwoods for clearing trees and starting the road work without the necessary approvals; but the notices don’t say if the any of the trees were cut from the buffer zone.

“The court,” Thompson wrote, “makes no findings as to the allegations that Beechwood has engaged in clearing activities on the property, nor does it inquire further into the current state of the one-hundred-foot perimeter around the property.”

marmenta@projo.com