March 30, 1997
BEDFORD - Threatened with eviction from his posh condominium for failure to pay a $45 per month golf course maintenance fee, Barry Kort is finally getting attention from state and local officials over his charge that the course was built without permits and partly on town-owned wetlands.
Kort, sued by the Bedfordshire condominium association for nonpayment of the golf course fee, had argued that he was being unfairly assessed for a $1 million golf course that was built illegally - without permits for filling - and sited partly on 14 1/2 acres of town wetlands.
A Superior Court judge's decision against Kort, an electrical engineer with a doctoral degree, has won the attention of Bedford Planning Board chairman Bob Avakian, who has pledged to research the history of the golf course, located off Old Billerica Road.
"I am very curious to know who signed off on this project," Avakian said in an interview. "It appears to me now that certain individuals have simply failed to carry out their responsibilities on the town's behalf."
Bedford tax assessor Paul Asher said he hasn't figured the value of a golf course into the Bedfordshire property tax bill because "blue-sky amenities such as a golf course don't show up on my computer models and are therefore hard to appraise."
James Sprague, the chief of the wetlands division of the state Department of Environmental Protection, said he would consider issuing an order to remove the nine-year-old facility if his office can substantiate Kort's charge that 1,000 cubic yards of fill were trucked in without permits.
Even old work can be ordered removed if it is in violation of state wetlands regulations, so long as the land remains in the same ownership," Sprague said.
Kort, who has been ordered to pay $10,385 to the condo association or face the forced auction of his condo, says he has convincing evidence the trustees of the 54-unit Bedfordshire complex rebuilt the private 9-hole golf course beginning in 1989 without environmental and building permits.
He cites formal written conditions in the Bedford Planning Board's October 1986 decision awarding a special permit for the construction of the town's first multiple housing project. The board limited use of 37.6 acres of common open space to "conservation, agriculture or passive recreation."
Patricia Ardito, who voted on the special permit in 1986 and who had served continuously on the board until she lost her seat in this month's town election, said the Planning Board was never consulted during that period about any change in use for the land. Any such notice would have triggered a series of public hearings and site surveys.
"It was our intention that the common land be left as open space with a public easement to the land next to the Shawsheen [River] deeded to the town," Ardito said. "If they wanted to change the use of that land, they should have come back to us, so that we could have held proper public hearings and studied the idea."
Fred Aufiero, the president of the 54-unit Bedfordshire Condominium Association, said in an interview that because a golf course was once on the land, the current course is legal, despite any covenants with the town.
"We are just maintaining it like any other golf course," Aufiero said.
Several condo owners use gasoline-powered golf carts Aufiero acknowledged, an apparent violation of another covenant that prohibits any "recreational vehicles on the parcel."
The public isn't permitted on the Town-owned portion of the course "because we have been given the right to control town land," he said.
In 1994, after Kort began withholding the golf course maintenance fee and after the condominium board of directors filed suit against him, Kort discovered what he believes are legal problems with the course.
Kort wants the golf course removed because he resents having to pay a fee for an amenity he was never allowed to vote on and won't use.
Specialists in municipal planning say they struggle daily with developers and landowners who thumb their noses at local building codes and environmental regulations, knowing that town planning offices are understaffed and that board members are unpaid volunteers.
Enforcement, even of small conditions, is important, these specialists say, if the integrity of the planning process is to be preserved.
"Generally the bigger the municipality and the more professional the staff, the better the enforcement of construction conditions, but it is really a problem for us tracking all these projects once they have been built," said Milton Gilbert, a member of the Natick Planning Board and vice chairman of the state Federation of Planning and Appeals Boards.
Paul Salafia, a member of the Andover Planning Board, said it is generally the responsibility of the town's building inspector to enforce construction conditions set by planning boards, but the quality of enforcement depends on the individuals holding the inspector's job.
"You really have to make sure the building inspector understands the conditions a planning board writes or they may as well not be there," Salafia said.
In Andover, planning officials recently threatened to pull a building permit from a subdivision developer after a board member noticed a pile of dirt being stored illegally on a vacant lot. In Chelmsford, a private school was ordered to block off access from a parking lot to a main road after a Planning Board member just happened to see a gate that had been quietly left unlocked.
In Bedford, Kort says he believes that officials have brushed off his complaints because he is just one disgruntled taxpayer up against several dozen otherwise happy neighbors.
The 58-acre Bedfordshire parcel abuts the Shawsheen River and was once home to The Club at Bedford, a country club with a public nine-hole golf course built by Bedford resident Paul Little in 1968. Little's operation went bankrupt in the early l980s and Boston-based Emerson College bought the land in 1983 for a suburban campus.
When Emerson's plans were dropped because of strong neighborhood opposition, the college sold the land to a Boston developer who proposed condominiums along with the golf course. When that plan was rejected by the Planning Board, Mark Moore of Lexington bought the land and proposed the condominiums-only project.
Several town officials said they were aware the private golf course exists, but they said they were not aware the Planning Board made elimination of the course a condition when the development was approved in October 1986. But now that the course is operating, there is little they can do, those officials said.
"My understanding is that it was grandfathered," said Lora Goldenberg, chairwoman of the Board of Selectmen.
Goldenberg said she would order the condominium's board of trustees to remove "no trespassing" signs, because the developer granted a 10-foot-wide easement across condominium land to the river.
Building Inspector Ronald Wetmore said he hasn't investigated because Kort never came to see him about his complaint. "Unless I get a complaint, I can't act," he said.
Sprague said the Department of Environmental Protection investigated an anonymous complaint about the golf course and its water pumping station but initially was satisfied when Elizabeth Bagdonas, the town's conservation administrator told his office she found no wetlands violations.
"We depend on the investigations of the town conservation commissions, because we do not have enough staff to make site visits on our own," Sprague said.
But unlike Bagdonas, Sprague said he does not consider a golf course to be a passive recreational use, because of the amount of routine filling, mowing and pesticides required to keep golf greens in shape.
"A golf course as passive recreation doesn't pass the straight-face test," Sprague said. And even if the golf course existed on the land before, what the condominium's trustees should have done is file a new notice of intent, so that the Conservation Commission would have held proper hearings. We have a public hearing process so the public has the chance to respond beforehand."
Copyright Caroline Louise Cole, Globe Correspondent.
Reprinted with permission.
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