Massachusetts Attorney General slaps residential developer with US$200,000 fine for illegal harvesting of timber in violation of Wetlands Protection Act, Forest Cutting Practices Act; property must be restored

BOSTON , December 7, 2011 (press release) – Environmental Damage Occurred at Crown Point Subdivision in Leominster

Leominster developers have been ordered to pay $200,000 for illegally hiring timber harvesters to clear cut 100 acres of the Crown Point residential subdivision, causing the illegal alteration of bordering vegetated wetlands, protected stream banks and 15 acres of the buffer zone to those protected resources, Attorney General Martha Coakley announced today.

By order of the Suffolk Superior Court, developer James L. Xarras, property owners N.M.J. Realty Trust and Learned Hand Realty Trust, and trustees Margot Xarras and Debra Delaney, must pay a $200,000 civil penalty for violating the Wetlands Protection Act, the Forest Cutting Practices Act, and the Massachusetts Environmental Policy Act, and must restore the property in accordance with law and the directives of the Massachusetts Department of Environmental Protection (MassDEP).

“The permitting process is in place to ensure that our wetlands are preserved and that these projects are supervised,” said AG Coakley. “This developer, who has been sued by our office before for other environmental violations, flagrantly ignored the law and should be held accountable.”

The environmentally damaged site is a 235-acre parcel in Leominster owned by the N.M.J. Realty Trust and Learned Hand Realty Trust on which the developers, led by James L. Xarras, proposed to build a 251-lot subdivision known as Crown Point. As the Court found in its order, James L. Xarras, without seeking and obtaining the required permits and approvals from MassDEP, the Leominster Conservation Commission, or Department of Conservation and Recreation (DCR), hired timber harvesters to clear cut about 100 acres of the site, which caused the illegal alteration of approximately 2.5 acres of bordering vegetated wetlands, 1,500 linear feet of stream banks, and about 15 acres of the 100-foot-wide buffer zone to these protected resources. The court order, issued at the request of AG Coakley’s Office, also noted that the site has not been restored to its pre-alteration condition, but must be in accordance with all of the applicable statutes and regulations and directives of MassDEP.

“Wetland areas are critical to environmental protection, especially when it comes to preserving the quality of water and preventing flooding,” said MassDEP Commissioner Kenneth Kimmell. “The massive tree-cutting and alteration to wetlands in this case was blatant. This penalty sends a clear message that MassDEP will pursue enforcement when people choose to violate our environmental laws, and they will pay for the harm they have done.”

In its order, the Superior Court focused on the magnitude of the harm caused by the defendants’ actions, calling it “significant” and concluded that the “harm is magnified if the violators are permitted to act…” in complete disregard of the law. In its order, the Court expressly pointed to other Superior Court cases where the Xarras defendants were found liable for similar environmental violations on other Massachusetts sites, and reflected that these provided “further evidence of Xarras’ callous disregard of the law as it applies to his development activity.” Based on these conclusions, the Court imposed the $200,000 penalty.

Under the Wetlands Protection Act, which is enforced by MassDEP, anyone wishing to conduct a project that will alter protected wetlands resources must get approval from the local Conservation Commission or MassDEP before commencing work. The goals of this public review process are to ensure the protection of private and public water supply; the protection of ground water supply; flood control; storm damage prevention; pollution prevention; fisheries protection; and wildlife habitat protection. The Forest Cutting Practices Act, which is enforced by DCR, requires a timber harvester working in the Commonwealth to possess a license when harvesting forest products, and requires that a forest cutting permit be obtained to guide the harvester prior to commencement of cutting.

“Forest cutting oversight protects the long-term overall health of our forests while safeguarding other natural resources such as water supplies and wildlife habitat for the greater good. It is critical for the conservation of our environment that permitting processes are followed and enforced,” said DCR Commissioner Edward M. Lambert, Jr.

When the procedures set forth in the statutes and regulations are abused, the public suffers negative consequences from the unpermitted alteration of the protected resources.

The Attorney General’s Office also settled a separate case against Mr. Xarras in July of this year for asbestos violations

This case is being handled by Assistant Attorney General Fred Augenstern of Attorney General Coakley’s Environmental Protection Division, with assistance from Investigators Monique Cascarano and Nancy Ward, and with assistance from MaryJude Pigsley, MassDEP Chief Regional Counsel; Marielle Stone and Joseph Bellino of MassDEP’s Central Regional Office; and DCR's Jim Soper, Program Supervisor of the Service Forestry Program, Bureau of Forestry, and Dolores Boogdanian, DCR Assistant General Counsel.

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