Proprietor's Lodge, center, is seeking a 12-slip seasonal dock for its waterfront property. Neighbors argue that it will be unsafe because of the right of way.

PITTSFIELD, Mass. — Residents continue to speak against a proposed dock at Proprietor's Lodge, citing the project as a public safety issue.

The Conservation Commission again continued a notice of intent application for a 12-slip private, seasonal dock at the lakefront restaurant. A NOI for an identical project was denied by the commission in 2019 and the applicant appealed it with the Massachusetts Department of Environmental Protection, which then issued a superseding order of conditions.

That order has now expired.

Robert Pensivy said abutters reached out at least five times to mediate the size and location of the marina since "it's basically right on top of a heavily used right of way."

"If you try to put a 24-foot pontoon boat in those interior slips, it's going to come out and cross right into where the kids swim and play," he said.

"Properties located in a residential neighborhood sandwiched between two rights of ways that are deeded to the surrounding neighborhood. These are used for swimming, wading, and fishing by those deeded to them and others."

All of the properties on the south shore of Pontoosuc Lake are only permitted to have up to four motorized boat slips, which Pensivy said the neighborhood has never opposed.

At the last meeting, James Scalise of SK Design was "very comfortable" with the condition of a decades-old concrete wall that would support the dock. He came back with a plan that doesn't use the wall. 

There was a realization that Chapter 91, the Massachusetts Public Waterfront Act, requires stairs to allow access and the team excavated some of the wall to find cobbles and rubble behind.

"This proposal, I believe, answers the question of how to manage the structural integrity of the wall," he said.

"And I think the best way to do that is really to avoid using the wall, rather than getting really too intrusive with a wall that's 50-plus years old."

Michele Rivers-Murphy, former vice president of the Friends of Pontoosuc Lake, said there's much to unpack here. She emphasized that the waterways license is still being adjudicated appeals in Superior Court and said there is "no way" that certificates of compliance are met.  

"You can't just come back and now say that a wall is structurally sound because I have plan B and his hand was forced to do something different, and I'll tell you why this is a public safety issue," she said.

"To say that it is structurally sound when the public was going to walk on it is not only irresponsible, it is absolutely reckless to think of what could have happened had that wall not been properly secured. If it could have been Chapter 91 the engineer and applicant would have done that six years ago, and they would have been well on their way. If it was structurally sound. They knew it wasn't actually sound."

Pensivy said the wall was reported unsafe throughout the appeal process.

"Now that they're stating that it is not safe, imagine the tragedy that could have occurred if the DEP decision hadn't been appealed," he said.

Josh Wells was a bit surprised that years later, there was exploratory digging to review the structural integrity of the wall.

"As an engineer myself, I find this kind of an abuse of a position of power. You know, the justification originally being, 'Trust me, I'm an engineer,' is pretty insulting when you know the Society of Professional Engineers states in their ethics that their main point is public safety and public health," he said.

"I guess I just want to reiterate as well that the size and scope if it's reduced, will eliminate a lot of the concerns that a lot of the neighborhood has, and again, not trying to come after a business but trying to keep the space available and useful for everybody."

Scalise said the team would like to move this along. He asked for 30 to 45 days to secure outstanding certificates of compliance, reporting a meeting with the DEP next week.

"But the fact is that we want to make sure that if the commission makes a determination that the application is complete and then you want to act on it, then we would ask that you act," he said.

"If you feel that the application is not complete because it doesn't have certificates, then we would ask for a continuance."

Commissioner Jonathan Lothrop said it was unfortunate that this is the inadvertent poster child for why the panel doesn't like projects with multiple orders open.

"They really are interdependent with each other and I think that's the challenge that I'm dealing with here. I understand what you're saying and where you're coming from and I actually very much do appreciate that you heard what we said at the last meeting and went back and looked at that wall in much more depth," he said.

"I think that's on the right road but I think it's just so difficult, because really, if you look at those two superseding orders and conditions, they do interface with each other. So if one is different in the future, the second one is dependent upon that and now there's a change from what was originally the superseding order of conditions."

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