Criminal Complaint Revived In Fat Cactus Wetlands Case

The Lynnfield Conservation Commission voted to revive its criminal complaint this week against the in a longstanding legal tussle over wetlands violations.

For well over a year, the conservation commission has been pursuing the owners of the Route 1 restaurant to comply with an order to restore a wetlands buffer zone damaged by a graveled area that expanded the parking area in the back.

However, the commission has been frustrated in its efforts up to this point to secure an acceptable resolution. This read not unlike what a bystander may have seen at this week's meeting. A in 2011. Last summer, the commission considered a fine of as much as $300 per day if the restaurant failed to take action on the wetlands matter. In more recent months, the complaint was put aside, aparently because town officials were under the impression the restaurant was going to fix the situation in an acceptable manner.

The second article linked to above, from August 19, 2011, quoted town counsel Tom Mullen as saying that “A restaurant manger did appear at one meeting, but lacked the authority and expertise to enter into a substantive discussion.”

Interestingly, this was pretty much the scenario that ended up frustrating committee members on Tuesday evening, prompting them to move on to other issues in relatively short order.

On May 21, 2012, Attorney Mullen wrote to Michael P. McCarthy, attorney for Naked Real Estate, LLC d/b/a Fat Cactus, requesting that "representatives of Fat Cactus with actual decision-making authority attend the commission meeting on June 19, 2012, at 7:30 p.m., prepared to discuss a realistic restoration plan." If the restaurant failed to take such action, Mullen wrote that "(the committee) will direct me to reinstate the criminal complaint and proceed with a clerk magistrate's hearing."

The Fat Cactus representative who did show up at this Tuesday's meeting was a restaurant manager, Dawn Zanazzo, who was apparently unaware that she had been asked to attend a hearing that even involved wetlands violations. She indicated that she had been asked at the last minute to attend the meeting and said that she was under the impression that town officials were supposed to give some sort of instructions to be taken back for the restaurant owners.

Specifically, Zanazzo told the commission at Tuesday night's meeting that the restaurant owner "told me you were supposed to give me information."

When asked, a minute or two into the hearing, whether she had any "decision-making authority" with the restaurant, she acknowledged that she did not. From there, members proceeded to vote in favor of re-issuing the criminal complaint, which despite its name, is largely just a civil procedure. Commission members were clearly irritated, stating that the manager's attendance had amounted to "wasting more of the commission's time" and that they were feeling essentially dismissed by the restaurant ownership.

The day after the hearing, Conservation Commissioner Betty Adelson said in a followup conversation with Lynnfield Patch that while commission members did indeed vote to re-issue the criminal complaint at their meeting, she was still consulting with Attorney Mullen to determine the actual steps that will be taken next. "In good faith, we stopped the previous fines," she said, declining to speculate on what size fines could be levied in the future.

Some gravel was apparently pushed into the wetlands, and regulations requiring a 25 foot no-disturb and a 50-foot no build zone for wetlands were also violated, said Adelson, adding that the commission also wants the restaurant to provide a plan for the restoration of the wetlands. The commission also plans to verify shortly whether boulders meant to block parking in the gravel area have actually been put into their proper spots, and Adelson expressed concern that some cars may have also been parking in a grassy area over the restaurant's septic system.

Instead of having the restaurant manager present on Tuesday night, Adelson said that she expected the restaurant to send somebody with recent photos of the site as well as specific information and plans, as well as the previously mentioned "decision-making authority."

If the matter extends into December, she noted, the restaurant's liquor license happens to come up for renewal. However, that would be an entirely separate matter for town entities outside of the conservation commission to consider.

"The commission had hoped for swifter, more cooperative action when it agreed last November to dismiss without prejudice the criminal complaint by which it had sought fines against your client," wrote Mullen in his May 21 letter to the Fat Cactus attorney.