The Open Space Preservation Commission at its meeting Thursday night approved the donation of open space to the town at a Whisper Way subdivision after a contentious Planning Board meeting showed that the process should have taken place before building permits were issued.

Land was supposed to be conveyed to the town as part of an open space and landscape preservation development (OSLPD) special permit for the 12-unit subdivision. However, Planning Board meeting documents show that four lots had building permits issued for the construction of the homes in that subdivision prior to the conveyance of the open space or the placing of a conservation restriction on the land, contrary to the requirements of the OSLPD bylaw. Also, two of the three units constructed have been issued certificates of occupancy and have been sold.

Craig Nation of the subdivision’s development team explained that the project was approved in June 2019 and that three houses have been built. But the developers felt they were “sort of lambasted about the process,” unaware that the OSPC was the entity that was supposed to decide whether or not to accept the conveyance of the open space.

The open space in question surrounds Whisper Way. Its acquisition would allow the property to connect to Cameron Woods and existing trails along town-owned property.

Said Nation: “We just assumed that Open Space wanted it all along.”

OSPC chair Ed Harrow said that in a meeting he had with Principal Planner John Gelcich and Planning Board chair Gary Trendel that week, he suggested OSPC be designated as the receiving entity “by default” in the case of OSLPDs. Harrow said the two seemed receptive to the idea.

The OSPC voted unanimously to support OSPC being the primary recipient of donated open space land in OSLPD cases and also to be consulted about whether or not to accept the land and to have the right of refusal.

“This would at least put in one good step,” said Harrow.

One question Harrow had was about moving a crossing. Nation replied that a shift of 40 feet would allow the crossing to move away from a vernal pool and closer to an existing path and bridge. While the Conservation Commission has approved this change, the Planning Board has not done so yet.

Since abutting land was acquired after Whisper Way was approved, that land would allow the open space to connect to the Valleywood Road neighborhood. Another half-acre parcel on previously disturbed land, Nation said, also could be conveyed to the town. It originally was planned for a septic system for the subdivision, but the developers determined it was no longer necessary there for the project.

Nation said he would like to wrap the land donations proposed into “one neat package” at the meeting. He requested a letter from OSPC to the Planning Board conveying the acceptance of the proposed land donation.

“It’s about continuity and contiguity,” agreed OSPC member Jane Moran.

Nation added that the house lot boundaries already have been marked.

“One of the concerns that has come up in both Open Space and [Conservation Commission] is property boundaries that get, for lack of a better word, overstepped,” said Harrow, noting that sometimes the markings can be “indiscreet or unclear.” Because of this concern, he said the boundary along the open space donation should be clearly marked.

Member Steve Levandosky asked when the town would take possession of the open space donation.

Replied Nation: “We’re here to work it out and convey it as soon as possible.”

Developer Ron Nation proposed that the current deed be given to the town and held in escrow. This would allow the details to be worked out while the other lots are developed.

Moran, who also serves on the Planning Board, said the Planning Board is looking for confirmation that OSPC is amenable to taking the land and is “open to working with the developer.”

“In my mind, we were trying to correct a mistake that has always existed,” she explained of the Planning Board’s viewpoint. “There should have been a vote to accept these properties from developers before it went to Town Meeting.”

Moran made a motion noting that the OSPC is generally in favor of the conveyance of the proposed open space at the Whisper Way development as is, and that the additional 5 acres discussed will have easements tweaked in partnership with the developer to allow for a trail. It also included a recommendation for a time extension to allow the developer to work with the OSPC on the issue.

Said Harrow: “That’s a mighty mouthful of a motion.”

This motion was approved unanimously. Harrow said he will draft a letter addressing the OSPC’s approval to the Planning Board.

“I think what this commission can look forward to is all the developers coming through this commission for this similar conversation going forward,” said Moran.

Resident proposes pedestrian bridge

In a letter to the OSPC, resident David Freed proposed building a pedestrian bridge over part of an old access trail that goes into his backyard on Winter Street where the land is muddy and wet. He offered to do so at his own expense. The trail goes from Cameron Woods to the Sylvan Way property.

Moran pointed out that this would have to go before the Conservation Commission. During commission discussion, a condition was proposed that Freed would have to allow public right of way to cross through his property to access this trail, either by an easement if the property is owned by him or permission from him if there is a mortgage involved.

Levandosky explained that he has talked about the proposal with Freed, who plans to discuss it at the October OSPC meeting. Neighbors already access Lake Whitehall through his yard, with his permission.

Game camera acquisition discussed in wake of coyote attacks

Harrow suggested that a game camera be acquired after a coyote attacked and killed a dog on Whisper Way earlier this month. He also said there have been rumors of a bear in Cameron Woods, although none has been reported.

Moran noted that a coyote plucked a chicken from her yard a couple of days before the meeting. She suggested that OSPC consider sponsoring a talk with MassWildlife about what to do if a coyote approaches a resident and their property. Harrow took the idea as an action item.