EagleTribune.com, North Andover, MA

July 18, 2013

Pomps Pond closed to non-residents, in apparent violation of federal law

By Bill Kirk

---- — ANDOVER — Town officials have closed Pomp’s Pond to non-residents, saying that overcrowding of the swim area has created a safety problem. But closing the pond to out-of-towners may have created a legal problem as well.

Starting yesterday, people arriving in their cars at the guard shack were asked if they were Andover residents. If not, they were being turned away at the gate.

People seemed to comply willingly with the order, reinforced with a large, new sign at the top of the driveway leading to the swim area saying ‘Andover Residents Only.’ But that didn’t mean visitors were happy about it.

“I think it was overcrowded with the wrong kind of people,” said Kyle Sweeney, 27, of Lawrence, one of many people turned away at the gate yesterday. “I don’t drive a Benz.”

For years, the pond has been open to both residents and non-residents alike seeking relief from the summer heat. Apparently, there’s a reason it was open to everyone: It has to be.

In 1978, the state funneled a $45,000 federal grant to the town to help pay for construction of the bathhouse, the cinderblock structure located between the parking lot and the beach. The grant, which paid for half of the $90,000 project, came from a federal program that requires equal access for residents and non-residents alike.

Further, the Board of Selectmen were not consulted in the decision to close the pond, although their own policy manual states that non-residents are allowed at the pond as long as they pay a fee.

Town Attorney Tom Urbelis did not return a phone call yesterday.

But such legalities didn’t matter much to Sweeney and his friend Beatrice Sanchez, 21, and Sweeney’s two boys, Angel, 5, and Kyle, 3. They had picked up the kids at daycare after work and were hoping to cool off at Pomps Pond as the temperature hovered around 90 degrees.

“I think this is ridiculous they’re not letting us swim,” he said. “I have a 3- and a 5-year-old in the car.”

Workers for the Department of Community Services were handing out sheets of paper titled ‘Local Swimming Locations’ to help non-residents find an alternative swimming hole. For Lawrence residents, the options were Geisler Memorial Pool on High Street or the Lt. Col. Edward Higgins pool on Crawford Street.

When asked if they were going to one of the Lawrence pools, Angel hollered from the back seat, “The pool is dirty.” He added, “I want to go swimming!”

Then they drove off.

The decision to shut the gate to non-residents was made by Town Manager Reginald ‘Buzz’ Stapczyinski at the request of Mary Montbleau, director of the town’s Department of Community Services, and Kim Stamas, recreation coordinator.

Montbleau said the recent heat waves have driven scores of people to the pond seeking refuge from the heat.

“That’s the problem,” she said. “It’s been warm, and we’ve been inundated. What will help with the pond is when the weather turns cooler.”

She said there are 70 parking spaces and that the town has sold more than 300 seasonal passes to residents. Meanwhile, more than 1,000 people have come in for day passes, most of those likely going to non-residents.

“Andover has always been one of the only areas that allow people from any community to come and enjoy the pond,” Montbleau said. “But we are overwhelmed.”

She noted that “from time to time over the years, we have had to say, ‘Sorry, we can’t let anybody else in,’” she said. “The parking spots are full, there is no room on the beach. We have also closed the pond for weather events and high-use days. With this sustained heat wave, we’ve had some very challenging weekends. With the heat wave, we are just not able to deal with the crowds. We don’t feel safe.”

On July 4th, in fact, the pond was so busy that head lifeguard Paul D’Ambrosio made the decision to shut the gate and not let any more people in.

“It’s not that large a swim area,” D’Ambrosio said. “We were worried about safety when we had over 100 people in the water.”

He noted that the town even hired three extra lifeguards to keep up with the big crowds at the pond.

Mary Durham of Gould Road, Andover, who was at the pond yesterday with her children, 12 and 13, said that on Monday, “It was so mobbed they had lifeguards on the hill, in the sand and on the docks but it was still hard to see my kids.”

Stapczynski agreed.

“The pond has been very busy this year,” he said. “We have limited parking and our first priority is our town residents. I wouldn’t have made the decision if we didn’t have the heat wave and the influx of town residents. I don’t remember a summer quite as hot as this with repeated heat waves.”

He said he didn’t think that it was necessary to notify selectmen of his decision.

“I don’t think so,” he said, when asked if the decision to ban non-residents was a policy change. “It’s a policy/practice. I don’t believe so. I think it’s the right thing to do.”

When asked about the provisions of the federal grant requiring equal access to residents as well as non-residents, he said, “There’s got to be a statute of limitations on that. That can’t be in perpetuity. We’ll have to look into that.”

According to documents provided to The Eagle-Tribune by the state Department of Energy and Environmental Affairs, the grant for the Pomps Pond Bathhouse was to help in the “design and construction” of the new structure. The money came from the U.S. Department of Interior’s Land and Water Conservation Fund.

According to Section 8-2 of the Federal Financial Assistance Manual governing the fund, discrimination based on the basis of residence is prohibited.

A spokeswoman for the state said the provision has no statute of limitations.

It appears the town may also be violating the federal statute in another way, as it states that “annual permit systems available to residents must also be available to nonresidents.” The way fees work at Pomps Pond is that non-residents can only purchase daily passes while residents are allowed to purchase annual passes.

Selectmen chairman Alex Vispoli said he would be looking into the matter after he was notified of the town manager’s decision by a reporter for The Eagle-Tribune.

“It has not been something that has been brought up to us at all,” he said. “We haven’t talked about it.”

He said it “seemed” reasonable to shut the pond to non-residents based on safety concerns.

“Right now I’d defer to the town manager,” he said. “He makes those kinds of decisions. But I will make some inquiries. I’ll ask the town manager if it’s something he wants to bring before the board in a couple of weeks.”