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2005-06-02 CITY OF BEVERLY SPECIAL MEETING MINUTES Date: June 2, 2004 Board: Conservation Commission Subcommittee: Members Present: Anthony Paluzzi (Vice Chairman), Gregg Cademartori, Linda Goodenough, Dr. Mayo Johnson, William Squibb Members Absent: Ian Hayes, David Lang (Chairman) Others Present: Amy Maxner-Environmental Planner Minutes Secretary: Robin Levesque Voting Members: Johnson, Goodenough, Paluzzi, Squibb ORDERS OF CONDITIONS DEP #5-862 – 2 Boyles St, Beverly MA Manor Homes at Whitehall Hill Circle, LLC, Cluster Style Subdivision Paluzzi calls the meeting to order at 7:30 p.m. and states that the hearing was closed on May 24, 2005 and there will be no further comments accepted from the public or the applicant. He explains the Commission is here tonight to discuss the project and vote on whether to approve or deny the project and issue an Order of Conditions for DEP File # 5-862, 2 Boyles Street, Beverly, MA Manor Homes at Whitehall Hill Circle, LLC, Cluster Subdivision. Maxner states she has provided members with a bullet sheet to guide the discussion and states that there are two separate sheets, one for discussion under the Massachusetts Wetland Protection Act and Regulations and one under the Beverly Wetlands Protection Ordinance and Regulations. She asks the Commission if they would like to start discussion under the Act. Members agree to this. Discussion pursuant to the Wetlands Protection Act & Regulations 310 CMR 10.00 Maxner states that she has listed each wetland resource area found in each wetland system that are located throughout the site, and listed the statutory interests those resource areas are presumed to be significant to and reads off the following: Wetland A: Contains Bordering Vegetated Wetland (BVW), Inland Bank to an Intermittent Stream, and are assumed to be significant to the following interests of the Act: Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 2 of 15 Private and Public Water Supply Groundwater Supply Flood Control Storm Damage Prevention Prevention of Pollution Protection of Fisheries Protection of Wildlife Habitat Maxner states that the applicant is not proposing any work in the BVW of Wetland A, but that the applicant plans to alter 42 linear feet of bank to the intermittent stream to accommodate construction of the roadway. She asks the Commission whether members find the resource areas to be significant to the above referenced interests and if the work proposed meets the performance standards pursuant to 310 CMR 10.54 (4) 1-5. She reminds the members of the 50-50 split of flow at the crossing to mitigate flooding of properties down stream. She refers members to Bill Manuel’s letter dated March 30, 2004, which addresses the capacity of lower Wetland A and potential impact of the split in flow, and also Bob Griffin’s letter dated April 28, 2005, which addresses Dr. Chiang’s comments on decreased recharge to Wetland A and NE Wetland. Maxner states Dr. Chiang’s letter dated May 3, 2005 states all of his concerns have been addressed satisfactorily. Squibb asks about the Planning Board’s comment regarding their requirements of the zero volume increase. Cademartori states there is to be no net increase in volume coming from the site. Squibb asks where the other 50% of the water from the 50/50 split is going. Maxner states it’s being diverted to detention ponds 1A & 1B. Johnson states that he thought all these types of questions were resolved and that is why the hearing was closed. Squibb states that he wants to make sure that these questions are raised to determine whether the wetlands will be impacted. Paluzzi states the Commission can condition the project to ensure no negative impacts occur to resource areas. Goodenough states that based on the thresholds in the Regulations, she is inclined to find that the bank crossing at Wetland A meets the performance standards. She states the crossing occurs at the narrowest point of the steam, and impacts no BVW, and thinks that based on her observation out on the site visits she thinks that the listed functions will not be significantly impaired. Johnson agrees, and moves to affirm that the resource areas are significant to the interests listed, and that all activity proposed within Wetland A meets the performance standards in the State Regulations and work can be conditioned to protect the resource areas. All members agree with these findings. Maxner states the next wetland system to be discussed is Wetland B, and reads off the following: Wetland B: Contains Bordering Vegetated Wetland (BVW), Inland Bank to an Intermittent Stream, Land Under Water, and a Certified Vernal Pool, and are assumed to be significant to the following interests of the Act: Private and Public Water Supply 2 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 3 of 15 Groundwater Supply Flood Control Storm Damage Prevention Prevention of Pollution Protection of Fisheries Protection of Wildlife Habitat Maxner states no work is proposed in the BVW, Bank or the Vernal Pool. Maxner states that under the Stormwater Management Standards discharge to Vernal Pools, which are considered Outstanding Resource Waters, must meet Stormwater Standard #6. Maxner states there is no direct discharge into the vernal pool as the applicant has proposed detention basin discharge via level spreaders at 115 feet from the edge of the vernal pool at their closest point, and 100 feet from the BVW that surrounds the vernal pool at their closest point. Maxner again refers members to Dr. Chiang’s May 3, 2005 letter. Maxner states the Commission may want to think about requiring water quality monitoring for this Vernal Pool as suggested in the draft Special Conditions. Johnson agrees that there are no direct impacts to the Wetland B system, but would like to keep monitoring as a condition of the Order. Squibb states that long term monitoring should be required. Goodenough states that she finds the wetland resource areas are significant to the interests listed. Members agree with these findings. Maxner states the next wetland system to be discussed is Wetland C, and reads off the following: Wetland C: Consists of Bordering Vegetated Wetland (BVW), Inland Bank to an Intermittent Stream, and an uncertified Vernal Pool, and are assumed to be significant to the following interests of the Act: Public & Private Water Supply Groundwater Supply Flood Control Storm Damage Prevention Pollution Prevention Fisheries Protection of Wildlife Habitat Maxner states there is no work proposed in the resource areas of Wetland C. She states the applicant is proposing to construct detention basin # 2 within the 100 foot Buffer zone and its discharge via a level spreader and grading is located 25 feet from the edge of the BVW at its closest point. She states under the Stormwater Management Standards, discharge to Vernal Pools, which are considered Outstanding Resource Waters, must meet Stormwater Standard # 6. However, there is no direct discharge into the vernal pool, as the applicant has proposed detention basin # 3 discharge via level spreader and grading at 199 feet from the edge of the vernal pool at its closest point, and 150 feet from the BVW that surrounds the vernal pool at its closest point. Maxner states the Commission 3 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 4 of 15 may want to think about requiring water quality monitoring for this Vernal Pool as suggested in the draft Special Conditions. Johnson states a major point of the public hearing discussion was whether the BVW of the entire Wetland C system encompasses the vernal pool, and the Commission is presented with two differing views; the applicant’s consultant contends that its does not, and the Commission’s wildlife expert contends that it is contiguous. Johnson states the definition of encompass is pretty clear, which means to surround and states that he is not inclined to find the entire system to encompass the vernal pool. Cademartori states that there is no question that the entire Wetland C system is a contiguous system, but the encompassing issue is one to be settled under the Ordinance decision. Goodenough states that the Commission must work with the State Regulations and what regulatory authority is granted under them for this part of the decision. Maxner reminds that Commission of making a finding of significance of the resources to the listed interests. Paluzzi states it seems clear that all activity related to Wetland C meets the State Regulations as there is no work proposed directly within any of the resource areas, and believes all the resource areas are significant to the interests listed. Goodenough states she agrees, and points out that the Regulations have no performance standards for work in the Buffer Zone. Members agree with these findings. NE Wetland: Maxner explains this wetland was subject to review by the Commission during the hearing for 44 Boyles Street, a project for the construction of a single-family house DEP File #5-768, and designated it an Isolated Vegetated Wetland. However – evidence of a connection to the 48 Boyles Street Wetland C BVW and Vernal Pool was detected during site visits conducted by members of the Commission and staff and running water discharging from this wetland down gradient to Wetland C system was seen and heard, some scour was seen at the discharge point and a little distance down gradient. She states the Commission may want to make a finding that, in light of this new information during this application process, whether or not it considers it isolated or otherwise. She states there is a slight increase in volume to this wetland from detention basin # 3 and this may translate into increase runoff into the down gradient BVW and Vernal Pool. Cademartori states that the DEP’s definition would need to be met, DEP would probably only consider connection if there was a clear channel by way of an Intermittent Stream, but he is convinced there is a surface water connection. Paluzzi states if there is a channel, we could assume it’s connected. Johnson states that it would seem inappropriate to change the determination of the resource area long after the hearing was closed for 44 Boyles Street. Goodenough states that new information can be introduced during new hearings and the Commission, she believes, is obligated to consider it as it comes to light. Squibb states he would be inclined to find that the NE Wetland is a Vegetated Wetland hydraulically connected to Wetland C by way of surface water connection and leave it to the State to prove otherwise. Maxner states the Commission is free to make that determination and still approve the project and she doesn’t think that the connection would render the project un-approvable. Goodenough moves in favor of finding the NE Wetland and Wetland C to be connected as Squibb described. Squibb states that he would be inclined to find it significant to the interests of 4 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 5 of 15 the Act as listed for other similar resource areas. Members agree with these findings. Wetland D: Contains Bordering Vegetated Wetland (BVW), and Bank of Intermittent Stream, and is assumed to be significant to the following interests of the Act: ?? Public & Private Water Supply ?? Groundwater Supply ?? Flood Control ?? Storm Damage Prevention ?? Pollution Prevention ?? Fisheries ?? Protection of Wildlife Habitat Maxner states the applicant is not proposing any work in the BVW, Bank of intermittent stream or 100-Foot Buffer Zone of Wetland D. Goodenough states that she would find the resource areas to significant even though no work is proposed in those areas. Members agree to these findings. Maxner states the Commission now needs to develop an Order of Conditions for governing the project under the Act. Members of the Commission proceed to discuss and adopt the Commission’s Standard Boilerplate Conditions as well as the following Special Conditions: 1. Prior to any work the applicant shall submit to the Conservation Commission calculations and supporting materials demonstrating that pre-construction design storm volumes are approximated at post-construction design points. 2. Prior to any work the applicant shall submit to the Conservation Commission for approval a sequencing plan for construction and sedimentation control with supporting plans and details as appropriate. All components of roads and drainage structures shall be substantially completed prior to work on any individual house lots in the subdivision. 3. The engineer shall provide a copy of the NPDES Stormwater Pollution Prevention Plan to the Commission prior to site clearing and grading. 4. Prior to any work, proposed limits of work shall be clearly flagged and confirmed by the Conservation Commission and/or its agents. As well all wetland resource areas and 100-foot buffer zones shall be clearly flagged. No work or equipment shall be permitted in the buffer zone unless indicated and part of the limits of work. 5 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 6 of 15 5. All flags used for the above purpose shall be of a color different from the other flagging used on the site. 6. Water quality in the B-series vernal pool and the McAulliffe vernal pool shall not differ significantly following the completion of the project from pre-development conditions. 7. Pre-development water quality shall be determined by analysis of a minimum of three (3) samples at each vernal pool for metals at base flow conditions and VOC’s, phosphorus, nitrogen, ammonia, total suspended solids and total dissolved solids at high flow conditions using method 8240. The results of the analysis shall be submitted to the Conservation Commission, together with a written report detailing the sampling conditions, methods of analyses, detection limit, sensitivity and analytical results. 8. A pedestrian walkway shall connect the sidewalk of Whitehall Hill Circle to the parcel identified as “Open Space”, and a plan depicting such shall be submitted to the Commission for review and approval. 9. The parcel identified as “Open Space” shall be placed under a Conservation Restriction to be held by a separate appropriate party other than the Homeowners Association, restricting further development or subdivision of said parcel. 10. The limit of the No-Disturb Zone shall be permanently marked on all lots where wetland buffer zone occurs. The contractor shall install granite, stone or concrete markers at intervals not longer than 25 feet and each post shall have a sign denoting the No-Disturb Zone. 11. The applicant shall provide the contact information of the newly formed Homeowners Association to the Commission within 10 days of the legal formation of such an organization. 12. The Homeowners Association shall prepare a formal maintenance schedule to include street sweeping, maintenance of culverts, catch basins and drainage basins. The maintenance schedule shall be in accordance with the Operations and Maintenance Plan included with the Notice of Intent dated October 2004. A copy of this document shall be placed on file with the Conservation Commission prior to issuance of a Certificate of Compliance. 13. The applicant shall provide the name of the person responsible for drainage structure maintenance during construction. Also, the applicant shall provide the name and contact information of the eventual Homeowners Association who will take responsibility for street maintenance after construction. 6 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 7 of 15 14. Prior to transfer of any lot in the development, a homeowner’s association, established for maintaining the drainage system, shall be established and a contractor responsible for maintenance of the system shall be secured. 15. Prior to issuance of any building permit for each house, plans and calculations prepared and stamped by a registered professional engineer shall be submitted showing the location, design and capacity of the dry wells. 16. The contractor shall provide an independent erosion monitor to oversee the installation and maintenance of the erosion control barriers. The erosion monitor shall be a professional engineer or wetland scientist and the name and contact number of the monitor shall be provided to the Commission. 17. The independent erosion monitor shall visit the site at least once weekly during active construction to inspect the erosion controls at the site that are within 100 feet of a wetland resource area. Sediments from the barriers shall be removed as soon as they reach six inches in depth. The independent monitor and/or the Conservation Commission or its Agent shall also evaluate the need for additional erosion controls and advise the contractor accordingly. 18. The erosion monitor shall submit a report bi-weekly to the Commission or its Agent stating dates on site, status of construction, any erosion control maintenance requirements, and who at the project site was informed. 19. The erosion controls shall be installed as indicated on the plans. The contractor shall keep a supply of 20 extra hay bales and 50 feet of silt fence on site to be used for usual maintenance and repair of the erosion control barrier and for emergency use. The extra hay bales shall remain covered at all times. 20. The contractor shall direct all site runoff though the sedimentation barriers. 21. All discharge for dewatering activities shall be located to prevent siltation to the adjacent resource areas. All dewatering discharge shall be directed through a hay bale sediment trap, filter bag or other means as approved by the project engineer and/or the Conservation Commission or its Agent. 22. The contractor shall protect all catch basins on adjacent streets by installing silt sacks under the catch basing grates. 23. The contractor shall install a tracking pad at the exit of the site where construction vehicles will enter onto municipal streets. 24. Stormwater management structures shall be installed in the initial part of the road construction. 7 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 8 of 15 25. All drainage structures will be cleaned of accumulated sediment during construction no less than one time per month. Any erosion gullies formed on the detention basins shall be repaired immediately and stabilized with mulch or other means approved by the project engineer. 26. The contractor shall sweep the streets as needed or water the roadways during construction to minimize airborne dust. 27. All drainage structures and stormwater basins should be constructed or installed under the supervision of a professional engineer. The engineer shall certify in writing to the Commission that the drainage structures have been installed correctly. 28. Following completion of construction and before a Certificate of Compliance may be issued, water samples shall be again collected and analyzed for comparison with original samples, and the results shall be compared and the results shall be reported to the Conservation Commission. No Certificate of Compliance shall be issued until post-development monitoring demonstrates that the water quality does not differ significantly from pre-development conditions. 29. Water quality shall continue to be analyzed at the expense of the applicant or any future landowner of the land on an annual basis according to the same procedures followed prior to and immediately following project construction. A report shall be submitted to the Conservation Commission. This condition shall continue in effect following the issuance of a Certificate of Compliance for 5 years. 30. If over time, the water quality in the post-development samples differs significantly from the pre-development quality, the property owner shall meet with the Conservation Commission to determine additional measures to be implemented to restore water quality to its pre-development condition. 31. No use of chemical pesticides or herbicides shall be used throughout the entire subdivision. This condition shall remain in force permanently and shall be recorded in the Homeowners Association documentation as well as all Certificates of Compliance issued for the subdivision and individual house lots. 32. No road salt, sodium chloride, or other de-icing chemicals shall be used on paved surfaces, and any arrangement for snow removal shall so stipulate to protect down-gradient vernal pool resources. The applicant shall submit a proposed de- icing program detailing the constituents of the de-icing products to be used. Permanent signs designating no salt zones shall be displayed in prominent locations. This condition shall remain in force permanently and shall be recorded in the Homeowners Association documentation as well as all Certificates of Compliance issued for the subdivision and individual house lots. 8 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 9 of 15 33. After construction, the Homeowners Association shall maintain all culverts, drainage catch basins and collection/detention basins in perpetuity. Johnson moves to approve the project under the State Wetlands Protection Act and Regulations subject to the Commission’s Standard Boilerplate Conditions and the above- discussed Special Conditions. Seconded by Goodenough. Cademartori abstains. Motion carries 4-0-1 (one abstension). Paluzzi suggests that a 5 Minute recess be taken before the Commission begins its deliberation under the Ordinance. Discussion Pursuant to the Beverly Wetlands Protection Ordinance and Regulations Maxner refers the Commission members to the second bullet sheet to guide discussion under the Beverly Wetlands Protection Ordinance and Regulations. Maxner states that she has listed each wetland resource area found in each wetland system that are located throughout the site, and listed the interests those resource areas are presumed to be significant to and reads off the following: Wetland A: Consists of Bordering Vegetated Wetland (BVW), Inland Bank to Intermittent Stream, 100-Foot Buffer Zone and 25-Foot No-Disturb Zone, and are assumed to be significant to the following interests of the Ordinance: ?? Private & Public Water Supply ?? Groundwater Supply ?? Flood Control ?? Storm Damage Prevention ?? Prevention of Pollution ?? Fisheries ?? Protection of Wildlife Habitat ?? Prevention of Erosion & Sedimentation Maxner states there is no work proposed within the BVW of Wetland A. She states the applicant is proposing to alter 42 linear feet of Bank resource area for the roadway crossing, and reminds the Commission that the Ordinance and Regulations do not have specific performance standards for Bank, so the Ordinance defers to the 310 CMR 10.54 (4)(a) 1-5 for this resource area. She states that the Commission found the work to be in conformance with this provision of the State Regulations, but that there are other sections of the Ordinance and Regulations that apply to this work. Johnson states, in his opinion, the resource areas are serving to protect the interests of the Ordinance as just listed. Members agree with this finding. 9 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 10 of 15 Squibb states the applicant is asking for a waiver for work within the 25-Foot No- Disturbance Zone (NDZ) as most of the NDZ on either side of the bank is being completely constructed upon. Maxner refers the Commission to Bill Manuell’s letter dated March 14, 2005 asking for the waiver and states the Commission needs to make a finding on whether the waiver criteria pursuant to the Beverly Regulations, Section V C 1 & 2, have been met for this incursion. Goodenough states she has carefully read this waiver request is not convinced that the criteria have been met. She states that in Manuell’s discussion of alternatives, the focus was centered heavily upon the applicant’s economic profit in terms of the number of housing units that can be fit onto the parcel. She states that the waiver criteria and the Commission’s policy clearly address the incursion into the NDZ and establishes a way of determining if the project cannot be done without the incursion, and end economic profit is not a criteria to be considered. She understands that the policy talks about weighing the cost of alternative designs not how many houses result in this or that alternative. She is not convinced that the project could not go forward without going into the NDZ, and thinks there are alternatives that would not involve incursion into the NDZ. She states that she has not seen any alternatives provided by the applicant to show that they would not work. Squibb agrees, and recalls the concept layout or rendering that the neighborhood group presented to the Commission during one of the public hearings, which avoided the wetlands and the NDZ’s. He states the 25-Foot No Disturb Zone is the performance standard for the Buffer Zone and they have not met the performance standard, nor have they met the waiver criteria. He states he believes that the applicant would still be able to do a residential subdivision without crossing the stream or disturbing the 25-foot zone and essentially bisecting the site. He states the waiver request discussed legal constraints imposed by the Planning Board that would prohibit long dead end streets and such, but understands that the Planning Board granted several waivers from the subdivision standards for this project, and thinks this argument is not valid. He states that waivers from the Planning Board were apparently never explored in order to avoid this area and no information was provided on exactly which waivers the Planning Board would not grant. Johnson states that it does seem clear that there are alternatives to incursion into the NDZ and asks if members think the other criteria are met. Paluzzi states that there was no convincing argument provided by the applicant to show that there would be no adverse impact to the resource area, and thinks that there is almost no mitigation offered to off set the incursion. Goodenough agrees and is not impressed with the mitigation package. She states that smaller projects have offered much more in mitigation, but the applicant has not offered any mitigation that is commensurate with the extent and scope of encroachment that is proposed. The only mitigation that she can detect is the 50/50 split to alleviate flooding of houses down stream at Morrison Avenue. 10 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 11 of 15 Maxner refers the Commission to Section V E. 1. Roadways and asks the Commission for its interpretation of this provision. Paluzzi states that he would assume that Bank would be an applicable resource area to this part of the Regulations. Goodenough states that this provision was considered and placed in the Regulations to allow access to a site when there were no upland alternatives for constructing a road or driveway and is in agreement with Paluzzi. Squibb states that the site has upland access by way of Birch Woods and Boyles Street and it seems that provision was established to protect against unnecessary resource area disturbance. Squibb states that the preamble for Section V provides an explanation as to what instances a waiver is appropriate. Maxner states the next wetland system to consider is Wetland B and reads off the following: Wetland B: Consists of Bordering Vegetated Wetland (BVW), Inland Bank to Intermittent Stream, Certified Vernal Pool, 100-Foot No Disturbance Zone, 100-Foot Buffer Zone and 25-Foot No Disturbance Zone, and are assumed to be significant to the following interests of the Ordinance: ?? Public & Private Water Supply ?? Groundwater Supply ?? Flood Control ?? Storm Damage Prevention ?? Pollution Prevention ?? Fisheries ?? Protection of Wildlife Habitat ?? Prevention of Erosion & Sedimentation Maxner states there is no work proposed within the BVW, Inland Bank, Vernal Pool or 100-Foot No-Disturbance Zone to the Vernal Pool or the 100-Foot Buffer Zone and 25- Foot No Disturb Zone. No work is proposed in the Vernal Pool, however, pursuant to Section IV, Stormwater Management, discharge to Vernal Pools, which are considered Outstanding Resource Waters, must meet Stormwater Standard # 6. However, there is no direct discharge into the vernal pool as the applicant has proposed detention basin discharge via level spreaders at 115 feet from the edge of the vernal pool at their closest point, and 100 feet from the BVW that surrounds the vernal pool at their closest point. Johnson states, in his opinion, the resource areas are serving to protect the interests of the Ordinance as just listed. Members agree with this finding. Cademartori states that according to the performance standards for the 100-Foot No Disturbance Zone for Vernal Pool, Section III A. 5. d., work shall not obstruct migratory pathways of vernal pool breeders. He states that it is his understanding migratory pathways for the vernal pools on site were never determined and the applicant’s wildlife 11 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 12 of 15 habitat evaluation did not include that information. Squibb states that, Dr. Windmiller, the Commission’s independent wildlife biologist, and Michael DeRosa the neighbor’s wetland expert both reported that the applicant’s habitat evaluation for Wetland C was inadequate and that this information could easily be obtained. He states that based on Dr. Windmiller’s report and DeRosa’s testimony, he would be inclined to apply the standard to the Wetland B vernal pool as well. Johnson states that the migratory pathways are critical and is not confident the road and detention basin work could be conditioned to protect those pathways. Goodenough agrees, and states that she would not be comfortable conditioning an unknown, and thinks the Commission is at a disadvantage without all the pertinent data to make an informed decision. Cademartori states that the plan as designed essentially bisects the site and communication between resource areas would most definitely be interrupted, but to what degree it would be hard to tell without information about the pathways. He believes that the Regulations are clear on protection of this habitat feature. Maxner states the next wetland system to be discussed is Wetland C, and reads off the following: Wetland C: Consists of Bordering Vegetated Wetland, Inland Bank to an Intermittent Stream, and Un-Certified Vernal Pool, 100-Foot No Disturbance Zone, 100-Foot Buffer Zone, and 25-Foot No Disturbance Zone, and are assumed to be significant to the following interests of the Ordinance: ?? Public & Private Water Supply ?? Groundwater Supply ?? Flood Control ?? Storm Damage Prevention ?? Pollution Prevention ?? Fisheries ?? Protection of Wildlife Habitat ?? Prevention of Erosion & Sedimentation Paluzzi states, in his opinion, the resource areas are serving to protect the interests of the Ordinance as just listed. Members agree with this finding. Johnson states he is unclear as to the final disposition of the “encompassing” issue raised for the vernal pool in this wetland. Goodenough states the Commission may not need to make a final determination on this point as the migratory pathway issue seems to more critical in terms of protection of habitat. Johnson agrees that the pathways are very important and he is unsure if they can be protected with conditions on roadway and detention basin work, especially if they are unknown. 12 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 13 of 15 Squibb agrees, and states that there is no known data on actual habitat usage and migratory pathways as indicated in Dr. Windmiller’s report and by DeRosa’s testimony and this seems to be the main issue here. He states that the Commission is unable to protect the habitat if it doesn’t know what areas are most critical to the creatures that use it. He states that he was not convinced by the applicant’s habitat evaluation that there will be no negative impact on wildlife habitat, and it seems the Commission’s wildlife expert has doubts too. Maxner states the next wetland system to be discussed is Wetland E or North East Wetland. Members agree to apply the same findings as discussed under the Wetlands Act as far as connectivity to Wetland C. Maxner states that additional resource areas would include the 100-Foot Buffer Zone, the 25-Foot No-Disturbance Zone. Members agree that these resource areas are significant to the following interests: ?? Public & Private Water Supply ?? Groundwater Supply ?? Flood Control ?? Storm Damage Prevention ?? Pollution Prevention ?? Fisheries ?? Protection of Wildlife Habitat ?? Prevention of Erosion & Sedimentation Maxner explains that there is no work proposed within the resource areas of this system. She states that the applicant has proposed detention basin # 3 discharge by way of a level spreader and associated grading to be 25 feet from the edge of the NE Wetland at its closest point, and is respecting the 25-Foot No-Disturbance Zone requirement. Paluzzi states, in his opinion, the resource areas are serving to protect the interests of the Ordinance as just listed. Members agree with this finding. Goodenough states that based on the lack of information with regard to the vernal pool migratory pathways, she would not be able to determine the impact of this portion of the project on wildlife habitat. Squibb agrees, and states that it is an unknown; without any information about the pathways or habitat usage as indicated by Dr. Windmiller the Commission has no facts to base its decision. Paluzzi agrees, and states that the detention basin location may have a negative impact on the upland habitat of the vernal pool species as well as their migratory pathways, but without any information the Commission could not make a finding either way. Maxner states that the last wetland system to discuss is Wetland D system and reads from the following: 13 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 14 of 15 Wetland D: Contains Bordering Vegetated Wetland, Inland Bank to Intermittent Stream, 100-Foot Buffer Zone and 25-Foot No-Disturbance Zone, and are assumed to be significant to the following interests protected by the Ordinance: ?? Public & Private Water Supply ?? Groundwater Supply ?? Flood Control ?? Storm Damage Prevention ?? Pollution Prevention ?? Fisheries ?? Protection of Wildlife Habitat ?? Prevention of Erosion & Sedimentation Maxner explains that no work is proposed within any of the resource areas of Wetland D. Paluzzi states that the resource areas would still be significant to the interests regardless of whether work is proposed in or near them. Members agree with this finding. Goodenough motions to accept the findings as just discussed for all wetland systems. Seconded by Johnson. Cademartori abstains. Motion carries 4-0-1 (with one abstention). Goodenough motions to deny a project based upon the findings as discussed under the Beverly Wetlands Protection Ordinance and Regulations. Seconded by Johnson. Cademartori abstains. Motion carries 4-0-1 (with one abstention). Johnson states the Commission may wish to consider securing the services of outside counsel considering the gravity of this decision and its need for an experienced attorney in defending Commission’s decisions under bylaws. Goodenough agrees, and states that considering the tremendous work load the City Solicitor is burdened with, the Commission would need someone to be able to devote concentrated time to the defense of the Commission’s decision. Squibb states that this is a precedent setting decision and would also like to see expert counsel with experience in environmental law and would be supportive of securing outside expert counsel. Members agree that this should be pursued if at all possible. OTHER BUSINESS Beverly Harbor, DEP #5-875 – Massachusetts Division of Marine Fisheries Maxner states she has prepared a draft Order of Conditions for this project with input from Julie Barber of Marine Fisheries. She reviews the proposed conditions to govern work for the installation of cobble and boulder reef to enhance hard bottom habitat as proposed by MA Division of Marine Fisheries. She asks the Commission for input and a vote to issue the Order if it is satisfactory. 14 Beverly Conservation Commission June 2, 2005 Special Meeting Minutes Page 15 of 15 Johnson motions to approve the project and adopt the conditions as written. Seconded by Cademartori. All in favor. Motion carries 5-0. Vitale Site, DEP File # 5-774 – New England Power Maxner states that there are minor modifications for plantings along the northerly property boundary where the contractor encountered more fly ash than expected. She explains that after discussing this with the wetland scientist and lead engineers on site, the area needed to be further excavated, but that she recommended that it be restored to its original condition as an isolated vegetated wetland. She asks the Commission if it would like more information and if members were comfortable with providing verbal approval for this work. Members review the area on the plan, and agree that since the area is being returned to original conditions, no further review is needed. Maxner states that Mike Lotti from New England Power, wants to provide a project update to the Commission sometime in the fall at a regular meeting. Adjournment Johnson moves to adjourn. Seconded by Goodenough. All in favor. Motion carries 5-0. Meeting adjourns at 10:30 p.m. 15