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:
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June 2, 2005 Special Meeting Minutes
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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
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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
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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:
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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.
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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.
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