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2008-09-09 CITY OF BEVERLY PUBLIC MEETING MINUTES Date: Board: Members Present September 9,2008 Conservation Commission David Lang, Tony Paluzzi, Gregg Cademartori, Mary Reilly, Dr. Mayo Johnson, Bill Squibb Members Absent: Ian Hayes Others Present: Amy Maxner - Environmental Planner Recorder: Amy Maxner Lang calls the meeting to order at 7:00 p.m. at Beverly City Hall, 191 Cabot Street, Beverly, MA. ReQuests For Determination of Applicabilitv Cont: 890 Hale Street - Darrell Crate John Dick, Hancock Associates, requests that the matter be continued to the Commission's October meeting. Maxner states the October meeting is scheduled for the 21 st. Paluzzi moves to continue. Johnson seconds the motion. Motion carries 6-0. New: 431 Hale Street - Landmark School Maxner reads the legal notice. Rick Soreal, Director of Maintenance and Grounds for Landmark, states that the school's Governor's Landing property has a wrought iron fence that is at the top of the coastal bank and it is starting to fail and become unsafe. The school would like to remove that existing fence and replace it with a white vinyl fence a few feet set away from the bank. Paluzzi asks how the posts will be secured. Soreal states they will be traditional post holes dug by hand to a depth that ensures stability of the fence. Paluzzi asks how the existing fence will be removed. Soreal explains that it will be cut at ground level and that some clearing of shrubs and vines will be necessary to allow access to the existing fence to be cut and removed. Lang asks if they anticipate hitting ledge. Soreal suspects that the soils are deep enough to allow for postholes and they will adjust as necessary in the field. Maxner asks if the bank side of the fence will be mowed. Soreal states that the area between the fence and the bank will be left to grow in naturally and will not be mowed. Beverly Conservation Commission September 9, 2008 Meeting Minutes Page 2 of 11 Squibb asks if the new fence will be tied into the existing stonewall to serve as protection to people on that side. Soreal states it will not, as the topography is very gentle and the seawall is not very high in this area as people access the beach from this point in the wall, they can just jump right down to the beach. Maxner asks if there will be room between the bottom of the fence and the ground to allow for wildlife movement. Soreal states he can order such a fence and asks if space between the barristers would suffice for this. Members are amenable to this design. There being no further questions or comments, Paluzzi moves to issue a Negative # 3 Determination with the Special Condition: 1.) The fence shall be constructed so as to allow for wildlife movement between the Bank and the upland side of the fence. Johnson seconds the motion. Motion carries 6-0. Recess For Public Hearim!:s Paluzzi moves to recess for public hearings. Johnson seconds the motion. Motion carries 6-0. Cont: 232-234 Essex Street. DEP File #5-985 - Robert Walker. Walker Realtv. LLC John Dick, Hancock Associates, addresses the Commission and states that the landscape plan has been submitted but is not yet completed. He states that the plants proposed within the 100-Foot Buffer Zone will be exclusively native and there will be detailed specifications within the 25- Foot No Disturbance Zone. He states this landscaping information is provided pursuant to the Commission's request at the last meeting. He states that the increase in 25-Foot No Disturbance Zone goes from 5,000 square feet to 10,000 square feet with roughly 218 native shrubs to be planted on 18-foot centers. There are Norway Maples along the pond bank that will be less likely to further colonize with the proposed dense plant installation. He also explains that he is prescribing selective removal and targeted herbicide application to the invasive species along the bank that includes Bittersweet, Multi Flora Rose, Purple Loosestrife and Buckthorn to be cut and treated with Glycophosphate. He goes on to explain that the proposed seed mix for the bank is an Ernst See Mix, which includes Senna Henicarpa that is considered endangered specie of grass that he believes will do well in this setting. Lang asks if the applicant has provided alternatives analysis for the location of the roadway and iflocations outside the 25-Foot No Disturb Zone have been considered. Dick states that the current plan before the Commission is the preferred plan as land is expensive and this maximizes the economic potential for this particular parcel of land. He states that no other alternatives were considered, as this is the choice made by the developer. Cademartori states that the same questions have come from the Commission throughout this review, which have not been answered satisfactorily. He believes that the Commission's requests for information have not been adequately addressed, and that the applicant has not provided the necessary information to meet the burden of proof to gain a waiver from the 25- Beverly Conservation Commission September 9, 2008 Meeting Minutes Page 3 of 11 Foot No Disturb Zone. He does not believe the Commission can grant a waiver in the absence of the necessary information and alternatives analysis as prescribed in the Regulations. Lang agrees noting that he is not convinced there are no other alternatives to the roadway design or even building and parking lot size and configuration. Lang asks if there are any questions from the public. Glen Sinsigalli, 221 Essex Street, expresses his concern about drainage and flooding in the area and states that he and his neighbors have experienced flooded basements. He provides an article about porous asphalt and asks if the Commission will consider requiring that this be used for the parking lot. He also asks about the existing hedge along the edge of Essex Street. Dick states that there will be landscaping in the front of the lot at the street but that the hedge will have to be removed and explains that the project cannot make flooding conditions worse and they are required by regulation to control their own storm water on site before it reaches the pond. Squibb states that he is not in favor of the project as proposed because the Commission has not been presented with alternatives that have less impact. Reilly agrees noting that there doesn't seem to be a rationale for the need for such a large parking lot and building. Dick states that they believe they have met the Regulations since this is a pre-existing condition that is being improved with stormwater management in both quantity and quality, which provides commensurate mitigation. He states the project does increase a naturalized No Disturb Zone. He believes the project does comply with all applicable regulations. Lang asks if there are any further questions from the Commission or the public. There are none. Johnson moves to close the hearing. Seconded by Paluzzi. All members are in favor, motion carries 6-0. Cont: 76 Paine Avenue. DEP File #5-980 - Jack Swansbun!: John Dick, Hancock Associates, addresses the Commission and explains that his client will be submitting request for proposals to at least four more engineering consultants and he expects to have the bids ready for the Commission's review for the September 30th meeting. Cademartori states that he is not sure why the Commission is entertaining this approach as it has every right to proceed with securing VHB to do the review. Dick states that his client is concerned that the bid process the Commission used is not in compliance with the public procurement laws and believes he has the right to consider competing bids especially since VHB's estimate is more than what Hancock has charged to prepare the initial plans and calculations. Maxner states that she has consulted with the City's Finance Director and Procurement Officer and they have informed her that these types of contracts are exempt from public procurement laws. Beverly Conservation Commission September 9, 2008 Meeting Minutes Page 4 of 11 There being no further questions or comments, Johnson moves to continue the hearing to the September 30th meeting. Seconded by Paluzzi. Motion carries 6-0. Cont: Pole Swamp Lane. Lot Ie. DEP File #5-990 - John Soursourian Chris Sparages, Hayes Engineering, states that the applicant John Soursourian and his wife Judith Klien are in attendance. He states that the Commission requested additional information pending test pit investigation with the Board of Health conducted last week. He explains that that Test Pit L4 showed bedrock 3 feet below grade and per Title 5, there must a 25-foot buffer from ledge to leeching field. He states that the leeching field is smaller than originally proposed by a few feet. No other changes to the plan were made. Cademartori asks if the interface between the septic system and the detention basin will pose a problem. Sparages states that if the detention basin intercepts groundwater then there must be a 25-foot separation, but this basin does not intercept groundwater so there is no problem in that regard. Lang asks if there are any further questions from the Commission or the public. There are none. Paluzzi moves to close the hearing. Seconded by Reilly. Motion carries 6-0. Maxner states that the Commission will be taking the agenda out of order to discuss the Minor Modification for 105-107 Preston Place, DEP File #5-971. Cont: 105-107 Preston Place/Pole Swamp Lane. DEP File #5-971 Minor Modification- John Soursourian Chris Sparages, Hayes Engineering, states that the Commission asked for additional information relative to the proposed change in the stormwater treatment for the proposed roadway. He explains that the catch basin is to be replaced with a treatment swale and the plan has been revised showing arrows indicating the direction of flow toward the swale to better illustrate how grading must be done to catch the water and direct it toward the swale. He states that both this roadway plan and the plan for Lot 1 C just discussed show this change, and a rip rap apron has been added along one shoulder of the road. Cademartori asks if there will be any treatment to the curb. Sparages states that there will be a cape cod berm. Cademartori questions the longevity of the cape cod berm as it will most likely experience damage by snow plowing and the berm is a critical element of the stormwater treatment chain that must be maintained. Soursorian states that how the berm is constructed is critical to its longevity and he explains that the berm must be installed after the binder has been put down and solidly packed with soil behind it before the final paving is completed. Cademartori states that there needs to assurance that the berm will be maintained in good repair. Discussion ensues regarding the responsibility for maintenance of the stormwater system and Maxner reads the original condition that spoke to this issue. Beverly Conservation Commission September 9, 2008 Meeting Minutes Page 5 of 11 Maxner asks that the O&M Plan be revised to detail proper maintenance of the grassy swale for homeowners and contractors to be informed. Sparages agrees. There being no further questions or comments, Paluzzi moves to approve the Minor Modification subject to the following Special Conditions: 1. The applicant shall submit an addendum to the Operation & Maintenance Plan detailing a maintenance schedule for the proposed grassy swale. 2. Long-term maintenance of stormwater structures shall be the responsibility of property owner(s) as the structures fall within their property boundaries including such boundaries extending to the centerline of the roadway. This condition shall run in perpetuity and shall survive the issuance of a Certificate of Compliance. 3. The proposed cape cod berm shall be maintained in good repair, as its integrity is integral to the successful function of the stormwater system. This condition shall run in perpetuity and shall survive the issuance of a Certificate of Compliance. Seconded by Johnson. Motion carries 6-0. New: 20 Grover Street - John Bockoven Maxner reads the legal notice. Mike Page from Griffin Engineering addresses the Commission on behalf of the applicant. He explains existing conditions on the site, which includes delineated BVW flags AI-A8 in the rear section of the lot, which constitutes about 40% of the lot area. There is an IVW in the middle of the parcel flags BI-B9 and this is governed by the Beverly Ordinance. Brendan Quigley, PWS, flagged both wetlands on August 4,2008. He explains the flood zones on site including Zone C and Zone B in rear portions of the site. Page explains the work involves Buffer Zone restoration pursuant to an Enforcement Order issued by the Commission, construction of a barn, garage and driveway loop, removal of koi ponds, construction of a wetlands boardwalk and installation of 2 large victory gardens. Cademartori asks if the buffer zone restoration is completed or is it proposed. Page states that it is proposed in response to the Enforcement Order and explains that there it has been split into an upper and lower restoration area, with the lower to be planted with 20 sweet pepperbush and 20 arrowwood, and the lower planted with 20 serviceberry. Reilly asks how the invasive plants be dealt with. Page states that they will be removed manually with clippers and no herbicides. Lang asks if the dumped and stockpiled debris has been removed. Maxner states that Mr. Bockoven went to work right away on removing all of the dumped debris and things look much better in that regard. Beverly Conservation Commission September 9, 2008 Meeting Minutes Page 6 of 11 Reilly asks for details on the wetland boardwalk. Page states that it will be 12 inches over the wetland, 4 feet in width and about 125 feet long and Mr. Bockoven plans on using for educational purposes, as he is a naturalist teacher at Drumlin Farm in Lincoln. Paluzzi states a site visit would be beneficial. Members agree. Lang asks if there are any questions from the public. There are none. Paluzzi moves to continue the hearing to the September 30th meeting pending a site inspection on Saturday, September 20th at 8:30 a.m. New: 4 Birch Woods Drive - Steven Edelstein Maxner reads the legal notice. Jesse Blanchette, Griffin Engineering, states the applicant, Steven Edelstein who is here tonight, is proposing several activities within the 100-Foot Buffer Zone to an intermittent stream and BVW. He reviews the resources on site that include Bank, BVW, Bordering Land Subject to Flooding (a Zone B) and 100-Foot Buffer Zone. The applicant is proposing to install an inground pool, cabana, house addition and mudroom, expanding a basketball court, removing the existing subsurface septic system and connection to the City sewer system and gas utility connection by way of a temporary stream crossing and driveway resurfacing. He goes on to detail the proposed elements of the project noting that the utility crossing is a limited project and they are requesting a waiver from the 25' NDZ to allow for temporary disturbance to the bank BLSF and BVW. Lang asks if the pool cabana will involve removal of trees or other vegetation. Blanchette resonds that it will be placed within an existing grassy lawn area and no trees will be removed for any of this project. Cademartori asks if the utility and sewer connection can be placed within the existing driveway. Blanchette states that this option was considered but it is not possible because there is not enough depth to get the conduits below frost line due to the large culverts underneath the driveway. Squibb asks if they know for sure there is a sewer connection in Birch Woods Drive. Blanchette states there is a sewer connection stub and the exact location will be determined. Reilly asks if the stream is intermittent as the USGS shows it as perennial. Steven Edelstein states that he has lived there for many years and observed that the stream does dry up in the summer time. Blanchette states that he has researched the Commission files and other filings have indicated intermittent status. Paluzzi asks what depth the bottom of the pool will be. Blanchette states it will be about 6 to 8 feet in depth. Lang asks if they are sure they will not be in groundwater at that depth. Blanchette states that he is not sure. Beverly Conservation Commission September 9, 2008 Meeting Minutes Page 7 of 11 Paluzzi states a site visit would be beneficial. Members agree. Lang asks if there are any further questions from the Commission or the public. There are none. Paluzzi moves to continue the hearing to the September 30th meeting pending a site visit on Saturday September 20th at 9:15 a.m. Old/N ew Business Cont: 16 Bav View Avenue - Special Permit Pork Chop Lot - Discussion/Recommendation Maxner provides a recap on the issues at hand for this particular application to the Planning Board. This application is for a special permit pork chop lot and she had canvassed the Commission by email as to whether members wished to provide recommendations for maintaining construction outside the 100-Foot Buffer Zone to the Coastal Bank, she received positive feedback and drafted a letter which was edited by a couple of the members by email. The applicant's attorney raised issue with this process and the recommendation and the Commission voted to rescind that letter and continue discussion tonight. Lang asks for clarification as to the process in the past. Maxner states that she usually writes comment letters on behalf of the Commission but since this was a Special Permit she thought more input from the Commission made sense. Lang states that it is not very clear as to what the Planning Board is really looking for from the Commission, he wonders what exactly the Board needs in terms of the Commission's expertise. Without more clarification in this regard he is reticent to provide definite recommendations. He states short of explaining the Commission's jurisdiction and permitting process, there are no direct questions to respond to. Cademartori agrees and notes that the Commission could better provide recommendations if the Planning Board wanted specific feedback on a particular element of the project. He also notes the plan does not show the proposed houses or any other site information. Maxner agrees noting that even topography and the limit of the 100' Buffer is not depicted on the plan. Squibb states that the comment letter could contain the Commission's jurisdiction and some of the things that the Commission considers that lessen impact on the resources and buffer zones. Reilly asks if the resource areas have been confirmed by an ANRAD on this site. Maxner states that this site has not been before the Commission for any kind of determination. Cademartori states that the Planning Board may wish to follow the OSRD protocol for this particular site and require that an ANRAD be filed as a condition. Discussion ensues regarding the OSRD process and the Commission's role in that regard. Paluzzi moves to authorize Maxner to write a letter indicating the Commission has no formal recommendations to offer the Planning Board on this particular application unless the Board has Beverly Conservation Commission September 9, 2008 Meeting Minutes Page 8 of 11 specific questions, and the minutes of this meeting should accompany the letter or the letter should summarize this discussion. Seconded by Reilly. Motion carries 6-0. New: 686 Hale Street. DEP File #5-891- Molly Ryan - ReQuest for Extension Maxner states the Commission has received a request for a one-year extension for 686 Hale Street which governed the dredging of a small wildlife pond and invasive plant management. She states that the project has yet to be initiated, but that all other permits have been secured and the applicant is now ready to start and make this a priority to complete. Johnson moves to issue a one-year extension, seconded by Paluzzi. All members in favor. Motion carries 6-0. New: 240 Elliott Street. DEP File #5-???926 - Bass River JDS - ReQuest for Minor Modification Peter Bazzinotti and Bill Sheehan of Bass River IDS address the Commission. Sheehan explains the project is completed including the Riverfront landscaping plan, which was approved by the Commission. He explains that the wildflower seed mix that was specified has grown and now visually dominates the river walk area and he and Mr. Bazzinotti have received complaints from the current tenant, customers of the plaza and discouraging remarks from potential tenants on the unkempt appearance of this area. He states that he has been out to the site with Mr. Bill Manuell and Ms. Maxner to discuss this problem and was told by Maxner to explore alternative planting schemes and Manuell has produced an alternative approach to the seeded areas. Discussion ensues regarding the proposed change in seed mix and Sheehan notes that the bank between the walkway and the river will not be touched, as he is mainly concerned about the area between the parking lot and the walkway which would be cut this fall and tilled to accept the new seed mix. Squibb states that the area could be planted with more aesthetics and he agrees it is not very attractive. Maxner states that she was confident that a compromise could be reached that satisfied the Commission's concerns for stabilization and habitat values and the applicants' focus on a visually appealing development. Members agree that this alternative planting plan is acceptable. Paluzzi moves to approve the Minor Modification. Seconded by Cademartori. Motion carries 6- O. Order of Conditions 232-234 Essex Street. DEP File #5-985 - Robert Walker. Walker Realty. LLC Lang states that he never remembers such unwillingness to address the Commission's questions and concerns and a complete disregard for the requirements spelled out in the Regulations. He Beverly Conservation Commission September 9, 2008 Meeting Minutes Page 9 of 11 notes that the applicant has not provided a rationale or a hardship that requires work within the 25' NDZ and the Commission has no information analyzing alternatives that would convince him that the road must be within the NDZ. Cademartori agrees noting that the first traffic island is 35 feet wide, which if reduced by even 10 feet would remove that section of road out of the NDZ. He also notes that the size of the building and the need for such expansive parking were not rationalized. He notes that it is important to bear in mind that the project is a new use of the site, they are clearing the slate for this site and he sees no support for grandfathering existing conditions when they are completely changing the use of this parcel. Squibb agrees noting that they claim to be exempt from zoning constraints and he does not see why they could not move the building and parking area as they have plenty of room to the easterly part of the site to do so. Lang expresses his disbelief at Mr. Dick's only argument for not complying with the Regulations is his client's economic considerations. He states that the Regulations do not allow for economics to be the sole reason that an alternative is not viable. Maxner reminds the Commission that it should make findings under both the State Act and the local Ordinance, and she suspects that the project is approvable under the State Act. Reilly agrees and notes that a set of conditions should be formulated to govern the project under the Act. Discussion ensues as to potential conditions for approval under the Act. Maxner reminds the Commission of its VHB consultant's recommendations for Special Conditions and reads from VHB's final letter. Members agree to incorporate these recommendations into the Order. Members agree to Standard Conditions and the following Special Conditions: 1. Prior to work commencing on site, a final landscaping plan, specifying native plant species within the 100-Foot Buffer Zone shall be submitted to the Commission for review and approval. 2. As recommended in VHB's final comment review letter dated August 20,2008, prior to work commencing on site, a separate Sedimentation and Erosion Control Plan shall be included in the plan set and it shall also include associated erosion control details and key instructional notes for installation, inspection and maintenance of these structures (such as silt fence, hay bale barriers, and stabilized construction entrance and requirement for cordoning off the proposed infiltration area prior to construction initiation). Additionally, a statement describing the requirement for construction personnel training on all aspects of the SWPP shall be included on the plan set. 3. As recommended in VHB' s final comment review letter dated August 20, 2008, prior to discharge of stormwater runoff, the proponent shall submit an illicit discharge compliance statement. Beverly Conservation Commission September 9, 2008 Meeting Minutes Page 10 of 11 4. As recommended in VHB's final comment review letter dated August 20,2008, verification that the formal Long-Term Pollution Prevention Plan has been provided to the on-site property manager shall be provided to the Commission for its file. 5. Should any of the existing hedge located between the street and the parking lot that falls within the 100-Foot Buffer Zone be removed, the area shall be replanted with native shrubs. Paluzzi moves to issue the Conditions as discussed as part of the Commission's approval under the State Act. Seconded by Reilly. All members in favor. Motion carries 6-0. Maxner states that the waiver criteria for the 25' NDZ should be discussed at this point. Maxner reviews Section V. C. La. and asks if there are no practicable alternatives that would allow this project to go forward in full compliance with the Reguations. Cademartori states this criteria speaks to the need for an alternatives analysis to determine this, and notes that no such analysis had been provided by the applicant other than the argument that the pre-existing conditions exempts the applicant from compliance. He disagrees with this argument, as it is a completely new use of the site. Squibb agrees noting that he recalls Mr. Dick arguing that the new stormwater treatment on site serves as mitigation for this incursion, and he is confused as to why they offer this as mitigation if they don't believe they need to comply in the first place. Maxner reminds that Commission that in no way is stormwater treatment mitigation for incursion into the 25' NDZ, as meeting the stormwater standards is a requirement under the Act and the Ordinance. Lang states that the Commission asked numerous times for some sort of analysis for specific alternatives to project design and even offered ideas as to how to reconfigure the site to comply with the 25' NDZ regulations. He reminds members ofMr. Dick's statement that maximizing his client's economic benefit determined the placement of the roadway. Reilly states that she found the proposed replanting scheme lacking, as it did not accompany an analysis as to why the roadway must be located within 25 feet of the bank resource, and how this mitigation could offset the presence of the roadway immediately adjacent to the pond. Maxner asks the Commission if this portion of the project, or its natural and consequential effects, will have no adverse effects on any of the interests protected by the Ordinance. Lang states there is no way of knowing this because the Commission had no other alternative designs with which to compare the proposal, other than what currently exists on site which are highly degraded. He is not convinced that retaining pavement within the 25' NDZ will improve the function of the resource. Members agree. Maxner asks if the project will improve the natural capacity of the resource area to protect the interests of the Ordinance. Cademartori states the Commission begins with the assumption that a fully undisturbed, or in this case, a fully restored 25' NDZ will improve the function of the resource area and in his opinion this assumption has not been overcome with convincing evidence or rationale to the contrary. Squibb agrees noting that the whole point of the Regulations is to leave the resource area in better condition than how it started and he is Beverly Conservation Commission September 9, 2008 Meeting Minutes Page 11 of 11 convinced the 25' NDZ can be fully restored while still accommodating the entire project on the site. Lang asks if there is any further discussion relative to the Commission's thoughts on compliance with the Ordinance. There is none. Lang states that with this discussion, he will entertain a motion to approve the project under the Beverly Ordinance and Regulations with the same conditions as issued under the approval under the State Act. Paluzzi so moves. No one seconds. All members opposed. Motion fails 0-6 (0 in favor, 6 opposed). Maxner states that the project is denied under the Beverly Ordinance pursuant to the Commission's findings and discussion. Pole Swamp Lane. Lot Ie. DEP File #5-990 - John Soursourian Members discussed potential conditions and agree to standard conditions and the following special conditions: 1. The proposed cape cod berm (i.e. curbing) shall be maintained in good repair, as its integrity is integral to the successful function of the stormwater system. This condition shall run in perpetuity and shall survive beyond the issuance of a Certificate of Compliance. 2. Long-term maintenance of stormwater structures, including the vegetated swale and cape cod berm shall be the responsibility of property owner(s) as the structures fall within their property boundaries including such boundaries extending to the centerline of the roadway. Those structures that do not fall within property boundaries, maintenance shall be the shared responsibility of the adjacent lots lC & ID. This condition shall run in perpetuity and shall survive the issuance of a Certificate of Compliance. 3. The limit of the 25-Foot No Disturb Zone shall be demarcated with markers made ofa weather resistant material, which shall not pose a barrier to wildlife movement. They shall be placed at intervals of not more than 50 feet apart and shall be clearly visible above grade. 4. The No Disturbance Zone markers shall bear, on their upland side, by way of permanent plaque or engraving, the following language: "No Disturbance Of Any Kind Beyond This Point By Order of the Beverly Conservation Commission". Paluzzi moves to approve the Conditions as discussed. Seconded by Reilly. Motion carries 6-0. Adjournment There being no further business before the Commission this evening, Paluzzi moves to adjourn. Johnson seconds the motion. Motion carries 6-0. The meeting is adjourned at 9:20 p.m.