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2011-06-21CITY OF BEVERLY PUBLIC MEETING MINUTES Date: June 21, 2011 Board: Conservation Commission Members Present Chair David Lang, Vice Chair, Tony Paluzzi, Gregg Cademartori, Dr. Mayo Johnson, Kate Glidden, Bill Squibb Members Absent: Mary Reilly Others Present: Amy Maxner — Environmental Planner Recorder: Amy Maxner — Environmental Planner Lang calls the meeting to order at 7:00 p.m. at the Beverly City Hall, 3 rd Floor Conference Room B, Beverly, MA. He 44 -46 River Street, DEP File #5 -1048 — site work, environmental remediation, building demolition — National Grid/Mass. Electric/Boston Gas — Vote on Order of Conditions Maxner reminds the Commission that they will be making decisions under the State Wetlands Protection Act and the local Wetlands Protection Ordinance. She notes that the local Ordinance is silent on the Riverfront Area and MCP issues as to how they intermingle with the wetlands protection, and on both those issues defers to the Act. She also notes that as far as the Ordinance is concerned the main things the Commission needs to consider is the 100 -Foot Buffer Zone and 25- Foot No Disturbance (25' NDZ), she asks that the Commission correct her is she has mischaracterized this. Lang questions whether the infringement into the 25' NDZ has been appropriately compensated for and whether there were alternatives presented or whether there are no other better alternatives. He notes that the Commission often requires mitigation and notes that certain amount mitigation has been provided but asks if is it adequate. Johnson states that he thinks it maybe adequate. Squibb states that there should be some sort of public access required along the water. Maxner reads the letter from the Harbor Management Authority regarding Chapter 91 issues to refresh everyone's memory. She states that she does not know if the Commission has authority to rule under Chapter 91 regulations. Johnson suggests that waterfront access could be a special condition as part of the Order. Lang states that the Commission can find that it supports such a requirement but doubts that the Commission can dictate Chapter 91 rules. Squibb notes that access is a benefit to National Grid employees as well as the public and notes that the proposal is to work farther out into the river as opposed to staying landward of current conditions. Cademartori states there are two separate issues, noting that public access process should be addressed under the Chapter 91 regulations. He explains that the 25' NDZ and the Riverfront Area alternatives analysis are related in the fact that alternatives analysis and mitigation are required for Beverly Conservation Commission June 21, 2011 Special Meeting Minutes Page 2 of 7 work within both of these zones. He notes that the questions as to whether the mitigation is adequate, he recalls that project parameters were given that were confined to the site and nothing could be examined beyond the site. He notes that at the last hearing the applicant provided a mitigation alternative on the neighboring site. He notes the question is whether the Commission will rely on the Commission's peer review consultant who provided an assessment of the offered Riverfront restoration and whether the alternatives analysis was adequate. He notes that the peer reviewer raised the question as to whether this area of restoration is truly degraded and whether what was offered was truly adequate and viable. He questions the 3,000 square feet of mitigation on the neighboring property, which consists of a few more arborvitae, is in keeping with the intention of a true Riverfront restoration. He recalls, as a contrast, the project on Elliott Street (Bass River Plaza, 240 Elliott Street) where the mitigation plan consisted of mature trees, diverse species of plantings, public access and benches. He goes on to refer to the Ordinance and the waiver criteria, noting that the first criteria is met because work must happen within the 25' NDZ, but the questions if appropriate compensation has been offered. He feels that a full analysis of the alternatives was not fully explored, and does on believe that what was offered does not achieve a longer view of managing activities on site. Lang asks how would the activity in the 25' NDZ be addressed considering that waste will be left in this zone. Cademartori recalls the peer reviewer's suggestions of partial removal of waste to create an opportunity for a restoration area that could also reestablish a true bank, noting that containment could happen at the 50' within the buffer zone. He notes that there is no loss of activity on site, it is essentially capping and paving and using of area as a parking field. He notes that the peer reviewer suggested that the applicant did not gone far enough in looking at the alternatives and the Commission needs to rule on whether it thinks this is the appropriate way to compensate. He notes that Lang can give more guidance on the MCP mandates. Lang states he does not wish to judge project from a 21E point of view, but does think there was more opportunity to look at alternatives from the Ordinance perspective and additional removal of hazardous waste from within the 25' NDZ. Cademartori states the peer reviewers' concerns about the depth of the restoration and stormwater retention, as to whether it would function as designed. Noting that they are creating a parking area that needs to be treated and the mitigation area is also serving to do that. Squibb notes that the Commission has required mitigation from homeowners that far exceeds what National Grid is providing that needs to be reconciled. Maxner reminds the Commission that the applicant is also coming under a Limited Project status. She reads from the State Regulations, 310 CMR 10.53(3). She notes that, as Cademartori recognized, that something must be done on the site, but in terms of addressing RA restoration, the question is what they are proposing comparable to the disturbance and scope of the project and how are they managing the site for the long term. Johnson asks if they Commission could insist that the parking lot be moved even further back to increase the restoration area and include a picnic and open space area. Cademartori notes that buildings will be removed and new parking field will be expanded toward the river and is a new use. He notes his disagreement with the applicant's argument that they are confined to what is proposed and cannot do any more, but he believes that this is a significant project that will be costly and this is the opportunity to fully address riverfront area that has been abused, without expecting to cure all past ills on the site. He states that the Beverly Conservation Commission June 21, 2011 Special Meeting Minutes Page 3 of 7 Commission needs to make the determination as to whether the applicant has satisfactorily demonstrated that the proposed mitigation is sufficient. Squibb reiterates his position that a walking trail is a feasible requirement. Lang notes that this is being done as a Class C RAO, a temporary solution, which requires them to revisit this every 5 years but that DEP has been pushing for more permanent solutions for these types of sites and that might be an eventuality. Lang asks if the members should start on developing a set of conditions to vote up or down and go from there. Discussion ensues as to the separate decisions made under the Act and the Ordinance. Maxner reminds the Commission that the Grid's consultant did not fully explore the peer reviewer's suggestions of intermediate levels of waste removal within the first 100 feet of the buffer zone. Lang notes that removal and reconsolidation on site would not be as involved as trucking it off site. Maxner notes that the previous planting plan under the old Order has failed and the new restoration is only 18 inches deep. Lang notes that indeed the Commission has received and required more generous restoration plans on other projects as Squibb noted. Maxner suggests that a special condition that requires Grid to identify another site in Beverly that needs restoration in the Commission's jurisdiction, noting that the peer reviewer suggested that off -site mitigation is an option. She also notes that another option could involve requiring a trail easement on Grid's East Beverly Substation property, noting that the Beverly Open Space Committee had initiated that conversation with Grid on this issue that seemed to be promising, but it hasn't gotten advanced, which could satisfy public access issue. Squibb asks what the cost estimate of the proposed alternatives. Maxner reads off the cost estimates, the current proposal costing $5.2 million and the alternative costing $11.8 million. Lang clarifies that the $11.8 cost involves full removal of waste within the entire 100 -foot buffer Zone. Maxner goes on to suggest the possibility of requiring mitigation money. Cademartori states that he revisits the activity within the 25' NDZ, and the fact that 60 parking spots are being created where the buildings are coming down which suggests an intensified use on this part of the property and he is inclined to look at the opportunity at the neighboring site. He notes that the peer review consultant suggested that the alternatives for activity did not go far enough and the mitigation was not satisfactory and giving the applicant another shot at providing more mitigation. Squibb asks if the inclusion of a walking path could be part of that. Cademartori it is a possibility and could be allowed for within the 25' NDZ. Paluzzi notes that a path was requested at the East Beverly Substation but it was never fully offered, possibly for liability reasons. Discussion ensues as to possibilities for walking pathway. Lang asks about the possibility of requiring a full removal of waste within the 25' NDZ, reconsolidating that waste on site and a full restoration of this zone. Maxner asks a clarification as to what that would look like: the water's edge, the new bank, the 25' NDZ and then a sheet pile wall? Lang states that a sheet pile will need to be installed during work but may be removed once the work is complete. Cademartori notes that the first sheet pile wall at the water might not need to be as high. Maxner reiterates her idea of mitigation money to be donated to the Open Space Beverly Conservation Commission June 21, 2011 Special Meeting Minutes Page 4 of 7 Committee to carry out there mission and asks the Commission to consider this idea. Lang and Cademartori agree that this could be offered as an option but maybe down the line as an alternative. Discussion ensues as to how to condition the project under the Act and Ordinance. Cademartori notes that the peer reviewer provided suggestions for the Commission to consider helping determine if the project analysis and mitigation were fully explored and satisfactory. He notes that the Commission will need to decide what can be accomplished through a complete denial as opposed to an approval with some special conditions. Noting that either way it will be appealed. Johnson notes that he feels there are enough reasons to deny it purely under the local Ordinance. Maxner suspects that Grid will not budge from the project as proposed and thinks that as a strategy under the Act it might make sense to issue some special conditions that could be retained through the appeal process. Discussion ensues as to how each decision will be reviewed on the DEP level and the Superior Court level. Lang notes that the Commission's review under the Ordinance and work in the 25' NDZ was pursued in requesting additional alternatives, which the applicant dismissed outright, and he is unsure if the responses from Grid qualify as true analysis of alternatives. Johnson asks to start to make a list of special conditions under the Ordinance. Discussion ensues as to options for how removal of hazardous waste from and restoration of the 25' NDZ and Lang clarifies that two sets of sheet pile wall would need to be installed to allow removal to be done and the water -side sheet pile wall would be removed and resoration within the 25' NDZ could then proceed. Johnson notes that could indeed establish a naturalized riverbank. Maxner asks if full restoration of the 25' NDZ would require reconfiguration of the bioretention area. Lang and Cademartori note that there seems to be enough room on the site to put the retention area elsewhere instead of cramming it into the 25' NDZ. The members review the site plan. Lang suggests Standard Conditions. Discussion ensues as to planting the 25' NDZ. Lang recommends complete revmoal of hazardous waste within the 25' NDZ and full planting restoration with all layers of vegetation (trees, shrubs and herbaceous), noting that the excavated waste could be shipped off site or reconsolidated somewhere no site. Lang states that removal of the outside sheet pile is ideal but it is a construction issue that the Commission shouldn't dictate. Discussion ensues as to other possible special conditions, with Lang noting that the conditions should be confined to on -site mitigation not off -site. Squibb asks about the building on the Mass Electric if it is a parking garage. Maxner notes that work was done under a previous Order and the Commission required replanting of the area between the river's edge and the back of that building but that also failed to survive. Cademartori suggests that the applicant be required to restore the entire length of the 25' NDZ on both sites especially considering that the stormwater management proposal did not fully meet the standards and how that could be compensated for with full restoration on the Mass Electric site as well. He notes that they are maintaining full use of the site and the Commission is restricted to the areas of where contamination is being addressed and even though some areas of the site is outside Beverly Conservation Commission June 21, 2011 Special Meeting Minutes Page 5 of 7 jurisdiction, all of the stormwater from the site flows into the Commission's jurisdiction. Glidden asks a clarifying question as to what types of vehicles will be utilizing the parking areas. Cademartori notes that it is fleet parking, equipment and materials storage as well as employee parking. Lang clarifies that full restoration of the 25' NDZ on both sites excluding existing structures. Squibb notes that access easement should be allowed at the East Beverly Substation as a condition. Glidden asks a clarification as to where that substation is. Maxner explains the background of the trail easement and offers her opinion that it is not an unreasonable request since Grid was considering it in the beginning when talking to the Open Space Committee. Johnson recommends including that as a special condition. Lang asks if there is a motion on the conditions discussed. Cademartori asks if a findings section will be included in this decision and notes that all of the peer review documents should be referenced in that language. Maxner confirms there will be a findings section. He notes that in terms of language for the findings, Section V. C. 1. a) — c), noting that the applicant satisfies a), but not b) or c) without complying with the conditions and the Commission will be granting a waiver for work in the 25' NDZ as long as the special conditions are complied with. Maxner reviews the Special Conditions as follows: 1. The approval under this Order of Conditions is contingent upon the removal of the entire depth of hazardous waste from within the 25 -Foot No Disturbance Zone on the Boston Gas parcel (Map 4 Lot 58). Excavated waste from this zone may be reconsolidated elsewhere on site and incorporated beneath the cap subject to approval through MCP. 2. The approval under this Order of Conditions is contingent upon restoration of the 25 -Foot No Disturbance Zone on the Boston Gas parcel (Map 4 Lot 58) with appropriate replacement soils and planted with a full complement of native trees, shrubs and herbaceous plants to establish naturalized riverfront area and stabilized riverbank. 3. Full restoration of the 25 -Foot No Disturbance Zone (aside from where buildings intrude into the 25 -Foot No Disturbance Zone) extending the entire length into the Massachusetts Electric parcel (Map 4 Lot 57) and shall be fully restored with appropriate replacement soils and planted with a full complement of native trees, shrubs and herbaceous plants to establish naturalized riverfront area and stabilized riverbank. 4. Special Condition #'s 2 and 3 shall allow for the establishment of a walking path if so required by DEP Chapter 91 licensing. 5. Prior to any work going forward the applicant shall submit a revised set of plans showing how it will comply with this Order and its Special Conditions. 6. The applicant shall make a donation of a permanent trail easement in favor of the City of Beverly on the applicant's East Beverly Substation property, 89 Boyles Street, Map 45 Lot 44, Beverly, MA to allow for trail access off of Boyles Street connecting to City of Beverly Conservation Land (Map 34 Lot 3) located off Tall Tree Drive. Beverly Conservation Commission June 21, 2011 Special Meeting Minutes Page 6 of 7 Lang asks if there is a motion. Paluzzi moves to approve the Standard and Special Conditions as discussed (as issued under the Beverly Wetlands Protection Ordinance). Johnson seconds the motion. The motion carries 6 -0, all in favor, none opposed. Maxner asks how the Commission would like to discuss its decision under the Wetlands Protection Act. Lang suggests that the Commission make its findings and vote the project up or down without making conditions, noting that DEP will review it and make its decision either way. Maxner reminds the Commission that it has discretion under the Limited Project and notes that it's on the Commission's shoulders to articulate why it feels the applicant did not meet that provision. She reiterates the provision that states the Commission must weigh the significance of the resources on site and the scope of the proposed project and resulting disturbance. She notes that the other layer of regulation is the Riverfront Area alternatives analysis. Cademartori notes that the peer reviewer contended if it is not a Limited Project the required mitigation in Riverfront is 1:1, but still noted that the proposed mitigation was not adequate because the alternatives analysis was not adequate. Lang notes that the analysis was undertaken 11 years ago and the applicant failed to explore viable alternatives or provide significant mitigation. Lang asks if the Commission would issue Standard Conditions and discussion ensues as to whether off -site mitigation should be required. Lang notes that they are using the entire 100 -foot buffer zone for waste storage. Cademartori states that does not make sense to condition the project unless it is redesigned and if the Commission does not support the current plan. Noting that the peer reviewer provided at least three other alternatives that were either not addressed or only briefly considered or fully analyzed by the applicant. As well as other suggestions to mitigate were offered during the hearings and not fully explored. He reiterates that alternatives were offered by the peer review consultant that were not seriously considered by the applicant, and the mitigation currently offered is not adequate an may not meet the definition of degraded Riverfront Area. Lang asks for a motion to approve the project under the State Wetlands Protection Act with Standard Conditions. Paluzzi makes the motion. Johnson seconds the motion. The motion fails 0 -6 (none in favor all opposed). Lang asks if Maxner will cite the interests of the Act in the decision. Maxner confirms. Cademartori also recommends that the minutes and peer review testimony and written reports will need to be referred to in writing the findings. Lang asks for addressing Old and New Business on the agenda. Maxner notes that owners of 8 Elm Top Lane has requested to remove two trees on the property and shows a plan that depicts the trees. She notes that a Black Locust, leaning over house, at the top of Coastal Bank within the 25' NDZ, she explains owner wishes to remove this tree. Beverly Conservation Commission June 21, 2011 Special Meeting Minutes Page 7 of 7 The Commission voted to allow removing the limb of the Black Locust that is overhanging the house and removal of the Bittersweet should be removed, but full removal of this tree will require a permit. She explains there is a double -trunk Maple Tree leaning over pool and notes that leaves and debris from this tree is starting to stain the pool. This tree is located in the outer limits of the 100' Buffer Zone to Coastal Bank and the owner wishes to remove this tree, the Commission voted to allow removal of this tree. Maxner notes that she has no more business for the Commission. Paluzzi motions to adjourn. Johnson seconds the motion. The motion carries 6 -0. The meeting adjourns at 8:45 p.m.