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2002-09-10 CITY OF BEVERLY Public Meeting Minutes BOARD: Conservation Commission SUBCOMMITTEE: DATE: September 10, 2002 BOARD MEMBERS PRESENT: Chairman David Lang, Anthony Paluzzi, Dr. Mayo Johnson, Linda Goodenough, Richard Benevento BOARD MEMBERS ABSENT: Jon Mazuy OTHERS PRESENT: Debra Hurlburt, Planning Director RECORDER: Tape Chairman Lang calls the meeting to order at 7:00 p.m. Request for Determination of Applicability 57 Sonning Road – replacement of above ground swimming pool – Tabbut The applicant is requesting to replace an above ground swimming pool. At the very rear of the property there is a wetland. There will be no excavation required. Lang asks if there are questions from members of the public. There are none. Paluzzi moves to close the hearing and issue a Negative #3 Determination of Applicability with the condition that the pool water cannot be pumped out towards the wetlands, seconded by Benevento. All members are in favor. Motion carries. Paluzzi moves to recess for public hearing, seconded by Johnson. All members in favor. Motion carries. Abbreviated Notice of Resource Area Delineation Cont: 2 Boyles Street – Resource Area Delineation – Whitehall Hill Realty Trust Bob Griffin, Griffin Engineering appears on behalf of the applicant, Whitehall Hill Realty Trust. He states there was a site walk over the weekend and he asks if members of the board and/or members of the public have questions he can answer. Lang asks if members of the public have any comments. Joanne Avallon reads a letter from Attorney Thomas Harrington. Conservation Commission Meeting Minutes September 10, 2002 Page 2 Avallon asks a clarifying question regarding the definition of a buffer zone to a resource area. Benevento responds that the city’s ordinance says that the buffer zone is considered a resource area. He states the performance standards for the buffer zone in Beverly are similar to the performance standards for a resource area. However, we are not saying that the regular buffer zone, under the state law, they have an additional 100 feet beyond that. Avallon states if the replication area for the BVW area and the buffer zone extends 100 feet from that resource area, wouldn’t that extend it up? Hurlburt responds that the resource area as identified the BVW is the resource area alone. The dotted line extending around the red on the plan is the buffer zone. That is protected and that would be the limit. Lang asks if there are other questions from members of the public. A resident expresses concern regarding the impact on vernal pools. Griffin responds that vernal pools were discussed a little bit at the last meeting. He states the applicant is asking for approval of delineation. He states vernal pools will be addressed at another meeting. Benevento states that if the applicant does not get this filed by the spring, the Commission will not be able to act upon a filing after the spring because there is potential for a vernal pool on the site. It is incumbent upon the applicant to do some due diligence and get a filing by the spring or file some type of amendment to this delineation. He stresses the need to identify this in the spring and he would be reluctant to move forward with a filing without knowing one way or another if there are vernal pools there or not. Hurlburt states that the only problem that she would have is the form that the Commission fills out. It is either accurate, modified, or inaccurate. She states her fear is if the Commission says accurate, then that closes the door for the applicant to come in the spring with a Notice of Intent. Benevento states, that it is his opinion that “accurate” is based on the information that has been provided by the consultant, neighborhood consultant and the Commission’s consultant. The Commission has to act upon what is there today not “what ifs.” Benevento states that as far as he is concerned, his approval or voting on this particular filing is based on what is there right now. Hurlburt states the applicant has three years to write the Notice of Intent and she would be very concerned about that. She states unless there was a clear ruling from DEP, she would be concerned. The Commission’s new bylaw protects uncertified vernal pools but the Commission does not know what it is. She states she spoke with Mr. DeRosa and he said that there is pretty good evidence of the appropriate species on the site in the spring. He thought that it was something that the Commission should consider. Hurlburt states that applicants could discharge to an area that is not a vernal pool. You may not be able to discharge to a vernal pool. Benevento asks if it is within the Commission’s jurisdiction to prohibit any discharge into that Conservation Commission Meeting Minutes September 10, 2002 Page 3 resource area. He states the burden of proof is on the applicant to prove that there is no vernal pool. Lang asks for Hurlburt’s suggestions. She responds that she does not see a problem with conditioning it and she states that she is even more comfortable speaking with DEP to ask them the questions, unless the applicant wants the Commission to vote on it. Griffin states that the applicant will have to deal with this regardless of whether there is a conditional approval or not. He states he is trying to avoid a conditional approval that limits the data collection next spring. Hurlburt states that under the accurate “check off” there is one for “BVW” and “Other,” which is what you would identify as certified vernal pools. She states that it would be the burden of the applicant to determine if there is a certified vernal pool or not. Joanne Avallon asks if this would preclude the consultant from collecting data in the spring on the certified vernal pool? Lang responds that is a property issue and the Commission would encourage cooperation as there has been in the past. Hurlburt states the purpose of the meeting is an ANRAD only, which is to identify the resource areas. The Commission is not discussing flooding, traffic, or anything other than resource areas at this time. The board has letters, which will be held for the Notice of Intent stage so those issues can be talked about. The purpose of this meeting is dealing with the delineation. Benevento moves to close the hearing, seconded by Paluzzi. All members in favor. Motion carries. Notice of Intent 55 Ober Street – repair of seawall, construction of walkway – City of Beverly The City Engineer, Frank Killilea states that the City of Beverly is proposing to repair a seawall that was destroyed in March of 2001. He introduces Kimberly Jarvis, a landscape architect, to discuss the details. Jarvis states the project is at Lynch Park. She provides photos of the current condition of the wall and provides an overview of the project. Lang asks if there are any questions from members of the Commission. Benevento states the seawall repair is an important part of maintaining the integrity of Lynch Park. He asks why there is a need for the concrete slab behind the wall. Jarvis responds that it is an integral part of the wall. Conservation Commission Meeting Minutes September 10, 2002 Page 4 Killilea states that Lynch Park wanted to wait until after Labor Day to start construction and the work needs to be finished by Memorial Day. He would like to get the project done in the fall. Lang asks if there are questions from members of the public. Benevento moves to close the hearing, seconded by Paluzzi. All members in favor. Motion carries. 44 River Street – construction of new 115kV substation – Mass Electric Company Paul Richards states the project is to construct a new 115kV substation. The reason for the project is that the area of Beverly has grown and there is a need for supply. The resource area is the riverfront area but the vast majority of the site is Chapter 91 land. There is a 100-foot buffer, which is associated with a coastal bank and there is the 100-year flood plain. Lang asks the size of the area which will be constructed. Richards responds that the substation will be approximately 155 x 200 feet. Lang asks how long the construction will take place. Richards responds approximately 9 months. Lang asks what other permits are required. Richards responds that the 30-day comment time has lapsed from Chapter 91. A building permit is required from the building inspector. Mardee Goldberg of 25 River Street asks what the height of the tallest structure will be. Richards responds that the height of the tallest pole will be 90 feet, the same height of the exiting pole on site. Mardee Goldberg asks a clarifying question regarding hazardous waste on the site. Lang responds that the Commission is here because of the Wetlands Protection Act and questions regarding building heights, etc. are out of the Commission’s jurisdiction. Richards states that the area associated with the gas plant has nothing to do with this portion of the property. Lang asks about PCB’s. Richards responds that there are very low levels of PCB’s on the property. Jane Reed asks if the applicant intends to provide public access to the walkway. Richards responds that it is not their intention. Benevento moves to close, seconded by Paluzzi. All members in favor. Motion carries. Order of Conditions Conservation Commission Meeting Minutes September 10, 2002 Page 5 Cabot St., L.P. Henderson Road – consolidation and stabilization of fly ash deposits – New England Power Company The members review a draft Order of Conditions. Standard Commission conditions as enumerated 1 through 40 and Special Conditions: 41. As used herein, “this property” refers to the Project Site, a group of six (6) parcels, none of which is owned or otherwise controlled by the applicant, New England Power. The applicant shall acquire the individual landowners’ permission to conduct the proposed work subject to individual access agreements. 42. At least one month prior to the start of construction, the Applicant shall submit for approval a Project Sedimentation Control and Construction Impact Monitoring Plan. At a minimum, this plan shall address the following: a. Installation procedures, maintenance requirements and inspection and sampling frequency for the turbidity curtain in Wenham Lake: b. Maintenance requirements and inspection frequency for surface and slope erosion control system during and after construction; c. Surface water and groundwater quality monitoring and reporting including semi- annual MCP water quality parameters and more frequent indicator parameters in existing and relocated Airport Brook and Wenham Lake; d. Visual and analytical air borne dust monitoring procedures and reporting at the perimeter of each active work area; e. Corrective actions to be undertaken based on the results of the monitoring data. 43. Prior to the start of construction, the applicant shall submit a Project Monitoring and Implementation Plan that will include methods to establish criteria for evaluating success of the restoration effort, including but not necessarily limited to: a. Coverage of at least 75% of the surface of the restoration area with indigenous wetland plant species within two growing seasons; b. Establishment or enhancement of wetland hydrology throughout the portion of the work area designed to function as wetland; and c. Development or enhancement of hydric soil morphology throughout the work area. 44. The applicant shall assume full responsibility and liability for the proposed work conducted on public or private lands relative to the performance standards of the Act and shall cease upon the issuance of a certificate of compliance. 45. All submittals issued to the City of Beverly Conservation Commission shall be issued to the Wenham Conservation Commission. Conservation Commission Meeting Minutes September 10, 2002 Page 6 46. Treatment and return of water to Wenham Lake must be approved or permitted by MADEP or appropriate federal Agency such as USEPA> Benevento moves to accept the Order of Conditions as written and amended, seconded by Paluzzi. All members in favor. Motion carries. 44 River Street – construction of new 115kV substation – Mass Electric Company Paluzzi moves to issue the following conditions: 1.) Standard conditions. 2.) Any oil stained soil shall be tested for pcb’s. Seconded by Benevento. All members in favor. Motion carries. 55 Ober Street – repair of seawall, construction of walkway – City of Beverly Benevento moves to issue the following conditions: 1.) Standard conditions. Seconded by Paluzzi. All members in favor. Motion carries. 2 Boyles Street - Resource Area Delineation – Whitehall Hill Realty Trust Benevento moves that the Resource Area Delineation for Whitehall Hill Realty Trust is accurate, seconded by Paluzzi. All members in favor. Motion carries. Certificate of Compliance 28 Middlebury Lane – DEP File #184 – Ira and Mary Parkman Hurlburt states the Commission has received a letter from Hayes Engineering requesting for a partial Certificate of Compliance for the overall subdivision. She recommends approving the request. Paluzzi states he visited the site and everything looked ok. Paluzzi moves to issue a Certificate of Compliance for 28 Middlebury Lane, seconded by Goodenough. All members in favor. Motion carries. 425 Hale Street Hurlburt states the applicant is looking for a waiver of the condition requiring an as-built plan and Conservation Commission Meeting Minutes September 10, 2002 Page 7 a letter from a P.E. None of the topography has changed and the contractor wrote a letter indicating that he did construct the pool as per plan and conditions. Hurlburt recommends that the Certificate of Compliance be issued with those waivers. Benevento moves that the Certificate of Compliance for 425 Hale Street be issued including the waiver from the specific condition 41(2) and (3), seconded by Paluzzi. All members in favor. Motion carries. 4 Cavendish Square Hurlburt states the Commission granted a 45-day extension and required an as-built and letter from a P.E. for this work because it is a replication project. There has been no correspondence from the applicant. Hurlburt will contact the applicant. 28 Hill Street Hurlburt states the work is associated with a public sewer connection project, water connection and paving. Paluzzi moves to issue a Certificate of Compliance for 28 Hill Street, seconded by Benevento. All members in favor. Motion carries. 62 Middlebury Lane The Commission received a letter and as-built plans for 62 Middlebury Lane. The letter states that all work conforms except 150 square feet of wetlands were filled when building riprap wall. Lang states he is unsure how the house got approved and built so close to the wetland. Hurlburt states 150 square feet of BVW was filled that was not approved by the Commission. Benevento recommends that the applicant clean up the resource area and then the Commission can issue a Certificate of Compliance pending that the work be completed in 30 days. At which time, if the work is complete, the Conservation Agent will inspect it and certify that it has been done. Benevento informs the applicant that theoretically the Commission could issue an Enforcement Order because the wetlands were filled. He states he is willing to find a compromise that the applicant will, in good faith, recognize that the wetland has been filled and he will restore a piece of area that the Commission believes should not become wetland. He states he does not care whom the applicant gets to do it but he is offering to issue the Certificate pending that the work be complete within 30 days. If it the work is not done within 30 days, then the applicant would have to come back before the Commission and the Commission will have to rethink the offer. Conservation Commission Meeting Minutes September 10, 2002 Page 8 Benevento moves to issue a Certificate of Compliance pending that the debris at the end of the drain line is removed by the applicant and that the wetland line be amended on the plan by Meridian Engineering to show that an additional 150 feet of wetlands have been compensated and replicated within 30 days, seconded by Paluzzi. All members in favor. Motion carries. Discussion with David Gardner of Open Space and Recreation Committee David Gardner introduces Bruce Doig (Chairman of the Parks Commission) and James McNeil (member of the Open Space Committee). He states he has been a member of the Parks Commission for several years and there is a terrible problem finding playing fields. He is proposing the Vitale site on Henderson Road for the use of playing fields. The Parks Commission has discussed this with the Mayor and he was receptive, however, he expressed the need to have the Conservation Commission’s opinion. Gardner asks the Conservation Commission to formally support the Henderson Road location for the use of playing fields. Lang states there was a hearing on the Vitale site several years ago and it was a hot and heavy meeting. Some people were supportive of open space and others were not supportive of a hockey rink on the site. Gardner states a hockey rink is not what is being proposed. The proposal is for a “green slot”. It would be nice to have a concession stand, but that is not essential. Goodenough states she would have an issue putting an ice rink at the location. Lang states some people did not want to use the dump because of the toxic gas. The legal concern was that they hadn’t done the studies to determine how good or bad the site is. Benevento states that he believes that at this point in the process it is a little difficult to endorse any plan until the Commission knows what is going on. Gardner responds that he is not asking the Commission to endorse a plan, but rather to support active recreation on the site. Benevento states he has concern about putting “stuff” back there and burying it and it is hard to endorse anything without knowing the active impact of what is going on. The impact of what they are doing may not be conducive to playing fields or walking paths. Gardner states the reason he is before the Commission is because the Mayor has requested the Conservation Commission’s blessing for the use of the parcel for playing fields. He recommends that perhaps the Commission can come up with some wording that would satisfy the Mayor and keep this moving forward. If it all falls apart because of grading issues, or safety, so be it. Gardner states he expects there will be some expense involved in grading the parcel for use as a playing field. Conservation Commission Meeting Minutes September 10, 2002 Page 9 Lang recommends that the Commission hold a public hearing. Dr. Johnson agrees and states he is willing to have an open mind but he is not willing to support a resolution. Gardner states he would like to go ahead with a public hearing quickly. Benevento states the Parks and Recreation Commission is asking for the Commission’s support of fields and facilities and he believes a public hearing should be conducted with public input relative to what the general public would like to see there to help the Commission make a decision on whether to support the recommendation or not. Gardner states the reason why he is here is because the Conservation Commission owns the site and in order for the Mayor and the city to go ahead, the Commission’s approval is needed. Pam Kampersal recommends that the Parks and Recreation Commission work with some members of the public to find solutions to make it safer. The members agree to schedule a public hearing on October 1, 2002 at 7:00 p.m. to discuss this further. Benevento recommends that the Parks and Recreation Commission prepare a plan for members of the public to review. Other Benevento states he believes the Commission needs to amend the Wetlands Ordinance relative to the buffer zone being called a resource area. People are interpreting that differently and the Commission needs to look at literally identifying that in an ordinance. At the next meeting the Commission should be prepared to discuss different language – an amendment to the ordinance. Benevento states he believes the Commission to accentuate the fact that there is a buffer zone that is under the Commission’s jurisdiction. Algonquin Bond Hurlburt states that the Commission has received the Algonquin $2 million bond. Approval of Minutes Benevento moves to approve the June 4, 2002 meeting minutes as amended, seconded by Paluzzi. Lang and Johnson abstain. Motion carries (3-0-2). Paluzzi moves to approve the July 30, 2002 meeting minutes as amended, seconded by Conservation Commission Meeting Minutes September 10, 2002 Page 10 Benevento. Motion carries. The meeting is adjourned.