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2003-04-01 CITY OF BEVERLY Public Meeting Minutes BOARD: Conservation Commission SUBCOMMITTEE: DATE: April 1, 2003 BOARD MEMBERS PRESENT: Chairman David Lang, Anthony Paluzzi, Dr. Mayo Johnson, Linda Goodenough, Eileen Duff, William Squibb (7:10 p.m.) BOARD MEMBERS ABSENT: OTHERS PRESENT: Debra Hurlburt, Planning Director and Amy Maxner, Conservation Agent RECORDER: Jeannine Dion (by tape) Lang calls the meeting to order at 7:00 p.m. Request for Determination of Applicability New: 5 Dondi Road – installation of above ground pool – Martenson Mr. Martenson, the applicant, presents the project, and states that he is proposing to erect a 4 ½ foot high, 24 foot round above-ground pool in the buffer zone to an isolated vegetated wetland. Maxner states that the back of the house is approximately 50-55 feet from the edge of wetland, and the pool will be approximately 25 feet from the wetland. Martenson states that there will be a 4-foot high fence surrounding the latter. Martenson explains that the top layer of sod will be scraped off and washed gravel/sand with patio blocks will be placed in order to level the area where the pool will sit. Lang asks what will be done with the sod. Martenson explains that it will be used in his garden to bolster the existing soil, and if there is any left over his father-in-law will take the rest and use it for his garden as well. Paluzzi motions to issue a Negative Determination #3, seconded by Goodenough. All members are in favor. Motion carries. Paluzzi moves to recess for a public hearing, seconded by Goodenough. All members are in favor. Motion carries 5-0. Conservation Commission Meeting Minutes April 1, 2003 Page 2 Abbreviated Notice of Resource Area Delineation Cont: off L.P. Henderson Road, off Sam Fonzo Drive – Resource Area Delineation - Beverly Municipal Airport Jim Fougere of Smart Associates presents on behalf of the Beverly Airport. He states that the ANRAD was submitted in January for the confirmation of BVW and Isolated Land Subject to Flooding delineations, and it was continued due to weather conditions and snow cover. Lang asks if there are questions from members of the public. Renee Mary, 274 Hale Street expresses concern regarding the wetlands in the area and that the entire area of the Airport is a wetland system and urges the Commission to go back to the site and conduct another site visit. Lang responds that he feels comfortable with the delineation, and if the Conservation Commission issues approval this evening, the applicant would have to come back to the Conservation Commission before there is any construction on the property. Mary expresses concern about the proximity of the aquifer for the drinking water supply to this area. Jim Fougere responds that there will be discussions regarding this issue in the Environmental Assessment, which will be required. (Squibb arrives at 7:10 p.m.) Lang asks if there are any other questions from the public. There are none. Lang asks if there are any other questions from the members. There are none. Dr. Johnson motions to approve the resource area delineation as accurate, seconded by Paluzzi. All members are in favor. Motion carries 5-1 (Squibb abstains). Notice of Intent Cont: 5 Elm Top Lane – razing existing house and construction of single family home – Elm Top Realty Trust Robert Hubbard, applicant, states that the Commission has conducted several site visits, and after the last site visit, there was discussion regarding secondary delineations. He states he has gone back and used some of the benchmarks that existed on site prior to the construction of the existing house. Hubbard states that the delineation drops dramatically at the Schwartz property (4 to 1). He went on to explain that during the late 1800’s when the house was built, common practice was to use the excavated material from the basement and place it to the rear of the house. He states that he is confident that this fill material is not a natural feature and therefore cannot be used in the delineation. Conservation Commission Meeting Minutes April 1, 2003 Page 3 Bob Griffin from Griffin Engineering states the ancient path shows up on 1950-1960 deed documents. He also explains that further up the hill, the elevation 38 contour runs across the parcel and ties into a retaining wall. He states there were some test pits dug just beyond the 100-foot buffer zone last week and he found fill at the top of the slope. Griffin reviews some minor plan changes: · Reduced the amount of excavation and grading that was previously proposed. · Less material will be removed from the site. · On the ocean side of the house, the finish grade is raised by about one foot. · The house location has been shifted very slightly further away from the Coastal Bank. · Retaining wall has been moved slightly up hill. Joe Orzel from the Gulf of Maine provides a brief overview of the proposed soil stabilization and planting plan. Paluzzi asks why the Coastal Bank is not delineated at elevation 43 as discussed at the site visit. Griffin responds that it was his understanding that the top of the Coastal Bank was to be tied to the existing railroad tie retaining wall the follows the existing terrain at elevation 39. Lang asks if the stakes were at the location of the wall. Griffin responds that they are actually one or two feet down slope from it. Lang states that he was taken aback by the position of the new delineation, and was of the understanding that the top of Coastal Bank was going to be much further up the hill. He stated that the applicant has essentially taken 20 feet off of the Coastal Bank. Griffin responds that he feels the Coastal Bank was delineated properly the first time and this new delineation is very reasonable. Lang states that he was personally surprised at the location. Hubbard states that the delineation clearly ties into the existing retaining wall and reiterates how he came to that conclusion. Lang states that there was discussion regarding the area of activity on the adjacent property. Hubbard responds that he looked at the Harris property as well as the stonewall that divides the two properties. He states that the top of the stonewall is 4 feet below the area that has been filled on his property, and that it is very clear that fill had been placed there. Lang states the Conservation Commission discussed that the Coastal Bank would be at delineated at elevation 44. Dr. Johnson states that he is upset that so much work has been done in the resource area and the buffer zone before the plans were approved. It shows little regard for the Wetlands Protection Act Conservation Commission Meeting Minutes April 1, 2003 Page 4 and therefore he has little confidence that the rest of the project will be handled appropriately. Hubbard responds that Dr. Johnson is correct that work was done on the property. He states he has clearly made some mistakes and there were a chain of events that occurred on the property that were out of his control. He states he will make a better effort to conduct future activities in a more appropriate manner. Lang states a Cease and Desist Order was issued and it looks like test pits were done within 100 feet of the Coastal Bank. Griffin responds that he thought they were outside the 100-foot buffer. They tested for a couple of hours and refilled to their original condition. Lang states the Conservation Commission never agreed on a 38 feet elevation for the top of Coastal Bank, but that elevation 44 was the understanding. Hubbard states that his understanding was that there was disagreement regarding the Coastal Bank but he does not think he is in violation of the spirit of the law. He states that they were just test pits and the engineer was there to monitor the work. Lang asks if there are questions from the public. Jane Reed, Beverly Coastal Access Group expresses concern regarding the ancient way and hopes it will remain in existence and be usable. Hubbard responds that he does not intend to do anything with the terrain in that area. An abutter, Leonard Levy, 21 Ober Street, compliments the Commission and expresses concern that the applicant is continually in violation of the rules. Joan Murphy, 36 Longmeadow Road, states the Coastal Bank should be defined by what is there now. Richard Albano from Hancock Consultants expresses concern regarding the lack of details provided by the applicant. He states the following concerns: § Even though there is debate on the exact location of the top of Coastal Bank, the plan still shows work proposed behind the retaining wall, which most likely is within resource area; § He suggested that a structural engineer look at the retaining wall to make sure it is designed properly; § There has been no discussion of the proposed walkway and stairs leading down the Bank. He suggests that the Commission request specifications for these structures; § The replanting plan includes very appropriate plant types, but the Commission should closely examine provisions for nesting, migratory and reproductive habitat lost due to the clear cutting; Conservation Commission Meeting Minutes April 1, 2003 Page 5 § There are no demolition details provided for the razing of the existing house; § He encourages the Commission to closely examine the grading details, and decipher between spot grades and contours; Attorney Robert McCann states he represents eight of the abutters. He states that there is a preliminary subdivision plan with a full street, cul-de-sac, and four houses proposed for the site. Much of the work will take place in the buffer zone. He expresses concern that the Commission is only getting a small piece of the puzzle and not the whole project and recommends that the Commission have an opportunity to review the whole project. He suggests that the Commission insist on restoring tree canopy. He wondered if this planting plan is a landscaping plan or a restoration plan. Hubbard responds that the preliminary subdivision plan is no longer being considered. He states he has had spoken with Attorney McCann and the neighbors and there has been discussion regarding a number of topics. He states that he came to the Commission for the delineation of the Coastal Bank and hired reputable organizations to delineate it, and that right now there is one house that is to be constructed and there is another house that is being razed. Maxner asks what the test pits were done for. Hubbard responds that the test pits were done for a definitive plan for a subdivision (four houses). Maxner states the drainage for the four houses may affect the resource area. Hubbard responds that he does not believe that is true. Goodenough states that she is troubled that a Cease and Desist was issued and it looks like more work is being done on the site than should be done. She is very frustrated that the Commission asked Hubbard to stop work and he did not. She states that this behavior shows a complete lack of respect for the Commission and is asking the Commission for one thing but the Planning Board for something completely different. Griffin states that Mr. Hubbard is entitled to pursue more than one path to develop the property. If a subdivision is approved, he will have to come back before the Conservation Commission. Goodenough states her issue is that the Commission has not decided on the Coastal Bank delineation. Hurlburt states that it needs to be clear that this is an Order of Conditions via a Notice of Intent that the Commission would be issuing, and not a delineation specifically. She states that this point needs to be made clear because the Order of Conditions is for a Notice of Intent. She states that Mr. Hubbard had identified the delineation aspect of the project, which is different from a Notice of Intent. Hurlburt states if the applicant wanted strictly a delineation approval, it could have been done two ways: with an Abbreviated Notice of Resource Area Delineation or a Request for Determination of Conservation Commission Meeting Minutes April 1, 2003 Page 6 Applicability. A Notice of Intent is for an Order of Conditions. If there are changes (grade, etc.), the applicant must come back and refile. This needs to be made clear. Griffin states he thinks if a subdivision plan were to come before the Commission, a new Notice of Intent would not be a modification of the plan. Hurlburt responds that the original plan and Order would have to be pulled off the table according to DEP. She states that it would be easier to only do the delineation as it has been identified that Mr. Hubbard is looking for the delineation. She states that if he was looking for strictly the delineation, he should have done an ANRAD or RDA, but he filed for a Notice of Intent and therefore seeking an Order of Conditions to do the project as presented. She states that this gives him more flexibility to do more on the site. Hurlburt states that this is not necessarily the wrong approach, but she just wants the Commission to understand the difference. A member of the public asks if the applicant can start building. Hurlburt responds that if they are out of the 100-foot buffer zone, the Conservation Commission has no jurisdiction, and at that point it would be a Planning Board issue. Hubbard asks if the Commission could provide some feedback. Lang states he would not vote to issue an Order of Conditions tonight because the Coastal Bank is delineated incorrectly. Hubbard requests that the hearing to be continued to the next scheduled Conservation Commission meeting. Paluzzi moves to continue the hearing, seconded by Squibb. All members are in favor. Motion carries (6-0). New: 6 Fox Hill Court – Addition to single family home and leveling outside yard – Wywoda Maxner reads the legal notice. Ray Guertin, architect for the applicant states the applicant is proposing an addition to a residence within 200 feet of a Riverfront Area and Buffer Zone to Bordering Vegetated Wetland. The project is for an addition on the north side of the house (approximately 23 feet x 25 feet). He explains that the intent is to utilize the existing fill to level off the side yard, and the other part of the project is screening an existing rear deck on the east side of the house. He states that erosion controls will be provided on the site and asks the Commission for guidance for the location of the hay bales and silt fence. Lang states for the contractor to use his best judgment and the Administrator can review the erosion control prior to the start of work. Maxner states she visited the site and provides pictures of the side yard area. Maxner asks if additional material will be needed for the grading. Guertin responds that no new Conservation Commission Meeting Minutes April 1, 2003 Page 7 material will be needed. Maxner asks if the two large beech trees will be removed. Guertin responds that they will have to be removed because there will be damage to the root systems of the trees by the proposed excavation. Lang asks if there are any further questions from members. There are none. Lang asks if there are any questions from the public. There are none. Paluzzi moves to close the hearing, seconded by Goodenough. All members are in favor. Motion carries (6-0). New: Foster St., Common Lane, Thistle St., Hale St., Oak St. – Construction of underground duct bank system with 40 manholes and PVC conduits – Mass. Electric Elizabeth Greene and John Hayes from Mass Electric provide an overview of the proposed project. Greene states that the project entails excavation in the street, installation of underground duct bank system with manholes and PVC conduits. She states the purpose of the project is to provide infrastructure for substations in the Cape Ann area. Lang asks when the project will start. Hayes responds that it will start in the mid-summer. Duff asks how long the project will take to complete. Hayes responds that it will take approximately 6 to 8 months to complete the project, but that may not include final paving of the street. Ann Nichols, 163 Common Lane, expresses concern for the salamanders and vernal pools that are present along parts of Common Lane. She states that Common Lane has a salamander crossing and a big vernal pool. She states that she has been helping salamanders and wood frogs to cross the road for quite a few years now, and there is a large population of these amphibians located near her house. There is discussion regarding creating a tunnel under the road to accommodate the salamander migration. Greene states that Mass Electric would not be opposed to looking into the possibility. Lang asks if they anticipate any need for dewatering, considering they are so close to wetland areas and a bank of a stream in one area of the route. Hayes explains that the proposed conduit will be placed over the existing culvert pipes, which will be approximately 5 feet deep, and dewatering issues will be dealt with when or if they present themselves. Bill Kelly, 220 Common Lane, expresses concern about the condition of Common Lane. He states it is used by a tremendous amount of traffic and he asks what the condition of the road will be after the project is complete. Hayes responds that Mass Electric will put it together pursuant to the Department of Public Works, and it will not be left in a worse condition. Lang asks if there are any further questions from either the public or the members. There are none. Conservation Commission Meeting Minutes April 1, 2003 Page 8 Paluzzi moves to close the hearing, seconded by Squibb. All members are in favor. Motion carries (6-0). Certificate of Compliance: New: 15 Trask Street – DEP File #5-745 – David L. Bilodeau & Sons Maxner states she visited the site and she provides photographs of the site. She states that some of the hay bales left over have been graded over and the grass has grown over them is some spots. Goodenough suggests that the hay bales that are not grown over be removed as soon as possible. Maxner agrees to write a cover letter with the Certificate requesting that the hay bales and silt fence be removed. Lang asks if there are any further questions from members. There are none. Paluzzi moves to issue a Certificate of Compliance for 15 Trask Street, seconded by Dr. Johnson. All members are in favor. Motion carries (6-0). New: 32 Iverson Road – DEP File #5-483 – Brian Call Maxner states that the house was built in 1999 and the applicant would like to build a garage. She visited the site and provides photos and asks for the Commission’s direction regarding the brook located in the rear yard of the dwelling. Lang asks how far away the brook is from the proposed garage. Maxner responds that it is over 100 feet. Lang states that the applicant will need to reapply for a RDA. Maxner states that she will write out the Certificate of Compliance and will provide information regarding a RDA. Paluzzi moves to issue a Certificate of Compliance, seconded by Goodenough. All members are in favor. Motion carries (6-0). ECV Bikers Association – Property Monitors Matt Plum, a member of the Biker’s Association introduces himself. He states the association is a North Shore based cycling club interested in community involvement. He explains that members of the association are proposing to volunteer as “property monitors” for the property located between Greenwood Avenue, Common Lane and Route 128 in Beverly. He states that they would monitor the property for vandalism and keep the trails clear of debris, as well as organize and sponsor two or Conservation Commission Meeting Minutes April 1, 2003 Page 9 more trash pick-up days. Plum states that his organization likes to give back by working with local Conservation Commissions and organizations. Lang asks how the association would work with the Conservation Commission. Plum responds that the association could provide reports in the spring and fall. Paluzzi asks if bike riding on open space trails have led to soil erosion. Plum responds that there has been a lot of biking going on for many years, and he has not seen evidence of major damage from that type of activity. Paluzzi moves to accept the offer of the ECV Bikers’ Association to be stewards of property located between Greenwood Avenue, Common Lane and Route 128, seconded by Goodenough. All members are in favor. Motion carries (6-0). Conservation Commission property off Standley Street – Conservation Restriction Stella Mae Seamans states that she is a member of a new organization entitled the Beverly Conservation Land Trust. She states that she received a call from the Essex County Greenbelt Association regarding concerns about Conservation Commission property located off Standley Street. She asks if the intent for the usage of this property is different from the original agreement or language on the deed. Hurlburt states that she and Amy Maxner met with Stella Mae Seamans and they were clear that nothing is going on at this property. Someone had called a trustee of the family who gave the property to the City, and that is where the whole situation started. She states that for six years nothing has happened. Hurlburt suggests that Seamans calls the Greenbelt and tell them that nothing is planned and there is nothing on the table for this property and the intent is to keep it the way it is as discussed during the meeting with Maxner and Seamans. Seamans states she believes the language in the deed is strong enough and she does not believe a Conservation Restriction is necessary. David Rimmer, from the Essex County Greenbelt, states that there doesn’t seem to be a framework for managing the city’s land. He states the donors came to Greenbelt because they knew one of the Greenbelt’s board members. Rimmer stated that the Greenbelt, in turn went to Seamans because they thought it would be the appropriate route. He states that a restriction could add a layer of protection to the property and provide more framework. Duff states that if there is an issue with city conservation land, the place to go to is the Conservation Commission. She does not even understand what the whole discussion is about, as there is no intention of use of the land. She states that if there is concern that the Waring School or somebody else is encroaching on the land, then that is a conversation that you need to have with Deborah Hurlburt and she would advise the Commission as to how to act on it. Conservation Commission Meeting Minutes April 1, 2003 Page 10 Seamans states that since she had this discussion, she will go back and come up with a management plan that the owners feel comfortable with. Hurlburt states that would need to come before the Commission because that might be the BCLT management plan, but not the Commission’s management plan. She recommends that Amy Maxner speak with Gerry Marsella, who is the surveyor, to look to see if there is encroachment on the property across the street. The Commission will do the management plan in office and then it could be approved. Seamans states she wants to work with the Commission for the proper management of this property. Vitale Site Discussion Goodenough recommends tabling this discussion because she is concerned that New England Power might not do the remediation and that it would affect the city’s negotiating power. Paluzzi states all the Open Space and Recreation Committee wants is for the Conservation Commission to say whether or not it supports active recreation on this site. Lang states if the city wants to use the site for ball fields, New England Power would have to factor that into the remediation. He expresses concern that if the Commission waits, they will lose an opportunity. Paluzzi moves that the Conservation Commission favors the Vitale Site to be used for playing fields when it is properly approved by DEP, seconded by Goodenough. Lang asks if there is any discussion. Dr. Johnson states that the Commission put this on hold pending a legal decision from the City Solicitor. He asks if the Commission has received an opinion from the City Solicitor. Maxner responds that Mr. Gilmore’s opinion was that there was no conflict of interest for Squibb and Paluzzi to vote. Goodenough, Paluzzi, Squibb, Lang vote in favor of the motion. Dr. Johnson and Duff are opposed. Motion carries (4-2). 30 Longmeadow Road – Anthony Lavita Mr. Lavita is not present at the meeting. Goodenough states Mr. Lavita needs to clean up the site and attend a Conservation Commission meeting. She states that he bypassed the process because he did not file a Notice of Intent and he should follow the rules. Conservation Commission Meeting Minutes April 1, 2003 Page 11 Goodenough moves to issue a Cease and Desist Order for 30 Longmeadow Road requiring Lavita to file a Notice of Intent for any further activity in this area, seconded by Paluzzi. All members are in favor. Motion carries (6-0). Regulations – Set Public Hearing Members discuss the proposed regulations. Goodenough recommends that there be specific instructions regarding the removal of erosion controls when projects are complete. Hurlburt states that this condition could be put in the Order of Conditions. Goodenough states she is angry that people can come in with different plans for different boards and this should be addressed somehow in the regulations. Duff states that people find loopholes and that there should be one set of plans and she recommends that the Planning Board be taking Conservation Commission findings into consideration. Hurlburt states that the Conservation Commission only has jurisdiction up to 100 feet, and if an applicant only wants to show you a development up to that 100-foot buffer zone, that is all they are required to do. She explains that the regulations would have to be rewritten to identify that the Commission wants to review something that is bigger than the 100-foot buffer zone. She states that the ordinance would need to be revised as well. Hurlburt explains that the Commission could require, perhaps in the regulations that an applicant file simultaneously with other boards in the city. She states that the regulations in the Wetlands Protection Act currently suggest that the Commission is the first board that an applicant must file with. She suggests that the Commission could require in its regulations that they do that simultaneously, so that the Planning Board hearing is going on the same time as the Conservation Commission hearing. Elm Top Lane Discussion There is discussion regarding the Conservation Commission imposing fines for the clear cutting on the Coastal Bank. Hurlburt states that she thinks fines are very appropriate and there should be a discussion with Peter Gilmore. Duff moves that Amy Maxner send a letter to the Hubbards stating that the Conservation Commission is seeking a legal opinion regarding levying fines retroactively, if so advised by counsel, for violations of the Cease and Desist Order and for clear cutting the Coastal Bank. Paluzzi modifies the motion to include a statement in the letter that the fine for the violations shall be $100 per day, retroactive to the first day of the violation seconded by Goodenough. All members are in favor. Motion carries (6-0). Other Conservation Commission Meeting Minutes April 1, 2003 Page 12 Chapman’s Corner Discussion Maxner states she had a conversation with Joanne Avallon regarding Chapman’s Corner and the certification of a vernal pool at the site. Hurlburt asks if Maxner spoke with Bob Griffin. Maxner responds that she spoke with Bob Griffin and he said that he was not sure what he was directed to do during the ANRAD process. Hurlburt recommends that Maxner call Bob Griffin and tell him that he needs to get someone out there to certify the vernal pool and if he does not, the Commission will go out and certify it. She states the Ordinance protects vernal pools whether they are certified or not. Discussion with Carmen Fratarroli Maxner states that she has had a discussion with Carmen Fratarroli regarding the beavers and how to eliminate the problem. She states that Mr. Fratarroli is asking the Commission permission to breach the dam and hire a licensed trapper to take the beavers away as requested several months ago. Hurlburt recommends that Maxner speak with Fratarroli and suggest that he do something other than drown the beavers. There is a technology available so that he won’t have to drown them. Maxner agrees to bring this to Mr. Fratarroli’s attention. Paluzzi moves to grant Mr. Fratarroli permission to breach the dam and hire a licensed trapper to deal with the beaver problem, Goodenough seconds. All in favor. Motion carries (6-0). Earth Day Celebration Maxner states that she is working with Eileen Duff regarding the upcoming Earth Day activities. She recommends that Conservation Commission members attend the activities. She states that the Beverly Conservation Land Trust had reserved the gazebo for the Cape Ann Vernal Pool Team to set up displays and the like. She states that Duff thought it would be a good idea for the Conservation Commission to join in and set up a table. Duff states that there will be flowerpots for kids to decorate and other activities. Hurlburt recommends that the Conservation Commission members set up a table and provide handouts regarding wetlands, identification of the land that the Conservation Commission owns and people can access, etc. Open Space and Recreation Draft Plan for Sally Milligan Park Maxner provides the Open Space and Recreation Draft Plan for Sally Milligan Park to members of st the Commission. She asks that they review the plan and provide comments by June 1. Conservation Commission Meeting Minutes April 1, 2003 Page 13 Adjournment Paluzzi moves to adjourn, seconded by Goodenough. All members in favor. Motion carries (6-0). The meeting is adjourned at 10:05 p.m.