Franklin Conservation Commission
Minutes of Meeting
October 29, 2015
To: Town Clerk
cc: Members
File
Present: J. Livingstone, P. Harrington, R. Pendkar, S. McLean, T. Henrichon, George Russell, Conservation Agent.
Chairman Livingstone announced the meeting would be audio and video recorded.
Mr. George Russell’s Agent’s Report has been appended to the minutes.
Continued - Public Hearing – Notice of Intent – 300 East Central Street
Mr. Russell stated the consultant was present to address Commission questions. Some issues were addressed in a letter and map received today at 5:00 PM. Mr. Russell had not reviewed information as it was just received.
Chairman Livingstone stated it would make sense to wait for peer reviewer comments on this information.
The Commission stated they would like enlarged plans as those provided were too small.
Mr. Donald Nielsen, Engineer of Guerriere & Halnon, Inc., addressed the Commission and stated he could provide larger full-sized plans. He requested the new information presented today be provided to peer review.
Ms. Lenore White, Wetland Scientist of Wetland Strategies, addressed the Commission and stated that under the BETA Group contract they were to review the wetland delineation. She submitted a letter to BETA Group on October 8, 2015 outlining some of the issues. The file numbers for project have been issued by DEP. Some areas were conservative and some areas needed to be moved for the delineation. The new plan with a new delineation was provided at 5:00 PM today. There are no other natural heritage issues or flood zone at the site. She honed in on the bylaw noting there was much work to be done in the 25-50ft. and the 50-100 ft. buffer zone. Regulations for work in those buffer zones require mitigation and there was no mitigation proposed in the NOI when it was filed. Now that the wetland line has been reviewed,
it must be determined if work is to be done in the buffer zone which may change the issue of mitigation.
Mr. Phil Paradis, Professional Engineer with BETA Group, stated they did a thorough review of the stormwater management system proposed for the site. There was a response to their initial comments and they have gone through it a second time. Issues remaining involve determining where seasonal high ground water is and determining the impact of that on the proposed stormwater management systems. They have been working with Planning Board on those issues.
Chairman Livingstone summarized the two big issues are the wetlands line moving and impacting mitigation and the data regarding the seasonal high water could potentially impact or require the need for a different stormwater management system. He confirmed that Don Nielsen was going to work with both groups on these issues.
Mr. Nielsen stated there should be a peer review site meeting with everyone before the next Conservation Commission meeting on November 12, 2015 so any wetlands issues can be discussed.
Mr. Russell stated the NOIs for 300 East Central Street and 340 East Central Street were submitted as separate NOIs by the applicant. The reason was that when applicant starts getting certificates of compliance and one is done and the other is not, applicant can move forward with the certificates. However, in terms of public hearings, Mr. Russell suggested that both hearings be continued to the next Conservation Commission meeting at the same time because they are so interrelated there is no need to separate them.
There was a motion made by Paul Harrington to continue the public hearings for the NOIs for 300 East Central Street and 340 East Central Street to November 12, 2015 at 7:20 PM. The motion was seconded by Scott McLean and accepted with a vote of 5-0-0.
Continued - Public Hearing – Notice of Intent – 340 East Central Street
For information on this public hearing, please see the information above for:
Continued - Public Hearing – Notice of Intent – 300 East Central Street
Clarification/Comment
Mr. Russell provided the Commission members with documentation addressing a clarification regarding the Oak Hill Condominium Amendment discussed at the Conservation Commission meeting held on October 15, 2015. The number of trees applicant planned to remove was significantly reduced in the jurisdictional area. However, the plans still showed a number of mitigation plantings. The applicant asked if the required mitigation plantings would be reduced as the number of trees to be cut down was reduced.
Chairman Livingstone stated when looking at mitigation the removal ratio should be approximately the same as this is the Commission’s usual course. He reiterated that trimming was not killing or maiming a tree, and the applicant just wanted to trim many trees. To be consistent and fair with procedure used for other applicants, it should be a 1 to 1 ratio for each tree they are cutting down. Mr. Russell stated he would let the applicant know.
Public Hearing – Lot 1 Marine Way – Robert Ruley
Mr. Robert Ruley, representing Scott and Nancy Boudreaux, 6 South Street, addressed the Commission and provided an overview of the history. In 2008, project had been approved and order of conditions for the Conservation Commission was done to build three houses, Lot 1, Lot 2, and Lot 3 at Marine Way. The owner of property had financial issues and project was put on hold for years. In 2014 Mr. Ruley returned to Commission and received an extension as they were going to start project, but it dragged on. Mr. Ruley then contacted Mr. Russell and asked by what date he needed to request another extension to renew. Mr. Russell stated March 26, which was approximately 15-16 days before the meeting, which was not enough time; therefore, an extension was not given. Mr.
Ruley stated he was told to refile the NOIs as applicant was not going to change anything. He had wetland scientist at the site and provided letters that all is the same. He then filed the NOIs and would now like extensions.
Mr. Russell stated there is nothing new; it is just resubmission of NOIs that ran out of time. The wetlands line is still good based on when it was last looked at. However, on a recent site visit Mr. Russell did discover there is much filter fabric fencing laying down being buried in the wetlands. It is in an area that is going to be disturbed anyway from the new construction. He recommended there be a special stipulation that the material be removed. Also, as of 6:00 PM today NOI numbers from DEP had not been received. Therefore, he would not recommend the hearing be closed. As similar to the last applicant’s case, Mr. Russell recommended all three of these public hearings be continued to the same time as they are in essence three NOIs for the same reason; they are all the same except for one
which includes a small portion of the driveway/private road. They are so intertwined they should be taken together.
Mr. Ruley stated he did not know what the filter fabric is from, but has no problem with removing it. He also stated it would be fine to put all NOIs into one hearing with three separate votes.
Chairman Livingstone recommended the applicant obtain the DEP numbers prior to the next meeting.
Mr. Russell stated said numbers from DEP are sent via email, formal letter, or available on DEP website.
Mr. Kurt Terwilliger, 5 South Street, addressed the Commission and wanted clarification of the extension process.
Commission summarized that the applicant refiled for a new NOI because the old permit had expired. Therefore, the clock starts again. This is a three-year permit that can be extended for three more one-year periods.
There was a motion made by Scott McLean to continue the public hearing for Lot 1 Marine Way, Lot 2 Marine Way, and Lot 3 Marine Way, NOIs to November 12, 2015 at 7:25 PM. The motion was seconded by Ravi Pendkar and accepted with a vote of 5-0-0.
Public Hearing – Lot 2 Marine Way – Robert Ruley
For information on this public hearing, please see the information above for:
Public Hearing – Lot 1 Marine Way – Robert Ruley
Public Hearing – Lot 3 Marine Way – Robert Ruley
For information on this public hearing, please see the information above for:
Public Hearing – Lot 1 Marine Way – Robert Ruley
GENERAL BUSINESS (items taken out of order from agenda)
Certificate of Compliance: 11 Forge Parkway
Mr. Russell stated all is in order for the release to be granted.
There was a motion made by Scott McLean to release the Certificate of Compliance for 11 Forge Parkway. The motion was seconded by Ravi Pendkar and accepted with a vote of 5-0-0.
Permit Modification: Franklin Heights
Mr. Mark Fantasia, the applicant, appeared before the Commission.
Mr. Russell stated that as indicated in the Agent’s report on a site visit he found the developer stockpiling excavated soil in an area of the Commission’s jurisdiction. Stipulation #12, a standard DEP stipulation, states only things shown on the plan can be done. There is no stockpile location shown on the plans.
Chairman Livingstone stated this was an oversight because commonly a stockpile location is noted and typically Commission asks the applicant to put it as far as practically possible from the wetlands.
Mr. Russell stated there were two stipulations, #56 and #58, attached by the Commission at approval which clearly mentioned stockpiling material. But, it was not shown on the plan. When such ambiguity results, he thinks the benefit of doubt goes to applicant. As a result, he temporarily suspended stop work order and asked applicant to come before Commission. He recommended the proposed change in wording which indicates that Commission knows there will be stockpiling. And, although not shown on plan, locations will be shown to Agent to make sure there are no issues, but will not hold up work. Also, applicant has put in place erosion controls.
Chairman Livingstone asked applicant if willing to make best efforts to have stockpile in good location and thanked applicant for making best efforts in spite of Commission’s oversight. Chairman Livingstone agreed that the Agent’s wording would be good to implement.
There was a motion made by Scott McLean to include in the permit modification for Franklin Heights the following wording:
After a review of the stipulations attached to the Orders for CE 159-911, it is the Conservation Commission’s position that the stockpiling of material was anticipated as ndicated in special conditions 56-58 and is therefore allowed. Given that no locations were indicated on the approved plans, and in order to prevent a repeat of the instant problem, all future stockpile locations must be submitted to the Conservation Agent prior to any stockpiling of material.
The motion was seconded by Paul Harrington and accepted with a vote of 5-0-0.
Continued - Public Hearing – 674 Pleasant Street - Thornhill
Mr. Russell stated there would be four members voting on this item for approval. Chairman Livingstone did not attend the last meeting and therefore cannot vote.
Mr. James Thornhill, applicant and property owner, Mr. Russ Waldron of Applied Ecological Services, and Mr. Ken McKenzie appeared before the Commission for removal of debris and trailers.
Mr. Waldron stated the filing was submitted to address some discrepancies between the original notice of intent, the proposed impacts and disturbances, and the as-built numbers. Originally submitted some numbers that were in error that made it look like the as-built disturbance was almost twice as what was proposed. They found out where the error occurred, redid the numbers, and Mr. Thornhill ended up on the downside of almost half of what was originally proposed. This information was submitted at the last meeting, but not in time for the Commission to review it. Mr. Waldron stated that given the back part of the property that the applicant has allowed to reforest naturally, and given a 2 to 1 ratio for what the as-built disturbance is, if there was going to be 2 to 1 mitigation required it would be
8,762 sq. ft. The revegetation area has totaled 9,941 sq. ft. If the revegetation area can be counted, then applicant is on the plus side by 1,079 sq. ft.
Mr. Russell stated it must be remembered that this is a submission of an NOI as part of an enforcement order because what was constructed under the original NOI did not meet the approved NOI and the Commission made a decision that a new NOI was required. Mr. Russell stated the applicant has done a good job of trying to get the proper information into the Commission so that the NOI can be approved. One outstanding issue that has not adequately been addressed is there are a number of trailers and storage containers on the site. There is still a question to the integrity of those trailers and storage containers as to what they could contain, could they leak, and should they be moved out of jurisdictional areas.
Chairman Livingstone questioned if moving them would cause greater disturbance than leaving them in. He asked Mr. Russell for professional opinion if they could be moved without extensive impact.
Mr. Russell stated that extensive is a subjective word, but yes.
Mr. Thornhill stated it is not his intent to leave the trailers there. It has been discussed many times. He stated he would like to move the trailer to Option #3 on the plan as discussed at the last meeting which is the furthest away from the wetlands. He stated he provided a letter indicating the contents of the trailer and he has pictures, but they are on his phone. During the summer there is very little in containers, mostly tools. In the winter he puts his four-wheelers in it as it is a sealed container. If anything were to leak in the container, the leaking material will stay inside. He would like to move it when the ground is frozen.
Due to some confusion on the plan with the marking of the options, Mr. Thornhill showed the Commission members where on the map Option #3 was located. He stated the tractor trailer is going off the property. He said the Conex box (overseas box) is at ground level and he has let the vegetation grow around it. This container is like a shed. He explained the places he considered putting it on the property. He described Option #3 which is behind the house. He did not know if he will dig into the property and bury part of the container of just place it on top of the ground. He welcomed the Commission to visit the property. He is proposing Option #3 as it is not intended as a permanent structure; when his children grow up and move out and he does not need the storage, he will remove the container.
Mr. Russell stated part of his recommendations required that the owner remove all items in jurisdictional area that could leak fluids onto the ground. For instance, there are some ATVs and a tractor on the dirt. There are a number of such items that should be moved onto a paved surface or offsite completely. He recommended it would be best to have a final revision map that shows only Option #3 which would be referenced in the order of conditions.
Mr. Thornhill stated he would have the plan redrawn to only show Option #3. He asked if items such as ladders, plow, and tractor should be removed from the drawing when it is redrawn as the items will be removed from the property as soon as he gets permission from the Commission and is allowed to remove them.
Mr. Russell stated the statute states cannot alter, fill or remove. So, the Commission, without granting a permit, cannot make statement to remove items. Mr. Russell suggested that on the plan that shows the final location a detailed note states, “to be removed.” He stated only the items that can leak fluids need to be addressed.
Chairman Livingstone suggested a numbered list of the items to be removed and a symbol for each to be referenced with notation indicating removal would make a clean, less cluttered map.
Mr. Thornhill stated the only items that can leak fluids on the property are the tractor and a motor on the boat. The ATVs are on the driveway and inside the Conex box. There is nothing left outside.
Mr. Russell stated a note should be put on the prints to indicate that any motorized vehicle or motor will be removed from the jurisdictional area to a paved surface.
Chairman Livingstone summarized that Mr. Thornhill will provide a new set of plans that show only Option #3, as well as a note stating any motorized vehicle or motor will either be removed, moved to a paved surface, or moved outside of jurisdiction.
Mr. Thornhill stated the areas available to store items are by the street, in his driveway, or by the woods. He does not want to store items in the woods because it would require cutting down trees and he does not want the items to be in view of his neighbor’s backyard as he is trying to be a good neighbor. He stated he is trying to be very concerned about the jurisdictional area.
Chairman Livingstone suggested that for the Conex box, Mr. Russell should determine wording that fulfills the intention that items that may leak will be removed from the area to a place that the items will not cause problems and provide said text to Mr. Russell who will review text to make sure it meets the Commission’s intention, it makes sense, and will be clear on the map. This can be accomplished through emails with Mr. Russell.
Mr. McKenzie asked about items such as ladders and pump jacks that come and go all the time.
Mr. Russell suggested that the Commission request from the Zoning Enforcement officer a report of what is transpiring regarding zoning issues, storage, etc. It should be set to rest whether there is a problem or not. This Commission keeps getting the questions, but it is beyond this Commission’s jurisdiction. Mr. Russell stated his office is receiving calls, and he refers them to the Building Commissioner. He thinks documentation from the Building Commissioner indicating that he is aware of situation and whether it is allowed or not is in order.
Chairman Livingstone agreed that these are really zoning questions. It is the Commission’s intention to not get involved in neighbor situations.
Mr. Thornhill stated that the phone calls are probably coming from his neighbor on the left.
Commission member indicated that all questions have been answered and Commission seems to be in a position to be able to approve the NOI with notation indicating approval subject to the final plan being submitted.
Chairman Livingstone stated Commission has held up closure of meetings for similar situations in the past when there were parts that were completely missing or would need some very confusing wording to approve before final plans were developed.
Mr. Thornhill stated he did not have a problem with the continuance.
There was a motion made by Scott McLean to continue the public hearing for the NOI for 674 Pleasant Street to November 12, 2015 at 7:30 PM. The motion was seconded by Paul Harrington and accepted with a vote of 5-0-0.
GENERAL BUSINESS - continued (items taken out of order from agenda)
Minor Buffer Zone Activities: 57 Dover Circle
Applicant was not present to address the issue. Mr. Russell stated he would get in touch with applicant. This item will be taken at the next meeting.
Permit Modification: 11Thomas Drive
Ms. Suzanne Walmsley, property owner, addressed the Commission. She stated they had torn down an existing porch and replaced and extended it on one side with a bump-out for the grill.
Mr. Russell stated they already have an approved minor buffer zone activity. This is a request for a change to an MBZA which is something that has not come up before. Therefore, the Commission’s decision will be precedent setting. He noted if this change had been in the original MBZA, it still would have been approved. He did not have a picture to show the Commission, but the builder had come to the office and shown where the additional two piers would be located; this would be the only additional land disturbance. The plan is in his office.
Chairman Livingstone summarized if future applicant came in for a request for a change to an MBZA, one of the criteria would be to determine if the change had been in the original MBZA, would it still have been approved.
There was a motion made by Scott McLean to approve the Modification to the MBZA for 11 Thomas Drive as the applicant has filed with the Commission. The motion was seconded by Paul Harrington and accepted with a vote of 4-1-0.
Permit Modification: 8 Paulene Drive
Mr. Russell stated this is not an MBZA, it is an NOI. The Commission must decide if it is a significant enough change to require a new notice or an amendment to the existing notice of intent. Either way it will then proceed to a hearing.
Ms. Nicole Shugrue, applicant, addressed the Commission and stated this is a request to make a modification or an amendment to the existing NOI for the existing structure of the garage. A modification to the plan was made after reviewing the footprint to the staircase on the inside of the garage and realizing it would be best placed on the outside of the garage. The request is to make staircase that accesses the second floor of the garage on the outside.
Mr. Russell stated the movement of the staircase requires the addition of six sonotubes that are on the side of the garage that is closest to the wetlands, closer to the jurisdictional area between the 25-50 ft. buffer zone. The policies of the DEP, Commission, and 310 CMR state if applicant wants to change a notice of intent, it requires a public hearing even if it is minor.
Chairman Livingstone stated the modification could be made, but it will require a hearing.
There was a motion made by Scott McLean that the NOI for 8 Paulene Drive, the movement of the staircase from inside the garage to outside the garage, raises to the level of a modification to the existing NOI as opposed to a new NOI. The motion was seconded by Ravi Pendkar and accepted with a vote of 5-0-0.
Discussion: 620 Pleasant Street
Ms. Kristin Oakes, owner, stated her current NOI has been filed and approved. The scope of the project has been significantly reduced. They were originally going to enclose the deck and make a sunroom addition. That has been changed to just adding a 16 ft. x 24 ft. deck with no roof behind the garage. She would like to withdraw the NOI and submit an MBZA because they are only installing nine sonotubes. She stated Mr. Russell had suggested that she have a discussion with the Commission before proceeding. She asked if with the new proposed change, is it acceptable as an MBZA. The new proposed work is within the 100 ft. area. The area is currently grass which is considered previously disturbed. The house was built in 1998.
Chairman Livingstone stated the Commission has done a deck as an MBZA if it was in previously disturbed area and not that significant in size.
Mr. Russell stated this was an NOI for an MBZA. The NOI has been approved and recorded. Commission has been clear in the past they were not going to use MBZAs to modify NOIs. He would like to get Commission’s feedback as to if they would see this as an approval of an MBZA. If feedback is positive, applicant would have to submit application for MBZA and a request for release of conditions. Once NOI is recorded, it cannot be wiped out; it must be released as part of the procedural requirements. So, procedurally, applicant would file the MBZA and the request for release of conditions. Commission would have to grant the release of conditions and then approve the MBZA. The project is rather small in scale and no work has been done on the NOI. A building permit cannot be granted until this is done.
Chairman Livingstone summarized that the Commission believes that the new work to be done under the new plan is an MBZA and is consistent with past Commission decisions. He stated applicant should feel free to follow the procedure Mr. Russell outlined.
Violation: 23 Longfellow Drive
Mr. Russell stated there was significant deposition of vegetated material in the jurisdictional area. The owner was previously before the Commission and aware of issue. They told the Commission they planned to file an NOI for it because they planned to build a house. The Commission requested the NOI be submitted by October 8, 2015. The property owner was at the meeting and agreed to the date. Nothing has been received, not even a phone call, email, or office visit, by property owner or his engineer. Therefore, issuance of the enforcement order was recommended.
Chairman Livingstone stated for the record there was no one from 23 Longfellow Drive in the audience.
Mr. Russell stated owner received notification that item was on tonight’s meeting agenda as it was sent out by certified mail on October 13, 2015.
Chairman Livingstone stated the Commission has done all they can in terms of reaching out to the violator, and he agreed that Mr. Russell’s request was justified.
Mr. Russell explained the concern is that there is a path wide enough to drive a vehicle down on Longfellow Drive with a large bordering vegetated wetland next to it. Between the path and the BVW there is a 6 to 10 ft. high row of leaves, trees, limbs, and garbage as far as visible in the path. He recommended on the enforcement order they have to file a restoration plan by December 1, 2015.
There was a motion made by Scott McLean to send out an enforcement order for 23 Longfellow Drive and the applicant will need to have a restoration plan or NOI into the Conservation Commission by December 1, 2015. The motion was seconded by Ravi Pendkar and accepted with a vote of 5-0-0.
Violation: 31 Hayward Street
Mr. Russell was notified by the applicant and property owner that they are preparing an NOI. They are going to do more than originally planned; they requested an extension to the end of the calendar year. Mr. Russell recommended the Commission extend the October 8, 2015 deadline to December 31, 2015.
There was a motion made by Scott McLean to extend the October 8, 2015 deadline for 31 Hayward Street to December 31, 2015 for the NOI. The motion was seconded by Paul Harrington and accepted with a vote of 5-0-0.
Signed Certificate of Compliance & Permit Modifications
Certificate of Compliance – 11 Forge Parkway – Eastern Propane – CE159-1082
Permit Modification – Franklin Heights – Mark Fantasia – CE159-911
Permit Modification – 11 Thomas Drive – Walmsley
Permit Modification – 8 Paulene Drive - Shugrue
There was a motion made by Ravi Pendkar to adjourn the meeting. The motion was seconded by Scott McLean and accepted with a vote of 5-0-0.
The meeting adjourned at 8:53 PM.
Respectfully submitted,
Judith Lizardi
Recording Secretary
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