Lenox Conservation Commission
August 18, 2011
Minutes
Town Hall
Members present: Chair Neal Carpenter, NC; Joe Strauch, JS; Vince Ammendola, VA; Tim Flanagan, TF; Rose Fitzgerald Casey, RFC; David Lane, DL
Members absent with notification: Dick Ferren, DF
Staff present: Peggy Ammendola, PA
Martin & Judith Bloomfield, NOI, 323 West Mountain Road, Map 27 Parcel 3. Remediate prior alterations within the 100’ buffer zone and for landscaping and site improvements within the 100’ buffer zone. Continued from July 21, 2011 and August 4, 2011 as the Commission was awaiting comments from Natural Heritage & Endangered Species Program.
NC stated that comments have been received from Natural Heritage Endangered Species Program and that they have determined that this project, as currently proposed, will not adversely affect the actual Resource Area Habitat of state-protected rare wildlife species and will not result in a prohibited “take” of state-listed rare species.
Rob Akroyd of Greylock Design Associates gave a description of the work that has been completed and the work that is being proposed. The site has been stabilized, the silt fence is up and the swale along West Mountain Road has been cleaned up. Plantings are scheduled to be installed in the fall and spring, and snags and boulders will be brought in for habitat restoration. In the area of the leaching field the plans are to eradicate any saplings and to mow annually to keep vegetation down. The canopy will be thinned to let in more light.
TF expressed concern regarding the stripped area that will now be subject to invasives. Mr. Akroyd stated that there will be ongoing monitoring of the jurisdictional area and as invasives come up they will be removed. TF was also concerned about the driveway and Mr. Akroyd responded that water bars would be utilized for stabilization.
DL made a motion to accept the project as depicted on the drawings with the special conditions that the driveway will be stabilized by September 30, 2011 and that there will be no increase of invasive species in the buffer zone and RFC seconded the motion. The Commission voted to approve 6-0.
Minutes: RFC made a motion to accept the minutes of August 4, 2011 as changed and JS seconded the motion. The Commission voted to approve 6-0.
Estelle Miller, RDA, 61 Bramble Lane, Map 1 Parcel 44. Drainage improvements to roof run-off and sump pump to direct water away from house foundation.
Shannon Boomsma, of White Engineering, made the presentation. Ms. Boomsma stated that the subject property is located on the lake side of Bramble Lane. She advised that originally it was thought that the home had a full basement, but it actually is a partial basement and partial slab. Ms. Boomsma described the proposed improvements that would direct the water from down spouts and sump pump away from the foundation. On the east side of the home the water from the down spouts goes into a black pipe. The proposal would be to direct this water into the woods. On the west side of the home there are three down spouts and it is proposed that the water be directed out to a stone apron on the west side. There is an existing berm between the home and the lake (west side) which serves as a
buffer to keep ground water from the lake. On the west side there is also a pipe from the sump pump for the basement. The applicant would like to direct this water into a stone lined level spreader. The spreader would absorb and spread out the water.
TF suggested that the spreader be placed further back so as to protect the lake. Discussion ensued and it was agreed that this could be done.
TF made a motion to issue a Negative 3 Determination with the condition that the sump pump and west gutters will exit on the northwest corner of the property at the 76 foot contour and that the applicant will submit a replacement plan with the modifications depicted. VA seconded the motion and the Commission voted to agree 6-0.
Site Visit for Estelle Miller’s RDA: August 10, 2011 and attended by Shannon Boomsma, VA, TF and JS.
Kennedy Park- Joan Mears requested to be on the agenda to discuss Kennedy Park and the newly installed memorial.
There were 7 citizens present and Bera Dunau of The Beacon and Jim Russell of The Berkshire Record. Also present was Town Manager, Greg Federspiel.
NC began by saying that this was an informal discussion on the Scenic Mountain Act which had been requested by Joan Mears. The following is a brief history given by NC regarding this matter as far as the Commission is concerned:
“The Lenox Conservation Commission is the hearing authority for the Scenic Mountain Act. Since the approval of the Scenic Mountain Act the Commission has not received either a Request for Determination of Applicability or a Notice of Intent from applicants seeking approval under the regulations of the Act. As far as the overlook goes I think it was it is just an “overlook”. No one has ever done this before and lots of people don’t even know the elevation. We were never informed about it, asked our opinion, or given documents on any of it. Some may have seen pictures at the Selectmen’s meeting, but I haven’t seen any documents. I believe that most of us have visited the site now. VA and I went to the site after the Selectmen’s meeting. The
overlook elevation is approximately 1495 ± feet which makes the area subject to the Act. We have never received plans or documents so we have never taken a vote or anything else on it. We did have a discussion at the last meeting (August 4, 2011) because it was brought up as it was an open meeting. It was not on the agenda. At the end of our meetings we ask if anyone wants to bring up anything to talk about. Most of the time these discussions have been questions about the Wetland Protection Act, but never the Scenic Mountain Act. Some members believe it is subject to the Act, so probably an RDA should have been filed.
After these comments by NC, public participation was solicited.
1) Question from a resident who did not state her name:
“Why is this informal? Why is this on your agenda if it is an informal item?”
Response from NC: “Nothing has been filed and there will not be a vote so it is “informal”. The Commission can’t take an action until an application is submitted.” It was explained that often there are informal meetings when an owner of property is not sure if they should file an application. TF suggested that this meeting be called “informational”.
2) Question from a resident who did not state her name:
“Can a Determination be asked after the fact?”
Response: from NC: “Yes you can, but no one realized they had to file. Normally a request for a Building Permit triggers formal applications such as a Request for Determination or Notice of Intent. Anyone can file, but the owner has to give permission. The Town of Lenox owns Kennedy Park; therefore they would have to give written permission for the filing of an RDA or NOI by someone other than the Town of Lenox.”
RFC added that a complaint stating there has been a violation can also be a trigger.
TF stated that to his knowledge there has been no regulatory oversight or action taken whatsoever regarding the Overlook at Kennedy Park
Ms. Bykofsky stated that she has spoken to Mr. Federspiel about what triggers the Scenic Mountain Act and that he advised her that asking for a building permit would be one and the other would be items referred to in Section 2.2 of the Town of Lenox Scenic Mountain Act Regulations. Ms. Bykofsky wanted to explore this section with the Commission.
The response was that without dimensioned drawings and an RDA, a determination could not be made by the Commission.
Ms. Bykofsky asked the Commission to look at Section 11.1 of the Town of Lenox Scenic Mountain Act which detail circumstances which would constitute a violation. She quoted that anyone in violation of the law shall forthwith comply with the order or restore the property to the condition prior to any violation.
TF stressed that it was important to make the distinction of the Scenic Mountain Act, MGL c. 131, § 39a, which is the law and the Town of Lenox Scenic Mountain Act Regulations. He explained that one must comply with the law and the regulations explain how to get there. Additionally TF explained to Ms. Bykofsky Section 11.1 of the Scenic Mountain Regulations which states that if someone purchases a property on which there was a violation, the purchaser “owns’ the violation and would have to comply.
It was agreed by all that the elevation of approximately 1495 feet was in excess of the 1400 feet mentioned in the SMA Regulations.
The next item addressed by Ms. Bykofsky was the definition of alterations that is given in the SMA Regulations.
Ms. Bykofsky presented to the Commission pictures that she claimed were taken of the construction process, which shows piles of aggregate materials, and excavators. This, she said, shows the scope of the memorial project which she feels is an alteration in excess of that which would trigger the Act.
NC stated that until the Commission sees the plans, a determination cannot be made. Ms. Bykofsky showed the Commission a small plan (about the size of a legal piece of paper) which RFC stated was the only plan that has been submitted.
Ms. Bykofsky read aloud from the Scenic Mountain Regulations. TF explained that what was being read by Ms. Bykofsky are definitions that serve as guidelines and pointed out that following the definitions were the Performance Standards which guides one on how it will work. He told Ms. Bykofsky that the first step is to file the RDA and briefly explained to her the following process. The Commission would consider if the law applies or not, if the area is jurisdictional or exempt for some reason, and whether the work or activity is subject to regulations. The Commission reviews to see where structures are proposed, the site lines and drainage. If the Commission determines the project is significant and if it finds a positive determination then the applicant is required to file a Notice of
Intent. One would either have to apply or file for an exemption.
Ms. Bykofsky feels that the construction of the memorial on the Overlook of Kennedy Park is a violation and that since neither the applicant nor the Kennedy Park Committee filed appropriately she asked if she and others who feel it is in violation could file a complaint. She said that the reason she was appearing before the Commission was to request an application and a formal determination from the Commission and to have the Commission vote. Again it was pointed it out what information the Act requires for the Commission make an informed decision. Ms. Bykofsky was told that she could file a complaint which could result in an Enforcement Order, but Commissioners expressed opposition to an Enforcement Order and indicated that filing an RDA would be the preferred process. Ms. Bykofsky asked if she
could request that the Town request the information the Act requires for filing an RDA. Mr. Federspiel said that she should submit a request to the Board of Selectmen.
JS asked Ms. Bykofsky if Mr. Kennedy had placed restrictions on the land when donated to the Town as to what was allowed and what wasn’t allowed. She responded that another parcel that was donated by Mr. Kennedy which did not include the Overlook had in the deed only that the land was to be “Preserved, restored or enhance nature”. JS asked if this project does not violate the Scenic Mountain Act is it acceptable according to the deed. There are no known restrictions listed in the deed.
NC said that what is really needed is a bylaw to prevent this from happening again.
Mr. Federspiel questioned the wording in the Act (Regulations) which states one “may” submit an RDA, but does not say one “must”. He asked how one debates this if an applicant, in theory, feels the SMA does not apply. He asked if they would be forced to file an RDA. TF responded that he thinks the language is more explicit under the Act (Scenic Mountain Act, MGL c. 131, § 39a) and if it were within the footprint of the jurisdictional area it is presumed that the work triggers the RDA process. TF continued that specific arguments are available for exemption to the applicant who believes the work would not be regulated. Based on the reading of the Act, he feels that for the any activity over 1400 feet it would be prudent to ask for a review
TF commented that there are many different opinions and eventually it is the Commission’s responsibility to make the determination, but in order to do that an RDA must be filed.
TF made a motion that the Commission consider a resolution that the Conservation Commission request that the Board of Selectmen submit an RDA on this project. JS seconded the motion and the Commission voted to agree 6-0. Mr. Federspiel will relay this information to the Board of Selectmen.
Other Business
Laurel Lake: NC gave to the Commissioners copies of the Order of Special Conditions for Laurel Lake Preservation Association. It was suggested that this be reviewed prior to the September 1, 2011 meeting when Ken Wagner updates the Commission on the results of the Laurel Lake drawdown.
RFC made a motion to Adjourn at 9:15 pm and DL seconded. The Commission voted
6-0 to agree.
Respectfully submitted,
Peggy Ammendola
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