Lenox Conservation Commission
January 5, 2012
Minutes
Town Hall
Members present: Chair Neal Carpenter, NC; Joe Strauch, JS; Vince Ammendola, VA; Tim Flanagan, TF; Dick Ferren, DF; David Lane, DL; Rose Fitzgerald Casey, RFC
Staff present: Peggy Ammendola, PA
Kennedy Park Overlook NOI (SMA) Dr. Jordon Fieldman Memorial
The first hearing on this matter was scheduled for October 20, 2011. On October 19, 2011 Robert Meltzer, attorney for Citizens Advocacy For All requested a continuance because of a religious holiday. The Commissioners agreed to the request and rescheduled for November 17, 2011.
At the November 17, 2011 meeting Town Manager Greg Federspiel, told the Commission that Attorney Meltzer felt that there was a need for a more neutral venue to conduct a hearing for this project and the Town requested that the application be forwarded to Massachusetts Department of Conservation and Recreation (DCR) for a hearing and final determination.
The Commission asserted that they were the correctly constituted hearing authority and continued the hearing to January 5, 2012.
At tonight’s hearing, held in the Board of Selectmen’s meeting room, there were approximately 17 members of the public present.
NC advised those present that the Town had received a letter from Attorney Robert Meltzer, representing Citizens Advocacy for All, and Town Counsel Frederica McCarthy, both of whom were asking the Commission to consider a postponement of tonight’s hearing as the attorneys were in the process of scheduling mediation in February, hoping to find a resolution that would be acceptable to all parties.
JS made a motion to deny the request. VA seconded the motion and the Commission voted to deny by a vote of 7-0.
Before the presentation of the Notice of Intent, NC briefly reviewed the procedure for the hearing and outlined the responsibility of the Commission. Noting that there have been inaccurate statements made regarding the SMA and this hearing, he provided the following facts:
1) Statement of Jurisdiction, Article 1.4 of the Lenox SMA-NC said that towns who have adopted the SMA have heights of 1400 or 1500 feet. TF created the map and the adoption of the 1400 foot height was because 1500 feet provided little protection and 1300 was too much. When the 1400 foot height was decided upon, it was not with the Overlook at Kennedy Park in mind. The main purpose of the Act is to prevent clear cutting.
2) The Commission has agreed to continue the hearing twice, only at the request of the Applicants (Town of Lenox) who were accommodating the Citizens Advocacy For All and their Attorney Robert Meltzer. The Commission did not initiate the continuances.
Presenting the Notice of Intent were Town Manager Greg Federspiel, Attorney John Stewart of Murphy & Manitsas, LLP, and Steve Mack of Foresight Land Services. Mr. Stewart was filling in for Town Counsel Frederica McCarthy who was unavailable for tonight’s hearing.
Mr. Federspiel, representing the Board of Selectmen and the Kennedy Park Committee, began his presentation by explaining that when the improvements to the Overlook at Kennedy Park were made last spring the proponents were of the opinion that none of the attributes which the SMA seeks to protect would be negatively impacted, but that the Conservation Commission felt that the Commission should be the ones to make that decision, therefore the Town filed the NOI. He said that the central issue is if the project caused any negative impacts under the five natural attributes stated in Section 8.1 of the regulations which gives the Commission the authority to impose conditions on projects. Mr. Federspiel referred to the Preamble of the Town of Lenox SMA Regulations and said that the purpose is to review applications
with a goal of minimum impact, not to prohibit projects, and making sure that the five attributes are protected. He stated that the two primary goals of the ACT are to protect watershed resources and preserve the natural scenic qualities of the mountain regions. Mr. Federspiel then referred to Article 2.24 of the Regulations in which “natural scenic qualities” is defined as “The protection of the existing features of the environment by regulating activities to minimize potential adverse effects due to pollution or diminution of ground or surface water supply; flooding; substantial changes in topographic features or substantial destruction of vegetation.” He noted the absence of aesthetics in the definition.
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TF noted that it was important when referring to the “ACT” that everyone keep in mind that it is MGL Chapter 131 Section 39A, and that the other reference is to the Lenox Scenic Mountain Act Regulations.
Mr. Stewart presented a brief overview of MGL Chap 131 Section 39A (ACT) and said that the purpose of which is to to protect watershed resources and preserve the natural scenic qualities of the environment. He said that the Town regulations are more specific and more protective of the environment than the ACT. Referring to the tenth paragraph of the ACT, he said that the area of this project was restored at the original level. Mr. Stewart said that the belvedere was not visible above the tree line and that trees were not removed. He referred
to Section 3 of the Regulations and summarized that evidence could be shown that the three presumptions in 3.2 are not applicable to this project. In 3.3 a., it states that if any of the presumptions in 3.2 do not apply, the Commission should issue a Negative Determination. If any one does apply, a remedy can be crafted within the Regulations with conditions/mitigations.
Mr. Federspiel resumed his presentation and rebutted the presumptions in 3.2 a, b, and c. commenting that the belvedere is not above the ridgeline, the maximum of land area disturbed was 1600 square feet which is below the served that there was no significant change in drainage patterns and felt that the project represented a minimum impact.
RFC asked what would happen to the slabs with frost heave, and if the slabs moved, what could be done and what would happen to the drainage. Mr. Mack and DL felt that that there would not be a problem as it is well drained ground.
Public Comment
Sonya Bykofsky, speaking for the Citizens Advocacy For All, explained that the reasons for the two continuations were because there were legal questions about whether or not one could retroactively look at the SMA. “We requested continuations to avoid getting into any, what might not be a legal process.” She said that she sees nothing in the SMA that suggests anything other than an enforcement order after the fact.
NC agreed that this is a completed project, and that under the Wetlands Protection Act, the Commission has experienced dealing with work that has been done without permits. In that event the Commission has the discretion when it comes to enforcement. The Commission can decide to take action or not take action. An enforcement order can be issued if work is in progress, but if it is discovered after the fact, one is required to file and come before the Commission for determination and remedial action.
TF responded that her questions were regarding process and that the Commission had a responsibility to act on this particular Notice of Intent at this hearing which provides her and others the opportunity to comment which helps the Commission ask the appropriate questions of the applicant so that the Commission could give the Notice full consideration.
Ms. Bykofsky questioned why the one who built the monument did not file and if this was a precedent. She insisted that in every other case the one who installs or constructs a project is the applicant. The Commission responded that it is not uncommon for a property owner to be the applicant, not always the one who does the work.
NC, responding to additional questions by Ms. Bykofsky regarding construction of the belvedere, stated that this is a completed project and that the Commission will make a determination as to whether what is installed is allowed under the ACT.
Ms. Bykofsky said that the Citizens Advocacy For All wrote to the Commission on September 21, 2011 asking the Commission to issue an enforcement order on this project. NC explained that enforcement orders are issued to stop an action, and suggested that the time for her group to have asked for an enforcement order was approximately six months earlier. It was at that time when Ms. Bykofsky and others took pictures of the active construction of the belvedere project. NC asked Ms. Bykofsky why she didn’t bring this to someone’s attention at that time when she was aware that there was ongoing construction. Her response was that she thought it was a “done deal’.
Joan Mears asked the Commission why haven’t there been any permits issued for this project. TF advised that when this matter came to the attention of the Commission they first asked for a Request for a Determination of Applicability. This process would allow the Commission to make a determination of whether or not this project was subject to the jurisdiction of the SMA. When more information became available, the Commission went to the site and realized that this work triggered the SMA and recognized that the public should be involved. That resulted in a vote by the Commission to ask that a Notice of Intent be filed.
Ms. Bykofsky argued that in the application it is stated that approximately 4000 square feet of land was cleared, but her measurements indicate 8,000 sf. DF responded that it may have been a larger area during construction, but it has been restored. VA added that if the project work had been executed incorrectly the remains would still be there, but they are not. Also, he said, the Commission has dealt with “after the fact” with the Wetlands Protection Act and in doing so they look at the results recognizing that the Commission is obligated to be sure that any damage is remedied. The Commission is looking at this project to be sure that the work conforms to the SMA.
Ms. Bykofsky pointed out that the Regulations require one to file an exemption if one thought the ACT did not apply to a proposed project. VA responded that to file an exemption one would have to realize that the SMA applied.
There was lengthy discussion which continued to go back to the fact that permission should have been sought prior to the commencement of the work. The Commission agreed, but said that no one realized that at the time.
TF asked Ms. Bykofsky to focus on the Performance Standards with the Commission and provide any evidence of what she thinks would be a violation of those standards so the Commission could evaluate. Her response was that she believed that forty nine slabs of granite and that a large drainage pipe which had been placed in a cracked wall would change the drainage, but she conceded that she knew little about erosion or drainage. VA responded that the idea of the installation of the pipe was to improve the drainage. Once again Ms. Bykofsky returned to her argument that permission should have been sought prior to construction.
RFC said that no one was consulted prior to the commencement of the project and that changes can be made if it is thought that changes are warranted and suggested leaving emotion out of the discussion. Ms. Bykofsky responded that what she has said tonight is a legal matter, not for the Commission, and that she will take it to the appropriate venue.
JS made a point that the ACT does not draw a distinction of something being done on private vs. public land.
Ms. Bykofsky said the ACT is to protect this piece of land and the law should be enforced evenly and fairly across the board for everyone. She added: “There should not be certain people not having to file written applications for things when the law says you have to.”
Joan Mears spoke of her concern about the security of the wall under freezing conditions. Additionally she told of a recent personal experience of having five children all under the age of eight years. The children ran to the fence to try to walk along the wall. She feels that the previous fence offered more safety. TF suggested that safety or liability concerns would be an issue to take to the BOS. Mr. Stewart interjected that Ms. Mears should refer to the Recreational Use statute, Chapter 21 17c, before she makes any decisions about personal liability. Ms. Mears also said that she could not understand why the abutters were being asked to give permission for this project after it was built. The Commission informed Ms. Mears that she was referring to the certified notification to the
abutters which was letting them know of this public hearing so that they could participate.
David Stroud saying that while he believes all agree that the work was done properly, he wants to know what can be done now. He thinks the belvedere should be removed entirely. VA responded that the Commission does not have the authority to deem whether or not the belvedere is appropriate and that there was nothing in bylaws that prohibits the installation of a memorial and suggests that Mr. Stroud look to zoning for creation of such a bylaw.
Dick Mendel disputes the claim that it is a 3% grade and he thinks that the intent of the SMA is to protect the high overlooks and ridge lines for people who use it. It, he feels, is primarily for the scenic part, not the drainage that the SMA addresses. NC said that the intent of the SMA is to prevent clear cutting. Mr. Mendel is concerned that the decision made by the Commission is setting a precedent and “will change some other town and affect long term”.
Kate McNulty-Vaughan responded to Mr. Mendel’s comment about setting a precedent. She is a member of the Planning Board and former member of the Historic District Commission and she said that it is not uncommon that people have not followed the Zoning Bylaws when they should, but that it is because they are unaware that a bylaw may apply to their project. She said she looked at the Town of Lenox Development Guidebook which is online and discovered that there is no mention of the SMA. She feels that this is an oversight which needs to be corrected and that she feels that there was no intent on anyone’s part of sidestepping the SMA.
David Roche, a Selectman said that he frequents the park and was aware of what was going on and he does not believe that there was a conspiracy. He was not a Selectman when the project was approved by the Selectmen, but that he probably would have approved had he been. He encouraged the participants to stick to the issue
Joan Mears asked how the Commission would handle a request now for permission to install a monument at the site. VA said that the Commission would require an RDA, but that prohibition of memorials is not the jurisdiction of the Conservation Commission. At present there are no bylaws prohibiting. Mr. Roche told Ms. Mears that Ms. Bykofsky has prepared proposed bylaws that would address how future memorials are handled and that the Selectmen will be reviewing and working on this proposal over the next few months.
There were no others who wished to speak; therefore the public comment session was closed by a vote of 7-0
TF gave his reaction to the presentation given by the proponents as follows:
First and foremost the Commission would to have to decide if we feel that there has been significant adverse impacts to watershed resources or to the natural scenic qualities as defined in the ACT, but to do so the Commission would first have to consider the question whether there were regulated activities involved in this project. The ones that are directly named in the ACT and described by the proponents are removal, filling, excavation or other alterations. Those are not the only regulated activities but each of them is considered in the ACT to be a regulated activity, i.e., the extra things we could decide to regulate if we agreed that they had significant impact. There has been some removal and disturbance of fill on the site that in retrospect the Commission might have conditioned if they had the
opportunity or have tried to mitigate in some way. As we discussed with the question raised of 8,000 square feet of disturbance, the project has been disturbed but it has recovered. Whether disturbance excessive or not, the area has been stabilized and the public is served best by leaving in the stable state. This issue does not need to be mitigated by conditions.
With regards to water resources I feel that as it stands the project does not have an adverse impact but I believe that conditions would be required to make that true in the long run There are design features that include the swale area David mentioned and the pipes that concentrate the water flow that I feel are contrary to the performance standards. This section of the project needs to be conditioned to ensure that it remains stable in the future
With regards to natural scenic qualities, the words “significant” and “scenic” are clearly defined in the Regulations. Whether it is significant is a judgment call of the Commission. It says in the ACT that “scenic shall be applied as described”. Scenic is listed in Article 2.29 and the preservation of scenic is described in Article 2.24. I read this as indicating that the Overlook area is indeed scenic, but the fact that work is occurring in a scenic area does not mean that it violates the performance standards. The next question would be: “Does the work alter?” Here the wording of the Act is very explicit as it says “The work has an adverse effect when it effects scenic qualities because of the pollution or
diminution of private or public water supply, erosion; flooding; changes in topographic features or substantial destruction of vegetation.” As Mr. Federspiel said earlier, it does not say “because of aesthetics”. Although there may be a variety of opinions of appearance of the project, it is not clear to me that an alteration has occurred because of any of these that are on the list. I feel that performance standards can be met with some drainage improvements and I don’t feel that the performance standards are violated because of any of the things listed in the Regulations.
DL said that water should not be brought to the wall, but should be around the sides and out. He feels that had this project been brought to the Commission in the beginning, it would have been approved with conditions. He would not want the stone up to the wall.
NC asked for a motion.
VA made a motion that the Commission grant an Order of Conditions that covers Article 3.41 d., items 5 (V) thru 11 (XI), with the possible exclusion of item 10 (X), of the Lenox SMA and that the Commission be given, at the earliest, an engineer’s drawing that shows what will be done to conform to the above mentioned articles. Further the Commission is to be informed of what is going to happen, a timetable of when it is going to happen, to
make sure that everything that needs to be done for site control is done while it is happening, i.e., silt fences and what have you—the standard procedures. The Commission must be informed as to when the work is taking place so that the Commission can view it in progress and when it is finished.
The Commissioners discussed the fact that the plan presented was a design plan, and that ledge prevented deeper excavation, therefore the actual depth was much less. The consensus was to add in the motion that the applicants include an “as built” plan, giving the depth of penetration and the base materials used. VA included this in his motion.
JS seconded the completed motion. The Commission voted to approve 6-1. The dissenting vote was cast by RFC.
Dick Mendel, commenting on the Order of Conditions requirement of additional site work related to drainage, that the Commission was stating that the contractor who installed the belvedere violated the Lenox Scenic Mountain Act. The Commission responded that this project was not in violation of the SMA, but that there were additional requirements for complete compliance. TF added that the Commission has not determined that a violation of the SMA has occurred.
Jan Chague said that Kennedy Park belongs to all and it is for the scenery. She feels that there is some obstruction with the belvedere.
Other Business:
1) NC advised that the Board of Selectmen have asked that the Commission attend their meeting of January 18, 2012 to discuss Laurel Lake Preservation Association, LLC and their attempt to comply with the Order of Conditions issued.
2) Town of Lenox January 19, 2012 at 745 pm RDA for repairs to sewers.
3) Site visit regarding the Town of Lenox RDA will be Friday, January 13, 2012 at 3:00 pm.
Minutes: RFC made a motion to approve the minutes of December 15, 2011 with one minor edit. JS seconded the motion and the Commission voted to approve 7-0.
Respectfully submitted,
Peggy Ammendola
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