Lenox Conservation Commission
November 1, 2012
Minutes
Town Hall
Members present: Chair Neal Carpenter, NC; Joe Strauch, JS; Vince Ammendola, VA; Tim Flanagan, TF; David Lane, DL; Dick Ferren, DF
Absent with notification: Rose Fitzgerald Casey, RFC
Staff present: Peggy Ammendola, PA
Edward Merritt, Lime Kiln Rd., Map 27 and portion of Parcel 18-Review of progress being made relative to the Enforcement Orders issued on August 3, 2012 for MA DEP file numbers 198-0234 “House Lot” and 198-0219 “Studio Lot”.
Present was Rob Akroyd of Greylock Design, Ed Merritt and Mark Stinson. Mr. Stinson is the DEP Circuit Rider for the Western Regional Office of Massachusetts Department of Environmental Protection.
Mr. Akroyd provided updated plans that the Commission had requested at the October 4, 2012 meeting. Mr. Akroyd had the revisions highlighted. The plan for the “Studio Lot” reflects the addition of Eastern White Pine. It also indicates the guard rail style of demarcation in place of the stone wall which had been approved on the original Order of Conditions. This demarcation runs all along the driveway and down as discussed on site visits. Mr. Akroyd noted the final revision date which now brings the drawing up to date.
The other drawing, referred to as the “House Lot” drawing, reflects the guard rail demarcation from Lime Kiln to West Mountain Road and details the proposed manner in which the guard rail is to be constructed. This drawing also indicates the final revision date.
Mr. Akroyd stated that he had a conversation today with Misty Ann Marold of Natural Heritage and provided to her copies of the drawings which he said she has verbally approved. Ms. Marold informed Mr. Akroyd that she will follow up with an email and Mr. Akroyd will forward that written approval to PA.
Mr. Akroyd told the Commission the white pines that all had agreed upon have been planted and that Mr. Merritt has promised that the rest of the plants will be installed sometime next week.
Additionally Mr. Akroyd said that he has determined that in the area cleared several years ago some desirable vegetation has regenerated since the issuance of the Order of Conditions, so the new plantings in that area will be adjusted accordingly. Also in that Order, there was agreement for the removal of non-native invasive species identified as multiflora rose and bittersweet. When they are removed, the new plantings will be adjusted.
With respect to the Enforcement Order on the “Studio Lot”, Mr. Akroyd believes that the only issue remaining is the agreed upon boulders/stone wall demarcation that would prevent the applicant or a subsequent property owner from accessing the restricted area. After that had been agreed upon, it was later determined that this location was in the flood plain and the use of boulders would result in the loss of compensatory storage, therefore an alternative demarcation of a guard rail was proposed. This suggestion, described by Mr. Akroyd as being 6x6 posts, 2x10 rails, and with a maximum height of 3 feet, would cost approximately $4,000.00-$5,000.00 and he asked the Commission to consider something that wouldn’t be as costly or as visible. Mr. Akroyd has spoken to DEP about a
possible appeal process, and that he wonders if there is a better way of resolution.
NC reminded Mr. Akroyd that Mr. Merritt has not been compliant over the years and then asked Mr. Merritt what he would suggest that would keep Mr. Merritt out of the restricted area.
In his defense, Mr. Merritt acknowledged that he was doing the same clearing of invasive species on his lot as was being done on the Audubon property located across from his property and he had only mowed down to the brook once. Mr. Merritt promised that if the Commission would agree to allow stakes versus the guard rail he and his children would know not to go beyond the stakes. NC and TF responded that Mr. Merritt did not have permission to clear the resource areas, had been in violation by cutting down trees and also had violated an agreement to a ten foot non-disturb zone. Mr. Merritt claimed that once Mr. Akroyd had staked the property and explained to Mr. Merritt the regulations relative to resource areas, he has not been in violation.
Mr. Akroyd said that between 2007 and June 2012, after the Order of Conditions was issued, Mr. Merritt’s property remained fallow with no oversight due to personal issues and that he agreed that there was probably some unintentional latitude taken by Mr. Merritt, but Mr. Akroyd asked that the Commission agree to negotiate with the applicant on action that would be best for the applicant and the Commission. He asked that oak stakes be used in place of a guard rail.
Mr. Stinson stressed to Mr. Merritt and wanted it on record that the river front, wetlands and flood plain are resource areas and any activity in those areas requires that Mr. Merritt come before the Commission. Mr. Stinson listed two examples such as cutting down a tree or putting up a fence that required review and noted that the recent installation of a new fence is also a violation. Mr. Stinson told Mr. Merritt that the Commission wants assurance that Mr. Merritt will keep his promise to comply with the regulations.
DL said that he has no issues with the path citing that paths go through the Audubon property and the land is similar. JS said he doesn’t mind a path, but that this is much wider than a path and he is concerned that if the Commission doesn’t require a substantial barrier Mr. Merritt will continue to go into the restricted area. Mr. Merritt says that he uses the path to go to the studio to work each day.
Mr. Stinson suggested that the Commission utilize Google aerial photos to monitor any changes to the property. Hopefully, if the fence issue is solved and Mr. Merritt complies with the regulations which require that Mr. Merritt go before the Commission for any work proposed in the resource area, this will resolve the issues.
Mr. Akroyd told the Commission that he feels that Mr. Merritt now has a clear understanding of what he can and cannot do and asked the Commission to grant Mr. Merritt additional time. Mr. Akroyd stated the Commission has access to both properties for a period of years so that they have the ability to monitor compliance, and if Mr. Merritt is not in compliance, the Commission can issue an enforcement order and turn the matter over to DEP for an Administrative Consent Order with penalty.
Discussion ensued regarding an acceptable barrier of some sort other than a guard rail that would clearly indicate to Mr. Merritt the restricted areas. Among suggestions were: split rail, Mountain Laurel or other plantings or a permanent marker flush to the ground. There was also some discussion relative to reducing the length of fencing to along the BVW line at the bottom of the plan, not the river front, provided that Mr. Merritt did the job “right”. This would reduce the cost of a guard rail or split rail by approximately one half. Regarding a demarcation that would be made up of plantings, Mr. Merritt asked if the Commission would allow him to do it in two stages with part being done next spring and the remainder in the spring of 2014.
With regards to the “House Lot”, generally it was agreed to forego any barrier along the river front zone, but there should be a barrier along the BVW. A living barrier species of appropriate material possibly mountain laurel in place at some time in spring of 2013 was suggested.
MS cautioned Mr. Merritt to not do anything with the steep slope as there needs to be root structure to prevent erosion. Along the river front zone, Mr. Merritt is to leave it alone with no mowing of the path and leave the stakes in place for a visual delineation.
Mr. Stinson told the Commission that there is an existing valid Enforcement Order that can’t be appealed as the appeal period has lapsed. He told the Commission that they could decide to leave the Enforcement Order in place while Mr. Akroyd comes up with a plan or they could vote to modify the Enforcement Order. That action would be put into the minutes. If the plans submitted by Mr. Akroyd are satisfactory, the Commission could lift the Enforcement Order and then modify the Order of Conditions to reflect the required changes.
TF asked Mr. Akroyd to give the Commission a plan which resolves the issues and then the Commission can go for a site visit.
House Lot-For the sake of clarity, Mr. Akroyd reviewed with the Commission what he understood was now expected of his client regarding the “House Lot”. Mr. Merritt will continue to plant trees as originally planned, but forego any sort of barrier along the edge of the river front to the southeast corner where the BVW begins. In lieu of a barrier along the BVW, Mr. Merritt and Mr. Akroyd will submit a planting plan to the Commission for a living barrier. If approved, the Commission will specify a firm date for installation of one half of the barrier in the spring of 2013 and a firm date in the spring of 2014 for the installation of the remaining barrier. Also, relative to the newly installed non-permitted fence, Mr. Akroyd proposes to alleviate the violation. He
will measure the fence, indicate where it is with respect to the 100 year flood plain and outer riparian zone and determine clearance for wildlife. He will analyze to see if he can eliminate any of these issues by repositioning the fence. If not, he will file for the fence in its present location.
In conclusion, it was agreed that Mr. Akroyd will submit the new plans sometime in November or December of 2012. The trees will have been planted by then and the Commission could lift the Enforcement Order and the Order of Conditions could be amended by way of the minutes. Mr. Stinson agreed that this would be satisfactory provided that there are dates certain.
Studio Lot-Discussion ensured regarding this portion of the property relative to the fence barrier. NC maintained that the applicant was first going to put in a stone wall and subsequently agreed to a guard rail style fence. NC stated that he would like to see the guard rail fence go to the pines to keep people out of the wetlands. Mr. Merritt asked that the demarcation now be a split rail locust fence rather than the previous two choices. The fence would be around the area at the corner. Mr. Merritt and Mr. Akroyd argued that no one could access this area due to the dense vegetation and Mr. Akroyd questioned the need for a fence. The Commission responded that it is to keep Mr. Merritt or anyone out of this area. NC pointed out that the Commission has relented by reducing fencing
as much as three quarters on the other side and he does not understand why the applicant isn’t conceding. TF added that area was full of trees prior to Mr. Merritt doing un-permitted work there, and that a remediation plan in the Order of Conditions was never acted upon. Mr. Merritt stated that the reason the work was not done was due to personal reasons. Mr. Akroyd argued that he could not see the benefit of the fencing. Mr. Stinson responded that the Commission is worried about future incursions and asked Mr. Merritt, if he, Mr. Merritt, understood. Mr. Merritt said he understood, but that the Commission doesn’t need to be worried now.
DL made a motion to install 60 ft of split rail fence on the corner and leave it vegetated as it is now without an actual fence. This motion was not seconded.
TF made a motion to put a split rail fence from the edge of the new planting back to the edge of the tree line. JS seconded the motion. The Commission voted to approve 5-1 with DL opposed.
Mr. Stinson made it clear to the Commission that they did not have the authority to modify a previously approved Order of Conditions unless the applicant requested the change in writing. Also, he said that their Enforcement Order was to enforce the active Order of Conditions.
After some discussion, DF made a motion to rescind the previous action because the applicant had not made the request in writing. VA seconded the motion and the Commission voted to agree 6-0.
In conclusion it was agreed by all parties that Mr. Akroyd will come back with a drawing for the placement of a post and rail fence of locust. The Commission agreed to let this go until Mr. Merritt plants in the spring, noting that the deadline given in the Enforcement Order is November 15, 2012, but that cannot be achieved.
After discussion with Mr. Merritt, Mr. Akroyd and Mr. Stinson, it was decided that since the date of November 15th specified in the Enforcement Orders for the completion of the necessary actions was not realistic the meeting was continued and Mr. Akroyd was charged with the responsibility of providing, before mid-December 2012, updated drawings which would include the placement of a post and rail fence of locust and completion dates for those items for the Commission’s approval. The fence and living barrier would be planted in the spring. There was a consensus among the Commission and it was agreed that there was no need for a motion.
DL asked that leaf mulch be brought in to follow the outside line while planting trees this week. The applicant agreed.
There was discussion regarding the fence that was recently installed. It is assumed that the company who installed the fence secured a building permit in which case the building department should have required that the Commission sign off on the fence installation. Mr. Akroyd believes that the building department failed to notify the Commission.
NC clarified that Mr. Akroyd understood that the trees on the “House Lot” are to be planted in between the old driveway and the resource area.
Minutes: October 4, 2012-The minutes were tabled until the next meeting.
JS made a motion to adjourn. VA seconded the motion and the Commission voted to adjourn at 9:15 PM by a vote of 6-0.
Respectfully submitted,
Peggy Ammendola
| 
