Lenox Conservation Commission
November 7, 2013
Minutes
Town Hall
Members present: Chair Neal Carpenter, NC; Vince Ammendola, VA; Tim Flanagan, TF;
Joe Strauch, JS; Dick Ferren, DF; David Lane, DL
Absent with notification: Rose Fitzgerald Casey, RFC
Staff present: Peggy Ammendola, PA
Also present were: Scott Laugenour, Bruce Winn, Rob Hoogs, Don Hunter, Dennis Daru and Richard Kirby, Jeff Vincent, Co-Town Manager; Selectmen Channing Gibson and Ken Fowler; Building Inspector Don Fitzgerald and Scott and Maureen Jarvis.
Toole Properties, Conservation Restrictions-Attorney Lori Robbins, standing in for Attorney Philip Heller, made the presentation. She pointed out that there had been an interim conservation restriction was established in 2006, but there needed to be a grantee who would take title to the restriction. Lenox Land Trust is the Grantee for both properties and the application is finally ready for submission but the Conservation Commission must provide the municipal certification. She provided what was signed in 2006 and said that what is being submitted is identical, but they are new forms and have new dates.
In reviewing the documents provided, the Commission noted discrepancies, stating that previously it was agreed there was public access to all of the area from the side of the hotel.
Attorney Robbins will seek clarification of the intentions, where the trails are currently and the access. This matter was continued to November 21st at 7:20 pm.
Request for Determination of Applicability, June F. Hashim 36 Pittsfield Lenox Rd., Map 17 and a portion of Lot 41. The proposed project is the construction of a sewer service line through the outer portion of the buffer zone. No other work is proposed under this RDA.
Making the presentation was Rob Hoogs of Foresight Land Services.
This is a seven acre commercial lot at the north end of Brushwood Farms. Mr. Hoogs has spoken to Misty-Ann Marold of Natural Heritage and Endangered Species Program and he said she has confirmed this is not an area of concern. Keep the commission informed as the project progresses.
VA made a motion to issue a Negative 3 Determination and TF seconded the motion. The Commission voted to agree 6-0.
Note: For the next two RDAs, the site visit was attended by Attorneys Donahue and Hunter and Commissioners NC VA TF and JS.
Request for Determination of Applicability filed by Richard Moche c/o Cain Hibbard &Myers, 57 Bramble Lane, Map 1 Parcel 43. The request is to determine whether the area depicted on the plot plan and if the proposed removal of four trees located easterly of, and immediately adjacent to, the existing house is subject to the jurisdiction of the Wetlands Protection Act. There may be additional trees to remove as they too have a potential to damage the house.
Attorney Vicki Donahue of Cain, Hibbard & Myers., representing the prospective buyers of the property from Hale and Penelope Carey, presented the request. She said in addition to the tree removal the applicant would also like to remove some invasive buckthorn and trim limbs from other trees.
JS made a motion to issue a Negative 3 with the following conditions:
- The trees that are to be removed around the house are to be marked and inspected by the Commission before removal.
- There may be more than four trees which need to be removed.
- The crane used for this project will remain parked on the driveway.
- All of the tree material is to be removed from the site.
DF seconded the motion and the Commission voted to agree 6-0.
Request for Determination of Applicability, Hale H. and Penelope B. Carey 57 Bramble Lane, Map 1 Parcel 43. The request is to determine whether the area depicted on the plot plan and if the proposed relocation of the gravel driveway is subject to the jurisdiction of the Wetlands Protection Act.
Attorney Don Hunter, representing prospective sellers, presented the request.
Attorney Hunter explained that the driveway crosses a corner of a parcel which belongs to the Town of Lenox and has for 20 or so years. By law one can’t cross someone else’s property to gain access to one’s property. The prospective purchasers would like to keep the driveway where it is, but in order to do so they would have to have the Town grant them an easement. They have plans to do that, but in the event an easement is not granted, the applicants will be forced to move the driveway. Getting approval from the Commission to do that will make it possible for this property to be sold.
NC said the Commission would provide a letter supporting the granting of an easement.
Attorney Hunter described the project if the driveway has to be moved which would involve removing some sparse pines of 8 to 10 inches in diameter. They would then be ground down. Attorney Donahue said there is also an inoperable 20 foot light pole that they plan on removing as well.
Dl made a motion to issue a Negative 3 Determination and VA seconded the motion. The Commission voted to approve 6-0. 6-0 with the following conditions:
- If the driveway is to be changed siltation devices are to be put into place and inspected by the Commission before the work commences.
- The old gravel driveway is to be removed and the fill from the new driveway is to be put in its place and planted.
- Any extra gravel and tree material is to be removed from the site.
NOI, Broadway Electrical Co., Inc., Willow Creek Rd., Map 14 Parcels 2 and 3-Installation of a photovoltaic solar array within the buffer zone. Continued at the request of LEC Environmental from October 17th. On November 7, 2013, the Commission received a site visit letter and approximate location map via email from Richard Kirby.
Present were Dennis Daru of Broadway Electrical Co., Inc. and Richard Kirby, Senior Wetland Scientist of LEC Environmental Consultants, Inc.
Mr. Kirby, presenting the NOI, reviewed the aerial image with the array shown and stated that they had delineated some bordering vegetative wetlands. Some of the array is inside of the buffer zone, but portions of site grading and tree clearing is inside. He pointed out the highlighted areas for the 100 and 25 foot buffer zones. He said that he has been out with the Commission several times and that in October he again reviewed the delineation with them and the Commissioners noted that there were wetland plants outside of the delineated area. On November 6th Mr. Kirby returned to the site on and agrees, but maintains that upland plants are predominating. He took an inventory of the dominate plants with wetland status indicators and provided this and an aerial image of the
area showing the isolated pockets of wetland vegetation and provided this in his letter of November 7th to the Commission
NC stated that it appeared that the area to the right of the parking was wetland. Mr. Kirby agreed that there were some wetland plants, but his observation was there was not a wetland plant community in that area.
Mr. Kirby, when asked by JS, said that he had not taken soil samples.
TF asked if Mr. Kirby had DEP data sheets on the new areas. Mr. Kirby said that he did not.
TF asked Mr. Kirby how the Commission could confirm that the wetland vegetation was not jurisdictional as asserted if it is not flagged in the field, or when the Commission isn’t able to inspect the boundary when they have not been provided with any of the plant or soil data sheets.
Mr. Kirby stated he has provided data that he feels supports his opinion that if there are isolated pockets of wetlands, and he agrees that there is some wetland vegetation, it is not jurisdictional under the Wetlands Protection Act.
TF reminded Mr. Kirby that at the site the Commission asked him to establish observation plots, record the species on those plots, and inform the Commission as to what is dominate and come to a conclusion. TF said that the Commission is being provided with a description of the whole area and the Commission cannot determine the boundary nor can they know if it is connected or isolated without that boundary line and being able to inspect it in the field.
JS commented that it may be time for the Commission, who has asked for information 3-4 times, to enlist another consultant to verify and TF agreed.
Mr. Kirby responded that at the onset, he understood the Commission wanted a broad transect analysis where “tens, if not hundreds”, of data points were to be collected to demonstrate what was upland and what is wetland. This, he said, would cost a tremendous amount of time and money. Mr. Kirby said he thought what he has done was a reasonable compromise to give the Commission the plant species information, but added he could consult with his client if the Commission wanted him to delineate areas in the field and provide wetland and upland data plots. TF said that is exactly what the Commission has been seeking. Mr. Kirby responded that single data plot in a given pocket of wetland vegetation and a data plot in an adjacent upland that are representative of the two areas is different than a broad
transect across the entire site.
Mr. Kirby said that he could delineate these areas in the field and provide a transect for each of the three areas, but he feels it is too onerous to require the applicant to provide “tens of tens if not hundreds” of data plots for the site.
TF said that until the Commission has data, boundaries and an indication of where the plants are, they are unable to make a decision. He concluded that the Commission may agree with him that these areas are isolated and not jurisdictional, but must see the data that supports his opinion.
After a five minute recess requested by Mr. Kirby to consult with Mr. Daru, he asked for a continuation. .
Mr. Kirby stated that he understands that the Commission is requesting he delineate the isolated areas in the field and provide a transect for each isolated area, document the wetland conditions & wetland vegetation in the wetland area and the upland, non-wetland vegetation, in the area adjacent. He hopes to be able to get out to the site before the next meeting
DL made a motion to continue the hearing to November 21, 2013 and DF seconded the motion. The Commission voted to agree 5-1 with TF casting the dissenting vote.
Selectman Fowler asked if the Commission had provided to the applicants what exactly was expected of them. TF said that at each of the field visits, the applicants were told to follow the DEP manual for delineating wetlands and submit the data according to the format that is described in the manual. Selectman Fowler asked Mr. Kirby if he understood. Mr. Kirby responded that he was very familiar with the manual and that the data he has submitted thus far is in accordance with that document, but the Commission is asking for more specific DEP field data forms to document the plant community and soil forms in the wetland versus outside the wetland.
Notice of Intent, Robert Speilman. 56 East Dugway Dr., Map 17 Parcel 52/53. DEP File Number 198-0273. Proposed project is the alteration of an on-site wetland to provide more open water in the form of a 0.9 acre pond with replicated wetlands surrounding that is equal to wetlands displaced. Originally scheduled for June 20, 2013, but rescheduled to July 18, 2013 at the request of the applicant. On 8/1/2013, continued to August 15th at 7:30 pm. Continued to Sept 5, 2013. Continued to October 17, 2013. Continued to November 7, 2013. On November 7, 2013 the Commission received a letter from Rob Akroyd of Greylock Design requesting to withdraw without prejudice. Mr. Akroyd was also present and confirmed the contents of the letter.
DL made a motion to permit the applicant to withdraw without prejudice. JS seconded the motion and the Commission voted to agree 6-0.
Notice of Intent, Mitch Greenwald, Trustee for property located at Martha Lane, Map 18 Parcels 46,47,51,52,57 and 58. The proposed project is the alteration of an on-site wetland buffer zone to allow for the construction of a gravel road, utilities, swale, driveways, septic and 2 single family houses.
Present were Building Inspector Don Fitzgerald, Scott and Maureen Jarvis who own property at 9 Martha Lane.
There was a site visit on October 29th that was attended by Rob Akroyd, NC, VA, JS, TF.
Presenting the NOI was Rob Akroyd. He said this project if for the reconstruction of Chestnut Lane which had been constructed in the early 60’s prior to the adoption of subdivision control bylaws. The purpose of which is to access two lots. He has met with the Fire Chief regarding emergency vehicle access and the DPW with regards to the curb cuts and water. The road will be a private road.
The Commission had advised Mr. Akroyd of the issue of ownership of the right of way and needing written documentation from the owners. When the road was abandoned many years ago, it became the property of the abutting owners. Mr. Akroyd understands that through litigation Macalin has been granted rights of way and easement for the renovation of Chestnut Lane and access. He will provide the Commission with the Land Court Decision. The Commission advised that they will also need written permission from the landowners Mr. Akroyd will request that of Attorney Greenwald
NC said that this property is a sensitive, hard to determine wetland determination and he would like another 25 foot non-disturb zone from the wetland boundary marked with boulders so that whoever becomes a property owner will not do any work past boulders.
Mr. Akroyd stated that this NOI only speaks to the reconstruction of Chestnut lane, not further development of the two lots. TF requested that an additional plan be provided which would show only what this NOI is seeking for the reconstruction of Chestnut Lane.
TF would like for the swale to be stabilized and reconnected to the wetland. RA said the plan is to remove the existing soil and replace with organic material and develop a planting plan.
Scott Jarvis, owner of abutting property and an employee of the DPW, spoke of his concern regarding the drainage swale and the runoff from the potential development of the lots. The existing culvert pipe on East Dugway is only 18 inches and it may not be able to handle the flow rate which he feels will increase with further development. He states that there has been flooding in the past. Mr. Akroyd will address the calculations.
JS made a motion to continue the hearing to November 21st at 7:45 pm. VA seconded the motion and the Commission voted to agree 6-0.
Other Business:
EPRI, Electric Power Research Institute, 115 East New Lenox Rd., Map 34 Parcel 1. NC went to the site on October 30th to determine if the work done under the Order of Conditions was in compliance. He was satisfied and took photos of the completed project to share with the Commission who agreed to issue a Certificate of Compliance.
Ellen Plageman, 589 East St., Map 23 Parcel 3 Kevin Holden called NC regarding a tree that the homeowner wants removed. NC went to the site on November 7th. The Commission agreed this was maintenance and did not require a permit.
Jim Hurley, 61 Tucker St., Map 44 Parcel 23 NC signed off for the Building Inspector a demolition permit.
Minutes: October 17, 2013- DF made a motion to approve the minutes with minor edits. JS seconded the motion and the Commission voted to approve 6-0.
October 21, 2013- Tabled (LLPA review of drawdown joint meeting with Lee Conservation Commission)
DF made a motion to adjourn and JS seconded the motion. The Commission voted to adjourn 6-0. The meeting was adjourned at 9:30 pm.
Respectfully submitted,
Peggy Ammendola
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