Lenox Conservation Commission
Landuse Meeting Room
September 17, 2015
Minutes
Members present: Chair Neal Carpenter, (NC); Vince Ammendola, (VA); Tim Flanagan, (TF); Joe Strauch, (JS); Rose Fitzgerald Casey, (RFC); David Lane, (DL); Dick Ferren, (DF)
Staff present: Peggy Ammendola, (PA)
The meeting was called to order at 7:30 PM.
BNRC Continuing discussion regarding Municipal Certification for Undermountain Farm Conservation Restriction (Had been on July 16th and August 6th agendas.) Narain Schroeder of BNRC told the Commissioners that part of the application process is to have a Municipal Certificate form which lists the purpose of the CR, states what the public benefits are and what is being protected. This is taken to the Board of Selectmen for their approval.
There was some resistance by the Commission to sign as the CR was different than was originally proposed. Mr. Schroeder explained that he was asking the Commission to approve the CR on the 83 acres of farmland as initially sent to the Commission and it now includes two public accesses. The certificate is to show the Commonwealth that the Commission is aware and is saying that the Commission would like to see a CR and that it is in the public interest. The point is to preserve the farmland. Mr. Schroeder said that CRs are not about public access, it is about preservation. Tjasa Sprague will still have the horse farm and the CR land is private property and she needs to be able to control bikes through her horse farm. The public has the right to use the trails if they respect the property,
but she can shut it down if it is treated poorly. No building can take place on the property. BNRC is committed to putting in the trails but doesn’t have the budget to do that now and has the right to clean up the hedgerow. If a subsequent owner lets the field go to brush, BNRC has the right to keep open, but not the obligation.
The discussion turned to the 63 acre parcel which had been proposed to be purchased by the Town if approved at a Special Town Meeting scheduled for September 21, 2015, but was recently withdrawn by BNRC. The Board of Selectmen voted unanimously to agree to the withdrawal. A plan had been developed to have a Conservation Restriction on a total of 146 acres, with 83 acres to remain owned by Sprague Family Trust and the 63 acres to be purchased for $250,000.00 by the Town using Community Preservation Funds. An altered proposal had been made late in the negotiations that could not be worked out in time to present to voters at the Special Town Meeting. BNRC still has an option on this parcel and is still working toward preserving it as well. When asked by DL about the 63 acres being open for hunting, Mr.
Schroeder said that this becomes complicated. He said that BNRC properties are open for hunting, but this probably would be a wildlife sanctuary with signs prohibiting hunting.
There was discussion about the length of the effectiveness of a CR when it is between two parties, or when given to a municipality. GM will check with Town Counsel.
JS made a motion to sign the Municipal Certification. RFC seconded the motion and the Commission voted to agree 7-0.
Notice of Intent filed, Pittsfield Municipal Airport (PMA), 0 West Mountain Rd., Map 27 Parcel 24. On May 15, 2014, the Conservation Commission issued a Negative Determination subsequent to PMA filing a Request for Determination for the re-clearing of an existing easement and the replacement of the existing beacon and beacon pole which had fallen into disrepair at property located at West Mountain Rd. Subsequent construction activities have resulted in additional impact within the areas subject to the Scenic Mountain Act and the need for site restoration of construction access within and adjacent to the easement on land of Mass Audubon. An informal meeting was held on August 20, 2015.
Present were representatives of Stantec, Jim McLaughlin and Randy Christensen. Brian Spencer represented Pittsfield Municipal Airport. Becky Cushing, Director Pleasant Valley Wildlife Sanctuary, and Tom Lautzenheiser of Mass Audubon were also present.
Mr. Christensen reviewed a site plan which depicted the limit of the disturbance associated with the project, the easement and construction access road limits that were GPS-ed in detail. Since the last meeting they have defined an area of ground disturbance on a plan identified as Drawing No. 1, Yokun Seat Easement Access, by JEM dated “14.06.03”. The plan was received by the Conservation Commission on August 20, 2015.
Since the meeting of Aug. 20th, some limited progress has been made. The pole has been set up with the light affixed and the base wiring coming out of the beacon through the concrete has been installed. There is no power to the site as there are more details to be worked out. A team has been set up to continue with the restoration and the focus of the application at this point is getting a quick restoration done as soon as possible with monitoring and some invasive species control in follow up years. Mr. Christensen detailed the proposal for putting in 18 water bars for the length of the access road. The plan is to separate the entire length of the road into smaller water sheds. This area has 5 to 8 natural paths for water flow with the existing topography but Mr. Christensen
said that it is necessary to have as many sections as possible so that under rain events there can be control of the flow volumes and more importantly the velocity to prevent soil erosion. They want to take advantage of natural low spots in the road and focus on the steeper sections of slope and the bottom of steeper sections of slope so a plan has been developed that installs “bumps” referred to as water bars, five feet in width, with a small nine inch trough followed by a 9 inch mound on the back side stabilized with mulch and high grade erosion control fabric. This would be diagonal across the trail. The purpose is to try to intercept the water and dump it off into areas that have been found as good locations to get rid of the water. Mr. Christensen said that at the steep sections there will be an intercepting water bar at the top and some will have them close together. Isolating those separate water sheds he finds to be the most important
stabilization because water will be the problem. This year they want to get the mat, erosion control fabric, seed, straw mulch and machine that can form the water bars up the top and work their way out of the site and back to the easement.
Mr. Christensen said that they have potential access issues and presently the only access they have is off of Swamp Road in which the initial couple of hundred feet of that easement is wetlands. They have filed an RDA with the Richmond Conservation Commission for a matted frozen ground condition road crossing so that they can get material up to address the site and finish the electrical work. Since that time their alternate access into the site may no longer exist, which would mean that they will be forced to use the easement off of Swamp Road.
One vital part of the restoration plan is to keep people off of the site. The smallest ditches created by ATVs would channel water which would hamper and delay the stabilization process. Audubon has said that they would like for Stantec to use the trees which had been cut down for barriers, but Stantec indicated there has been resistance to trail blocking from a property owner. Construction fencing, temporarily, could be used. In early September a walk through the area revealed that there was no additional disturbance.
Mr. Christensen said that they will be looking for a seed mix that is quick growing but tolerant of dry condition as there will not be water available. The mix will have some quick growing components, sticking with native species if possible. Some shade species will be added to the basic mix as well as some that will grow past the growing season.
Mr. Christensen said that there are concerns ranging from the access problem, a detailed sequence of construction to avoid ruining their work, long term protection over the next 2 or 3 growing seasons and the need for a method of control so that people are not trampling the restorative work. The short term goals are to stabilize the site, monitor and repair, and invasive species control. He is hopeful the work can go forward as soon as possible working with both Lenox and Richmond.
Mr. Christensen said that according to a letter dated September 17th from Louison, Costello, Condon and Pfaff, LLP, who represent Audubon, there is still work to be done. This would modify the plan and that modification will be provided to the Commission.
Regarding access to the site, at the time the road was constructed they were permitted access via a private property on Swamp Road but now that landowner is no longer allowing access. PMA is working with the Richmond Town Administrator who is working with his town’s Conservation Commission “to amend a negative determination for crossing and clearing vegetation”. Once Richmond approves and the access issues are resolved, Mr. Christensen believes that it would take approximately two weeks to complete the work to provide power to the beacon through the section of Lenox.
TF asked about the GPS and the dates on the plan. The GPS survey was done in August of 2015 and it was done to show the aftermath of the unpermitted work that was done. The original plan was given to the contractor in 2014, and the up-to-date plan of two weeks ago failed to show the revised date. Mr. Christensen said that if and when they make changes based on conversations with Audubon, they will have the revised date.
RFC was incredulous that the work that was done greatly exceeded that which was permitted. It was agreed by the PMA that the work that was done had not been envisioned, but they wanted it to be known that by right the contractor could go off the easement. Mr. Spencer said that the City Solicitor said that it was her understanding that this was “a taking”. TF explained that he was discussing property rights, the relationship with the City of Pittsfield, but that this discussion was limited to Lenox and the Audubon property, that they were not addressing the right to deal with a public resource that is protected under the Lenox Scenic Mountain Act. Mr. Spencer responded that he was answering the question of how could they go so far beyond what Lenox had permitted them to do. He explained that their
work was not restricted to the easement as the easement language allowed the contractor to get up the mountain anyway they could for the purpose of the beacon, lighting it and maintaining it. TF responded that that was to the easement, but the Determination by the Conservation Commission did restrict the work that was done. NC asked if they shouldn’t have notified the abutters of the additional work that was being done. The response was that advance notice was given to abutters, but not to the extent of the work done. TF reminded the applicants that in the original RDA, there was no mention of needing an access road and the Commission was told that the work could be done within the existing power line cut. The applicants thought it could have been done, but encouraged the contractor to communicate with landowners to see if he could find alternate access.
RFC questioned who was responsible for overseeing the project and the failure to confine the work to the permitted area. Mr. Christensen and Mr. McLaughlin acknowledged that it was Stantec. NC added that the Commission wanted the disturbed area to be restored to its original condition. JS asked what was proposed for restoration next spring. Mr. Christensen responded that first they want to focus on stabilization to avoid erosion. Plantings that were mentioned were a native grass cover, raspberries, birches, i.e., species that come in quickly. JS said that the habitat that was in before the destruction included trees, ferns, herbs and sedges, a forest, and asked why this was not being proposed. Mr. Christensen said that this was not feasible due to the inability to get to the site,
the shallowness of the soil, extremes of the habitat and extreme of the moisture condition. He added that in his experience nursery stock would be a recipe for failure and that if they tried to put the grades back in the original condition this issue would be have to be revisited due to its failure. Mr. Christensen pointed out that lower down the mountain where property owners had cut trails that quick growing woody species are present. He said that the plan was to stabilize the soil, let natural succession occur and establish invasive species control. He noted that he has seen trails on the BNRC property created only from hikers and mountain bikes that are 8 feet deep and 20 feet wide. Mr. Christensen wants to get all
parties together to avoid this happening to this site which benefits from the fact that there are switch backs and not straight to the grade and have the proposed diversions designed to get the water off.
Mr. Christensen said that they have tried to identify invasive shrubs and are concerned about the rose and two species of buckthorn. GM said that she has hiked the area and with bare soil it will be a long time before it will be restored to its original state. Hardy kiwi likes the sun and already exists on Audubon and Town conservation property and she feels this land is vulnerable to this invasive species and buckthorn which are known to take over massive areas.
Mr. Christensen said that there are open trail networks that he walked to become familiar with the invasive plants in the area and did not see some of the highly problematic species, but that selective herbicides could be used for control.
Mr. McLaughlin said that the control element program described by Mr. Christensen should be more rigorous, and there are some species, e.g. bittersweet that are not addressed. In terms of blocking the trails, he feels strongly that the trees and rocks that were shoved off the path as it was being constructed should be replaced as a basic element to habitat restoration. This, he said, prevents further vehicular access and makes the terrain heterogeneous which will provide niches for plants to colonize as time goes by. Mr. Christensen agreed. Mr. McLaughlin said that he agrees with JS’s point in promoting native, but he is not opposed to Mr. Christensen’s proposal for immediate stabilization with a menu of grasses to provide a quick cover before fall. He feels that there is
“nothing stopping us from trying to go back and get more appropriate landscaping done”.
Bruce Winn said that fixing the problem created is an immediate concern, but he was especially concerned about the following:
- The date, 2014, shown on the plan-He encouraged the Commission to look at the bidding documents to establish that the work that was going out to bid was what the Commission had approved.
- Stamp of an engineer on the plans-He doesn’t understand how the engineer did not know what was going on.
- Consequences for working outside of a permit-He feels there should be consequences so that people will think twice before doing work that was not permitted. He feels that had the Commission been approached regarding this work, the Commission would have clearly stated their restrictions and there would be no need for remedies. He feels that the area should be regraded, replanted and restored to the way it was originally.
RFC commented that it seemed that it was not so difficult to reach the site and do the destruction therefore she feels it shouldn’t be so difficult to get back to the site to restore it. Mr. Spencer responded that they used the trail system that was there, but obviously not to the same extent it became. He said that they were not trying to hide anything as far as what machinery or how they were going to get to the site, but thought it may not have been explained fully at the beginning. He said the site was/is not easy to access even by walking. TF told the applicants that their easement language may actually provide that opportunity for access.
VA said that the first phase is to immediately act to keep the area from washing away this winter and that the second phase comes in the spring with the restoration. He feels that the second phase will not be a one or two year operation and they may not get the site restored to exactly the way it was, but they can re-contour a lot of the area to get it close to where it was. If the natural environment doesn’t take over, they should find species that are available and transplant from the local area or do what is necessary to complete restoration. VA pointed out that the Commission gave a permit that allowed access on a 20 foot wide right of way. The Commission had never been told that the applicants had an easement that gave them the ability to follow almost any route necessary to get up to the
top. In closing VA told the proponents that they need to at least make an effort to do what they need to do immediately to prevent the site from going critical but after that is accomplished the Commission will be looking to a long term solution to restore the site.
NC inquired of the PMA if they had filed with the EPA the required Stormwater Management Plan. Mr. McLaughlin said that it had been filed and they have received a tracking number. TF reminded him that it had been agreed at the last meeting that the process of stormwater review would be combined with this project, the EPA and the Towns of Lenox and Richmond and that thus far the Commission has not seen a stormwater management plan. Because of the amount of land, there is federal jurisdiction, but there is local jurisdiction as well. Without this information, the application remains incomplete so the Commission can't review the water part of the plan if they don't know anything about the hydrology. Mr. McLaughlin said that information would be forthcoming. Mr. Christensen said that
the only topo they have of the entire mountain is USGS and confirmed with TF that TF knows about the typical stormwater calculations and what it entails. TF responded that the map the Commission has seen has 25 foot contours. Mr. Christensen added that to do storm water calculations TF would know what type of topo you need. TF said he felt that the entire thing could be avoided if there was agreement to restore the original contour of the land and he added that there is a good 30 years’ worth of scientific research on road restoration involving land like this and the conclusion has been that roads remain problematic, they remain problematic for drainage ways. The proposal is creating new stormwater conveyances along every segment of the road and discharge points at every water bar which is exactly the opposite of the intent described in the language of the SMA. TF said that we know from the biologists that the botanical restoration doesn't go well with a road cut that is
angled back into the slope as this one is. It is known that the mycorrhizal associations don't work well with the compacted soil arrangement. The standard restoration methodology is to restore the original grade to use the local organic material as much as possible which would mean in this case the cut trees and the fill sloped soils should be raked back and the original slope restored. There would be no need for any conveyances whatsoever. Employing this method you stand the best possibility of minimizing any new erosion and maximizing the success of restoring the local flora. TF said that he doesn’t see any barrier to that and doesn’t see any reason that the Commission should accept anything less than a full restoration on this site.
Mr. Christensen responded that he did not understand how a machine could fit in the slope where the soil is piled and be able to restore the contours as suggested by TF. TF responded that that same slope exists on the fill side of the road as it had been cut on one side and filled on the other, the over steepened slope is there. It was piled over, cut and filled, said TF. Mr. Christensen argued that it wasn't like that along on the entire grade and it wasn't a standard cut and fill. Mr. Christensen agreed that in a lot of sections it was and they moved a lot down to the staging area at the bottom of the steep sections. He also said that this involved a machine making multiple trips to put soil back and somehow compacting it in place and somehow kept that compaction and those contours thru
several growing seasons. TF stated that restoring the cross-grade is the standard methodology for road restoration. Mr. Christensen argued that that could not be done on slopes like this.
TF suggested that PMA look at some of the federal management guidelines for this exact problem. Mr. Christensen said that even though a road dozer operator crawled up and slid down several times he eventually made it up to the site, but the issue now is safety, feasibility, and practicality.
GM interjected that PMA should work with the Commission who has jurisdiction over the very strict Scenic Mountain Act. Mr. Christensen said that he has worked with these soils enough and that “nodding yes to this is signing our own failure warrant”. Mr. Spencer commented that “This is a recipe for disaster.” TF queried Mr. Spencer as to whether he had done road restoration, worked on slopes like those at this site and if he had attempted the federal methodology for road restoration. Mr. Spencer answered in the affirmative to the three questions. GM said that if the federal methodology would not work, PMA would need to provide proof or evidence that it would not work. VA commented that he had a hard problem understanding how a situation that has been created could not be fixed.
DL feels that the biggest problem is that they are running against a clock, but the critical issue is stabilization now and deciding what the goals will be. Simply putting in the water bars may be only a temporary goal until something else can be done in the spring. Mr. Christensen said that much of the soil is not gradable, but rather chunky. TF acknowledged that, but said that it is the same as the surrounding topography. TF said that the Commission is not looking for a smooth sloping surface. Instead they are looking for a pocked, rough surface which mirrors the surrounding topography. This is the best way to get small quantities of water settled and infiltrated instead of directing it down the slope into concentrated run off points. Mr. Christensen said that from the beginning one of his objectives was to limit the number of heavy machine trips going over the road way again to avoid soil compaction which
prohibits plant growth.
Mr. Christensen envisions restoring the slopes from the top where the cut is exactly, and where the fill was. That restoration would take minute scratching of the soil surface under the fill section that they aren’t going to disturb, sections that were just dumped on that were excavated and try to recover soil off surfaces that are stable under the fill sections. He described the area as having very little soil, but boulders and rocks. TF responded that Mr. Christensen is visualizing that the restoration should result in fine grading.
TF addressed the concern of the multiple machine trips back and forth. He explained that the normal process is to first barricade, stop all unauthorized access, re-contour the land, and then do ripping to assure that the road bed doesn’t become so compacted. This, he said, will give a better chance of slope stability. He added that a standard needs to be defined and the Commission is looking for a cross grade at all points that will match the original grade as closely as possible. This is not the situation where the road bed is tilted back toward an uphill slope. The Commission doesn’t want inboard ditches. Mr. Christensen worried about the material they have to work with.
NC asked the Commission if they agreed with Mr. Christensen’s plan for stabilization, at least as a temporary measure. TF said that he wasn’t sure that there were enough water bars for stability as the 25 foot contours are huge intervals, but he couldn’t comment on the specific locations. Mr. Christensen said that they can put in more without much difficulty. Fabric to be used will be eventually biodegradable, but long term.
Mr. McLaughlin said that he understood that the Commission was leaning towards having the contours restored to the previous condition. They will now go back to the contractor to discuss to see how fragile and what he can do with the hope that he may be able to do some of this fall. He said that he understands the frustration with this and that he wants to do what can be done to restore. The highest priority is to finish the poles and get power to the beacon. He said that nothing regarding restoration could be done until the beacon is operational. NC said that the Commission needs more information.
Mr. Christensen suggested that TF meet with him at the site to look at TF’s ideas and discuss. TF responded that he would be happy to continue the discussion, share thoughts and the guidelines that he knows to exist on this type of a project, but he didn’t want to be in the position of designing the project. He said that his job as a Commissioner is to evaluate with the other Commissioners the work that is submitted. It was agreed that instead of meeting that TF would send information he had to Mr. Christensen.
Mr. Spencer, referring to the letter of September 17th from Louison, Costello, Condon and Pfaff, LLP, who represent Mass Audubon, noted that a major difference in the letter and discussion with Mass Audubon was the trail block. PMA agreed with leaving contours as they are now and reseeding and restoring. There is a conflict with the other landowners. PMA was hoping to have access and they were trying to appease both land owners. The Commissioners agree with the trail blocking, but don’t think the fence will do any good. Mr. Spencer believes that the tree blocks will be easily removed. Boulders are proposed as well. The issue, he said, is with ATV use, and unfortunately the PMA fell in the middle. They want to restore the site, but there is a land dispute.
Ms. Cushing said that Pleasant Valley wants the trees put back to block access. She wants to see a long term commitment by the responsible parties to make sure the site is restored with benchmarks stipulating certain percentages of coverage of woody debris, a percentage of coverage of shrubs, trees etc. Additionally she would like long term monitoring as this open access to Pleasant Valley’s property makes them vulnerable to ATVs, mountain bikers and hikers. She stated that they don’t want to bear the brunt of extra staff time and resources to now have to protect their property. She would like the responsible parties to agree to her request.
TF asked Ms. Cushing that if a restoration were done wouldn’t her concern be resolved if it looked like the rest of the habitat near the site and if the best scenario would be no trail. She agreed that it would, but would think that it would take years. TF said that in doing a simple road bed restoration typically the monitoring goes out for 6 to 10 years and that by that point there are metrics that are used e.g., how high a woody species is when they reach a certain level. This would indicate that succession is under way, but often adjustments are needed for the first couple of years so frequent monitoring is important until one is convinced the stability is happening.
Mr. Spencer wanted to point out that the orange line on the plan, a 4 wheeler trail, was the trail the PMA followed. He acknowledged that they disturbed the earth of that trail more than was anticipated, but it was an existing trail which had not been blocked before, and didn’t feel that it was a responsibility of PMA to police offenders. He said that asking PMA to agree to long term monitoring was not feasible.
TF said that as far as the Commission is concerned it would be necessary to block four wheelers for the restoration to succeed, and that which was damaged is to be restored by PMA. TF said that if restoration was successful long term monitoring would not be an issue. Ms. Cushing clarified with Mr. Spencer that she was asking to keep the ATVs and mountain bikes off of the restoration and that when she said “long term”, she was referring to long term restoration.
GM suggested that the Commission request updates on this project. TF agreed that this would be a condition.
Mr. Christensen said that he would be pursuing both the log mat road through the Richmond Conservation Commission and the basic restoration. He will also continue to have conversations with Mass Audubon.
Mr. Lautzenheiser wanted to acknowledge the spirit of cooperation and said that Mass Audubon has successfully been working over the last several years with the City of Pittsfield Airport Commission and Mr. Christensen and other representatives from Stantec on projects. He stated that he didn’t want to jeopardize the good will and cooperation with a lot of disagreements over this unfortunate event and hoped that all could proceed with a spirit of cooperation and hold an appropriate high standard to the restoration.
DF made a motion to continue to October 1, 2015 at 8:00 pm. RFC seconded the motion and the Commission agreed 7-0.
Site Visit:
September 25, 2015 after 2:00 PM
D’Ambrosio, 37 Laurel Lake Rd., Map 1 Parcel 9
Macalin Realty Trust, Martha Lane, Map 18, Parcels 46, 47,51, 52, 57, 58
Approve Minutes-September 3, 2015 JS made a motion to approve the minutes and RFC seconded the motion. The Commission voted to approve 7-0.
RFC made a motion to adjourn. JS seconded the motion and the meeting was adjourned at 9:50 pm.
Respectfully submitted,
Peggy Ammendola
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