Lenox Conservation Commission
Landuse Meeting Room
October 1, 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: Gwen Miller, Land Use Director/Town Planner, (GM); Building Commissioner Don Fitzgerald (DF); Peggy Ammendola, (PA)
The meeting was called to order at 7:30 PM.
Request for Determination of Applicability, Pam and Peter D’Ambrosio, 37 Laurel Lake Rd., Map 1 Parcel 9. Removal and reconstruction of stone terrace, deck, stair, and piers.
There was a site visit on September 25th and was attended by the following: NC, VA, TF, JS, Pam and Peter D’Ambrosio, Wendy Brown and John Dahrouge, the contractor.
Presenting the application was Wendy Brown, who was filling in for Dana Bixby of Dana Bixby Architecture, and Peter D’Ambrosio. Ms. Brown reviewed the site plan and detailed the project. The machine that will be used is a small “Bob Cat”. Mr. D’Ambrosio said that the project is 89 feet from the wetlands and that the soil will be taken off site. A silt fence will be installed.
RFC made a motion to issue a Negative III. JS seconded the motion and the Commission voted to agree 7-0.
Notice of Intent, Mitch Greenwald, Trustee, Martha Lane, Map 18 Parcels 46, 47,51,52,57 and 58. 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. The altered BVW will be replaced with the recreation of a BVW that connects the two onsite BVWs. There was a Site Visit: September 25, 2015 and attended by Rob Akroyd, TF, JS, VA and NC.
Making the presentation was Rob Akroyd of Greylock Design Associates who represents Carol Kaufman of Macalin Realty Trust. Mr. Akroyd stated that he had presented a Notice of Intent for this property two years ago but withdrew without prejudice to regroup and settle a dispute raised by abutters and neighbors. A copy of the Agreement for Judgment, dated December 26, 2012, was submitted. Chestnut Lane is a “closed road” that is located between Martha and Sullivan and the agreement allows Macalin Realty Trust and Richard and Cynthia Arndt, who are not a part of this application, the right to reconstruct Chestnut Lane. The purpose of the reconstruction is to gain access to potentially two building sites according to the subdivision plan that the Land Court document referred to as the “Charlie Liston
plan”. Mr. Akroyd said that there were six lots subdivided prior to adoption to the zoning bylaws and that these lots have been combined into two lots with four being on the north side of Chestnut Lane and two on the south side. The plan is to bring under- ground utilities to these two building sites, provide drainage for the road and then provide building envelopes to accommodate two single family homes with the requisite amenities. The drawing presented depicted the driveways, a foot print of a proposed house, and schematics for a subsurface sewage disposal plant. Mr. Akroyd said that the wetlands had been delineated about 3 years ago and the Commission visited the sites. Adjustments have been made to the boundaries and the plans presented at this hearing represent those adjustments. Mr. Akroyd considers that these boundaries are still valid. He also stated that items raised at previous meetings have been addressed on the plans.
Mr. Akroyd and Mark Stinson of Mass DEP have been in discussion and disagree on whether or not this is a subdivision. Mr. Stinson believes that it is, and Mr. Akroyd does not as the NOI is asking to upgrade an existing way. A filing fee for an NOI is based on the project, and a File Number cannot be assigned until the fee is paid. Mr. Stinson agreed that the Commission would decide if this would be considered to be access to a single family home or if it would be a subdivision. Once that is determined, the fee could be determined. Once the filing fee is submitted, Mr. Stinson would issue the File Number.
NC pointed out that the legal notice in the Berkshire Eagle was the same as the notice Mr. Akroyd mailed to the abutters, but that notice does not provide the fact that work will be done in the BVW or where the replication will be located. The NOI will be revised. Also, NC said, in the NOI of two years ago, the project was just for a roadway, but this NOI is for a roadway with two houses, so he feels that Mr. Stinson would be right in the fact that a higher fee would prevail.
TF said that he was not clear on the ownerships of the different lots and that relates to the subdivision question. Mr. Akroyd said that the Plaintiffs, Jarvis and Maggio, were contesting the rights of Macalin and Arndt to “reconstruct”. The Land Court ruled in favor of Macalin and Arndt permitting them to “reconstruct” to gain access to their lots provided the Commission approves. TF said that didn’t speak to the ownership question; the access rights and ownership are two different things and that Mr. Akroyd has explained that access rights, easements, do exist, but TF was asking who owned each of the lots. TF said that the ownership is relevant for many reasons, including the determination of if it is a subdivision or if it is not and if the lots were being combined.
Mr. Akroyd said that the driveway will be owned by a dominant partner, Macalin Realty Trust and they will be responsible for the maintenance. TF asked if that was the name on the deed and Mr. Akroyd said that he didn’t know.
Mr. Fitzgerald described Chestnut as a “paper” street. He could not comment on the ownership of it. It would have to be recreated or repaired to make it a private or public way, not a driveway, and each lot would have to have 150’ of frontage on Chestnut to be buildable. The north side would have 150 feet, but the other would not. NC pointed out that the lot that is on the north side is also getting too close to the wetland and there needs to be 25-30 feet of non-disturb zone and boulders would have to be put in as had been the case with the first NOI filed two years ago. Mr. Akroyd acknowledged that they may be dealing with one lot, the northernmost one rather than two lots.
TF said that he was very concerned about acting on this application when the owners cannot be identified and it isn’t known with any surety that all parties have been properly notified so that they could have a chance to be present at the hearing. He said that the Commission needed the owners’ permission and suggested that an attorney be brought in on how the ownership should be dealt with. A file number from DEP is also necessary before the Commission can consider the application.
Mr. Akroyd said that he felt it would be best to modify the submission to focus on the northerly lot which meets the frontage requirement. The appropriate filing fee with be submitted and once DEP receives, the Commission will receive the File Number. He suggested that the hearing be continued to the next meeting. At that time he will either have the attorney for the project attend or have him submit something in writing.
Mr. Fitzgerald agreed that a lawyer’s input would be important and suggested that Town Counsel should also be consulted because an easement or a right of way is not necessarily a public or private way that you can have frontage on. There are some issues on how to establish frontage and length of frontage impacts the Commission and until there is some kind of legal determination as to if it is a right of way, easement, or private way the Commission cannot go further.
Mr. Akroyd said that once he revises the NOI, he will submit to the Commission copies in advance of the next meeting.
VA made a motion to continue the hearing to October 15, 2015 at 7:45 PM. DL Seconded the motion and the Commission voted to agree 7-0.
Notice of Intent SMA, 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. Recent 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. Informal on August 20, 2015 and the first hearing was on September 17, 2015.
Presenting the update was Randy Christensen of Stantec. Becky Cushing of Pleasant Valley Sanctuary, Mass Audubon, was also present.
Mr. Christensen told of the efforts to get permission from Richmond to put a timber mat road across the wetlands to access the site to finish the project and begin restoration. Because the ground was not frozen, Richmond would not allow them to use that method under the existing SMA Determination of Applicability and required a new filing. Being that time is of the essence, Mr. Christensen approached the City Solicitor of Pittsfield who entered into discussion with Richmond and it is believed that they will be able to commence with the installation of a timber mat road laying 4’ x16’ sections on grade across the wetland and providing access to the upper portion of their easement. Mr. Christensen said that he has informed the contractor and the mats can be ordered and he expects they
can be installed the week of October 12th. Once access is achieved, it will take approximately 2-3 days to get the poles and conduit in and the beacon working. Machinery used for the site will be low ground pressure equipment, three yard dumps used for salt marsh work and a similar excavator. The operators have told Mr. Christensen that they believe they can get a lot more material into the road than originally planned. The number of water bars shown on the plan would be the minimum number. Between the water bars there would be boulders and significant tree debris from the original construction would be put in place to use as obstructions in the road between the water bars. Any place where there is a pitch in the road back to a channelized flow against the existing berm they would take any soil that can be recovered safely without damaging anything underneath. This would then be packed in against the slope. Some tree cutting will have
to be done for additional pieces 15-20 feet long. More blockages of trails would be provided by cutting up some of the sections and using boulders strategically placed to interrupt flow on the trail.
Mr. Christensen had selected a seed mix, but both Richmond and Audubon had some issues. He will consult with Tom Lautzenheiser of Audubon about the mix, in which he said they would need about 500 pounds of seed. At this time the mix includes native and naturalized collected seed. TF said that he was concerned about the seed mix, but understands that under federal rules, if a site is opened for 14 days, it is required that it be stabilized, so they may be obligated to do that quickly even though the Commission may not like the choice of seed. He cautions that if there are invasive species, there would be more work.
Richmond stated that they would keep their NOI open during and beyond the restoration process. The consensus of the Commission was as long as progress was being made, they would also keep the NOI open. TF said that if the hearing process was closed, this matter would have to be treated as a violation. He encouraged continued discussions between all parties, including Richmond and potentially the EPA. TF also reminded Mr. Christensen that they still had to have the stormwater management discussion.
Mr. Fitzgerald stated that the beacon structure had been built without a permit. He now has an application for construction of the tower, and asked the Commission if they would agree to sign off. The Commission agreed, but asked that if he had to mandate some change in the structure to let the Commission know.
Bruce Winn asked about an alternate access to avoid going thru a wetland. It was explained that there are no other alternatives. Originally the contractor negotiated with a property owner for access, which worked well, but access has since been prohibited. Mr. Winn asked if this access, or another access, could be pursued while doing the initial stabilization. Mr. Christensen responded that there is no other access and to try to regain the original access would be a legal issue that could take years.
Mr. Christensen said that he would give updates and also would work with Mass Audubon regarding benchmarks for restoration.
JS made a motion to continue to October 15, 2015 at 8:00 pm. DL seconded the motion and the Commission voted to agree 7-0.
Dmitriy Shoutov, 21 Evergreen Trail-Mr. Shoutov dropped in to the meeting to introduce himself. On September 30th he delivered a 32 page document he entitled: “Lenox Woods at Kennedy Park condo development environmental problems, Lenox, MA, 01240” that he addressed to Neal Carpenter and Building Commissioner Don Fitzgerald. PA made a copy of this document for the Building Commissioner and the seven members of the Commission. Mr. Fitzgerald had a chance to briefly review on the day of delivery; however the Commissioners received their copy at the meeting and did not have a chance to review. Mr. Shoutov invited the Commissioners to visit the site so that he could point out his concerns. He said that he has reviewed the files for this property from 2004 to the present. He
stated that he has written 100 letters to David Ward, the developer, regarding his concerns but nothing has been remedied. Mr. Fitzgerald said that it appears that many of Mr. Shoutov’s concerns relate to zoning, and as the Zoning Enforcement Officer, he will look into the Special Permit that was approved. He noted that the project is not completed, and some items may be left for the conclusion. Mr. Shoutov was told that for issues related to the wetlands, the Commission would examine the Order of Conditions. A Certificate of Compliance has not been issued for the project. The Commission will review Mr. Shoutov’s submission and be in touch with him.
Approve Minutes-September 17, 2015-DL made a motion to table the minutes and TF seconded the motion. The Commission voted to agree 7-0.
Certificate of Compliance (CoC)-4 Stone Ledge Road (Sawmill Realty)- NC advised that the property owner is selling this property and needs the CoC. Everything required in the Order of Conditions has been done, but the Conservation Restriction has not been completed. Because of that only a partial certificate can be issued. The Commission signed the CoC and NC will deliver.
Mark Alimansky, 65 Bramble Lane, called NC to ask if he could cut down to ground level or grind a willow stump on his property. NC went to site and gave approval as long as he did not dig or fill.
RFC made a motion to adjourn and VA seconded the motion. The Commission voted 7-0 to adjourn at 9:20 PM.
Respectfully submitted,
Peggy Ammendola
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