Lenox Conservation Commission
Landuse Meeting Room
November 5, 2015
Minutes
Members present: Chair Neal Carpenter, (NC); Vince Ammendola, (VA); Tim Flanagan, (TF); Joe Strauch, (JS); David Lane, (DL); Dick Ferren, (DF); Rose Fitzgerald Casey, (RFC)
Staff present: Gwen Miller, Land Use Director/Town Planner, (GM); Don Fitzgerald, Building Commissioner; Peggy Ammendola, Land Use Clerk (PA)
Also present were Pat Seckler and Ron Veillette of the Richmond Conservation Commission and Clarence Fanto of the Berkshire Eagle.
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. Continued from October 1st to October 15th for further information. On October 15th, the Commission received an email from Rob Akroyd of Greylock Design Associates requesting that this hearing be continued to November 5, 2015 to adequately respond to some of the legal issues raised by the Commission. On November 4th, Mr. Akroyd again asked via email
for a continuance until November 19th. He said that Mitch Greenwald has been in contact with Town Counsel Joel Bard. Attorney Greenwald will be sending a letter to Attorney Bard “early in the week” of November 2nd for Attorney Bard’s response regarding the Town’s legal position on the subject property.
DL made a motion to continue to November 19th at 7:30 PM. JS seconded the motion and the Commission voted to agree 7-0.
Dmitriy Shoutov, 21 Evergreen Trail- Follow up from site visit of October 22, 2015 attended by: NC, TF, DL, VA, JS of the Commission; Natalia Shoutov; Bruce and Jane Winn of BEAT; Matt and David Ward of LD Builders. (The site visit was arranged by the Commission as a result of complaints of Mr. Shoutov who had delivered to the Commission prior to their October 1, 2015 meeting, a 32 page document he entitled: “Lenox Woods at Kennedy Park condo development environmental problems, Lenox, MA, 01240”. A copy was also given to the Building Commissioner, Don Fitzgerald. Although not on the Commission’s agenda, Mr. Shoutov attended the Commission’s October 1st meeting to ask the Commission to visit the site. Copies of Mr. Shoutov’s document were provided to the
Commissioners for their review. At the October 15th meeting the Commission set up a site visit for October 22nd.)
At the site visit of October 22nd, The Commission noted a few items that were of minor concern, but observed no erosion into the wetlands at all. NC took that information and created a report that he reviewed with the Commission. The following items noted were:
- The drainage behind “Building 12”, which is the medical building in the back, was discussed. The Commissioners did find some construction debris over the bank, but not in the wetlands. It was requested of the Wards that this be removed.
- At the north end by the Kennedy Park trailhead, there was a small drainage washout that could have been going into the wetland at some point. The Commission noted at the site visit that it didn’t appear to be serious, but recommended to the Wards to improve by putting stone/rip rap type to fill the gully to slow down the water flow.
- There were two other smaller washouts along the back bank, coming off the parking lot and roof gutter down spout. These were not regarded to be serious either, but the Commission requested that they also be filled with stone to stabilize. No erosion into the wetlands was noted.
- Over the same back bank, the Commission found that there was some old construction debris; an old silt fence was on the ground as well as some black top. The Commission requested that this be removed.
- There was a pile of soil that remained from where a cellar hole had been dug at the south end of the medical building (#12). It has silt fence protection, but the Commission asked the Wards to back it up with hay bales in case of a hard rain. NC noted that this has since been rectified.
- The area around the groundwater infiltration chambers has been mowed at the request of the Commission. This area should continue to be mowed, and also be kept free of brush and trees. The Wards will bring in equipment to remove this vegetation.
- The driveway at Routes 7&20 which is the delivery access at the rear of the restaurant (Jae’s Asian Bistro) needs some work to stabilize the sides of the blacktop to keep the gravel from eroding. Some of the light gravel and silt has been washing down into their stormwater drains. The Commission had recommended that large stones be put in place at the end to keep the cars off of that area. NC said that was completed today. While NC was there today to review the work that had been done he asked the Wards to put up some “no parking” signs along the grassed area which is a part of the wet meadow, a protected area. The stones have already been put in the gullies and the banks have been cleaned out. NC stated that there are a couple of pieces of silt fence and black top
curbing in there, but the Wards have said that this will be removed.
NC concluded that the Wards have thus far completed 90% of what the Commission had requested of them at the site visit and have assured NC that they will fully comply with the Commission’s request.
TF made a motion that NC’s report be entered into the minutes as read. VA seconded the motion and the Commission voted to agree 7-0.
A voice mail from David Foulis of MassDEP had been left for NC at the Land Use Office. Mr. Foulis said that DEP had received an anonymous complaint about this property and Mr. Foulis said that he understood that the Commission had recently conducted a site visit. He requested that NC return the call which he did, but Mr. Foulis was unavailable. NC left a detailed message regarding the result of the site visit as well as his telephone number. Mr. Foulis has not returned NC’s call.
Certificate of Compliance, 107 Yokun LLC, aka Ethan Berg, 101 Yokun, Map 12 Parcel 2 (MassDEP File # 198-0283 approved May 21, 2015) On November 4th, there was a site visit that was attended by Mike Kulig and Ben ? of Berkshire Engineering; Michael Sucoff, Construction Manager; and Commissioners NC, TF, VA and JS; DF and DL went on their own. DF made a motion to issue the Certificate and RFC seconded the motion. The Commission voted to approve 7-0.
8:00 PM Notice of Intent/Scenic Mountain Act, Pittsfield Municipal Airport, (PMA) 0 West Mountain Rd., Map 27 Parcel 24. On May 15, 2014, the Conservation Commission issued a Negative Determination/SMA 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. Informal on August 20, 2015 and the first hearing was held on September 17, 2015. Update on October 1st
and continued for another update on October 15th. No one was present, nor was Commission contacted for the Oct. 15 meeting. Continued to November 5, 2015.
Present was Randy Christensen of Stantec; Christopher Pedersen of Pittsfield Municipal Airport; Joe Cardillo, property owner in Richmond; George Wislocki; and Doug Bruce of Berkshire Natural Resources Council; Tom Lautzenheiser of Mass Audubon.
Mr. Christensen apologized for failing to appear at the October 15th hearing. He attributed his absence to losing track of time.
Mr. Christensen gave a detailed review of what work has been completed in the interim to get the electrical work done and having it lit. A change in the project was made to minimize additional clearing and ground disturbance with the project mainly the removal of overhead section of the poles from the easement and going with conduit that will be placed both under (PVC) and over ground (steel). The contractor returned back to work the week of October 26th and within that week completed specified work as indicated on the status update plan he presented. (Smaller, 11X17 versions were given to the Commission.) The three wood poles are in place which will bring the overhead section thru the wetland area to connect at Swamp Road. This has not been connected to the Eversource pole at Swamp Road
due to the fact that there are still inspections and approvals to be granted by authorities in Richmond and Lenox. The last six feet of the cable is encased in concrete. Mr. Fitzgerald has been to the site to inspect the foundation and the beacon structure. The conduit is being secured in the soil section with screw anchors and at the rock section pin anchors are being used. A follow up inspection by the Lenox Electrical Inspector is expected next week provided that the anchors are all in place. The underground inspection by the Richmond Electrical Inspector was done last week. Once the approvals have been secured, Stantec will contact Eversource for connection, the beacon will be lit and then the focus can be returned to the restoration plan.
Erosion control barriers, staked fiber logs, have been installed since last week at 21 locations along the access road. They are 20 to 25 foot sections and a flap the width of an ATV has been left loose in the event the electrical inspector needs access. Following successful approval the flaps will be secured.
Stantec has been in discussion with Audubon scientists about moving dirt and seeding, and agree that the earliest they could start would be late in May, but it would more than likely the first of June. The soils will be wet from the winter and it is necessary that they can dry out enough to be able to get the materials needed for restoration up to the site. Some hand work could be done before that.
Mr. Christensen said that they are continuing to work with land owners in securing access. In the meantime they want to negotiate restoration terms with landowners. He directed the Commissioner’s attention to his “Status Update Plan” and reviewed the 3 tier levels of restoration based on slope conditions. TF asked if this would include re-contouring, to which Mr. Christensen agreed, but said that the term he uses is “substantial replacement of soils” and his focus is on drainage. Mr. Christensen explained his logic behind his plan and discussed the mechanisms on how this could be accomplished. He also put forth several ideas about the length of time necessary for assuring that reforestation and repopulation was accomplished correctly. He discussed types of plants that he would
suggest (mostly indigenous), the sources for these plants and the optimum time for planting. He reiterated the fact that this is a plan in progress and nothing could be finalized until agreement was reached with the landowners. When all are in agreement, Stantec will submit the plan to the Commission for a final tweaking and approval. Mr. Christensen said the draft language of how the tier would be addressed is on this plan but it is also in the narrative. He stated that he replaced the section 2.3 of their original Scenic Mountain Act application with new wording, so it is the same section, but replaced in the booklet given to the Commission tonight which reflects the changes that have taken place on the project.
Mr. Christensen said that something else that is significant that is of concern to the major landowner would be monitoring and a measure of success. He said that they are trying to measure soil stability, geomorphology of the trail section and vegetative community progress. He has identified 13 monitoring plots, one for each section going down the slope and selected indices prepared by the Department of the Interior for trail maintenance which includes information for measuring trail degradation and success of restoration. Further information and protocol is included in the packet. He proposes vegetation monitoring twice a year, late spring and in the fall just before leaf fall. Additionally, if there is a major gully wash, they would go up to inspect.
TF asked what Mr. Christensen would use as a performance measure, i.e., “How do you know when you are done?” Mr. Christensen said that because they don’t have a final plan, he cannot say. He originally proposed 3-5 years, but has heard 15-20 years. TF said that from what Mr. Christensen was saying, he understands that Mr. Christensen is anticipating successional changes over the first couple of years and asked if Mr. Christensen had considered extending the monitoring period with extended intervals of monitoring, i.e. monitoring frequently the first few years then doing spot checks at 5, 10, 15 years out to see if they are approaching the existing community which obviously is the goal. Mr. Christensen responded that he thinks that in ten years one would know. He added that
with the diversions that they have in place, he has a level of confidence to get through to next May when they can commence with the restoration. He noted that with the recent heavy downpours, there hasn’t been any gully or road erosion. They will continue with the stormwater inspections as mandated by EPA. TF asked that copies of those reports be provided to the Commission. Mr. Christensen said that he would send to GM so that she could distribute to the Commissioners.
VA inquired as to when the beacon would be lit. Mr. Christensen said that it is hoped that this will be by the end of next week, but can’t be sure at this point as they are waiting now for the inspections. Mr. Christensen said that he would keep GM informed.
TF asked Mr. Christensen if he had observed any unauthorized vehicle use. Mr. Christensen responded that they have been using ATV’s for work and to get inspectors and materials to site. They have observed a lot of wildlife; found a set of mountain bike tracks, and some footprints, but thus far no indication of other use. Mr. Christensen confirmed that with the absence of unauthorized vehicle use, they do not expect rutting from machines running up and down the site. He said that the fiber logs are compressible, but return to form.
The maintenance factor of the beacon is a part of the negotiations with all parties, and Mr. Christensen stated that this is “a fluid situation with a lot of participants”. A full-fledged road is not needed for maintenance, but access is necessary, and in an emergency situation for maintenance they would access with a vehicle, and not walk it. Further, he said, a 20 foot easement is not enough to protect the overhead wires. He said that underground is a better solution where the conduit is down 26-28 inches and it represents less maintenance. In regards to access, via Swamp Road, it is shorter, but there are some sections that are vertical, with some slopes exceeding 40%.
TF asked if the access road is covered by the language of the easement or not. Mr. Christensen responded that they still haven’t received any clarification on that and: “I would rather defer. There is somebody who is actively working on that. I don’t have a concrete answer. I am sorry. I know that this was a point of contention last time. I don’t have an answer on that.”
TF noted that the Commission doesn’t have a copy of the easement language. Mr. Christensen thought that it was included in the packet given to the Commission tonight, but it was realized that only the Richmond document was in the packet. Mr. Christensen will email that to GM.
TF asked if the applicant, which is Pittsfield, was asserting that the easement language permits the construction of the access road, not the power line easement. Mr. Christensen answered in the affirmative, that the applicant believed this to be accurate. TF acknowledged that Stantec was hoping to negotiate an acceptable plan with Audubon (the property which is within Lenox), but his concern is if that the process could be prolonged or legally contentious. TF said that he doesn’t want to see a delay in the restoration of the site under the jurisdiction of the Scenic Mountain Act.
Mr. Christensen said that he has submitted a NOI to the Town of Richmond requesting to have equipment access over their easement off of Swamp Road. The proposal is to install mats to support the equipment via the wetland. That NOI will be before the Richmond Conservation Commission on November 10th.
NC asked for clarification regarding the entire road and if it followed the existing path. Mr. Christensen said that it did except for switchbacks which needed the radius to turn the pole. VA commented that after restoration the path would still be there, albeit narrower than the road that was created, but it would be defined so that if that access were needed for repair. Mr. Christensen said that they cannot miss another growing season and has a set date of June 1, 2016.
Mr. Christensen said that in trying to see if there was another access point he discovered last week that there was a road near the fire tower that had clearly been used by a logging vehicle. Sections would have to be cleared and some would be problematic for machinery. TF said that an alternative, a helicopter, was discussed in the initial meeting. Mr. Christensen said that concrete delivery was the issue.
Mr. Christensen said that he did not want the Commission to feel that anything was being dropped. He, Jim McLaughlin and Cody Miller were working together on this with KOBO, the electrical company who has the bid for this project. TF asked about the scope of the bid, which was a federal bid to install and deliver the power. Mr. Christensen said he didn’t know figures but that it did not say that a road was involved. A road was not planned, he said.
Doug Bruce of BNRC asked about the status of the work done at Mahanna Cobble for which a RDA had been filed. He said that BNRC is a property owner, and complained that they were not notified that work was going to occur. Their property is a priority habitat and he believes that BNRC should have had conversations with Heritage. Mr. Christensen said that the work done was very minor and was necessary because branches were overhanging and interfering with direct visibility of the beacon. Mr. Christensen took Mr. Bruce’s card and will do some research on this and get back to him.
George Wislocki said that he had read an article in the Berkshire Eagle that the airport anticipated putting towers on South Mountain and Hancock Mountain. He asked if steel towers would be used, and Mr. Christensen said that was correct. Mr. Wislocki asked if the property owners had been notified, as an owner had told him that the tower would be a wood telephone pole. Mr. Christensen said that he was brought in for this project only, so that he did not have particulars associated with the projects referred to by Mr. Wislocki. Mr. Wislocki also wanted to know if Audubon had signed the original RDA. TF responded that they did, and in fact Rene Laubach was present during that proceeding.
TF said that the original RDA granted was for clearing of the power line easement and a 25 foot radius around the beacon. It included five individual trees with a total of ten stems to be cut. It allowed continued maintenance of the power line easement only and permitted trimming of trees that grew to a height above the beacon to a lower limit not more than 10 feet below the top of the beacon. TF said that this was the Commission’s understanding of the entire scope of the project with a replacement beacon of approximately the same size of the other and in precisely the same location.
Mr. Wislocki inquired about leasing space on towers, and in particular this tower. Mr. Christensen responded that because of the type of tower it is, they would not lease. Putting a beacon on another’s tower isn’t feasible.
JS made a motion to continue to December 3, 2015 at 7:30 PM. VA seconded the motion and the Commission voted to agree 7-0.
Approve Minutes-October 15, 2015-JS made a motion to approve the minutes as amended. DF seconded the motion and the Commission voted to approve 6-0-1. RFC abstained as she was not present at that meeting.
RFC made a motion to adjourn and VA seconded the motion. The Commission voted to adjourn 7-0 at 8:57 PM.
Respectfully submitted,
Peggy Ammendola
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