Lenox Conservation Commission
Landuse Meeting Room
December 3, 2015
Minutes
Members present: Chair Neal Carpenter, (NC); Vince Ammendola, (VA); Tim Flanagan, (TF); Joe Strauch, (JS); David Lane, (DL); Rose Fitzgerald Casey, (RFC); Dick Ferren, (DF)
Staff present: Gwen Miller, Land Use Director/Town Planner, (GM); Peggy Ammendola, Land Use Clerk (PA)
Notice of Intent, Pittsfield Municipal Airport, 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 with the CC occurred on August 20, 2015 and representatives of PMA were told to file an NOI. The NOI was filed and the hearing was held on September 17, 2015. There was
then an update on October 1st and continued for another update on October 15th. No one was present, nor was Commission advised and therefore was continued to November 5, 2015. At that meeting, the hearing was continued again to December 3rd. (Pittsfield Municipal Airport has open NOIs for SMA and WPA for the project which is on property located in Richmond. The Lenox CC attended a meeting of the Richmond CC on November 10, 2015.)
Tonight’s meeting is a continuance from November 19, 2015, but on November 30th, Mr. Christensen of Stantec requested again to continue the NOI hearing citing that additional time was needed to prepare an updated draft of the restoration plan for presentation to various parties. Additionally, Mr. Christensen said that legal action by one of the involved parties needed to be addressed. On November 25, 2015, the Commission received correspondence from Attorney William Martin of Martin, Oliveira and Hamel which advised that he was representing Joseph A. Cardillo and Sherry L. Cardillo. Because the Commission was unable to notify parties in a timely manner of Mr. Christensen’s request for a continuance and because Attorney Martin’s letter , it was felt that the hearing should be opened for further discussion at
this time. NC said that he also felt that it was important to discuss further the concerns regarding the stabilization of the site during the winter. The hearing was opened.
Present were Randy Christensen of Stantec; Becky Cushing of Mass Audubon, Pleasant Valley; Clarence Fanto, Berkshire Eagle; Joe Cardillo; Attorney Bill Martin who represents Mr. Cardillo; and Bruce Winn of BEAT
Discussion ensued regarding the stabilization. DL said that he felt that the soil was compacted and since he has seen no signs of erosion, he felt that moving dirt at this time of the year would be a mistake. NC said that he thought adding fabric would provide more stabilization. DL agreed. TF said that he would like for the cut banks to be stabilized and a higher frequency of the fiber logs installed, Mr. Christensen said that he and Audubon had been to the site and they did not observe any erosion issues. Since then, Stantec has installed 19 fiber log diversions and checked at 3 weeks. He said that rain has made the logs very heavy and the freezing temperatures have resulted in the logs meshing with the dirt and providing a solid barrier. He was amenable to adding more fiber logs, but would have to
discuss access.
NC asked what PMA’s thoughts were about needing the pathway in the future for maintenance and repairs. Mr. Christensen said that this has been discussed with Mass Audubon and that they would want a written statement from the PMA Commission based upon similar beacons regarding maintenance frequency from something as simple as bulb changing which would require no more than one individual to hike to the site to major repairs requiring a 6-8 foot wide passage for heavy equipment. It is believed that there was a trail to the site back in 1950, but if this access is blocked, Mr. Christensen said that they would have to go through the whole access process again within the constraints of the easement language. He hopes for a happy medium between restoration and leaving some form of access. Mr. Christensen said that Mass
Audubon has requested a preventative maintenance plan for the tower, installation, feed, etc., but it has not been developed yet. This PM plan will be submitted to the Conservation Commission.
TF asked Mr. Christensen if he had been able to get clarification of the easement language which is very loose and very broad. Mr. Christensen said that they are actively involved on a weekly basis with the Pittsfield City Solicitor and that progress is being made.
Attorney Martin said that Mr. Cardillo, who has not attempted to be an obstructionist, understood that a substantial road for getting equipment up to the tower site would be created but afterwards the debris would be cleaned out and the road would be allowed, with a little help, to revert to a small trail that would remain accessible to the airport or firefighters. Mr. Cardillo allowed his property, which borders on the Audubon property, to be used for the access road. Attorney Martin said that the controversy centers on property above Mr. Cardillo’s property and into the Audubon property where many trees were downed and the area needs to be restored. Attorney Martin said that Mr. Cardillo would allow the contractor to do whatever work can be done while the ground is frozen, e.g., remove or chip debris as he
doesn’t want a big project during the summer.
Attorney Martin stated Mr. Cardillo understands that the tower needs to be maintained and the path which has existed “forever” should be allowed to be used in a reasonable and appropriate manner, but he had no idea of the scope of the project which will result in a lot of traffic on Mr. Cardillo’s property. He simply wants to be kept informed of what is going on.
The original plan called to replace telephone poles and run a wire up the mountain, but that has been changed to running a conduit above the ground. This will run across Mr. Cardillo’s property which he feels has the potential of being a hazard so he wants indemnification and insurance information from the City of Pittsfield. Another issue is that Mr. Cardillo said that his driveway was damaged when access to the tower was being constructed. Attorney Martin said that he would like for this to be repaired.
Attorney Martin acknowledged that Mr. Cardillo’s issues do not fall under the jurisdiction of the Commission. What does is the restoration and Audubon’s property, but he wanted all of the stakeholders to be on the same page. Attorney Martin said that there is no resistance by the Cardillo’s with a plan to use the driveway and a road that goes off from it to access the property as long as they are not in the position of violation of Conservation Commission restrictions or other law. Attorney Martin feels that gaining permission from Richmond to gain access through wetlands is not necessary. He also stated that the activities that that may have been violations that have occurred were because Mr. Cardillo gave permission and cooperated with the contractor. Mr. Cardillo doesn’t want this to be his
problem and wants to make sure insurance is in place related to the over ground conduit.
Attorney Martin noted that the City of Pittsfield has implied that Mr. Cardillo is not cooperating in providing access which is incorrect. He said that all that they are requesting is to be informed of what, when and why, and they are “pretty sure that we will let it be done”. Attorney Martin said that when Mr. Cardillo was approached regarding access to the beacon site, he cooperated, but as things progressed he feared that he could be faced with liabilities, therefore sought out Attorney Martin’s expertise.
TF asked Mr. Christensen if it was his understanding of the situation that the communication between the parties regarding access is consistent with what Attorney Martin presented. Mr. Christensen responded that it was difficult to answer TF’s question as they don’t have a restoration plan yet. He said that his parameters are being set by others. He has heard from the Commission and the property owner who is guiding that design. He is now getting constructive information and a plan is now in draft that is very conceptual. He has to meet with the property owners to get their consent so that a united front can be presented to the Commission. Mr. Christensen said that he has had a site walk with Audubon so that he could learn what their parameters are so that this plan could be advanced, and that is the stage where
they are at this point.
Ms. Cushing stated the Mass Audubon understands the need for ongoing maintenance for the beacon and wants to see it in writing what that would involve so that they can design a restoration around that need. Mass Audubon is not blocking access. Ms. Cushing said that the way Mass Audubon manages their properties is to allow for them to grow. They want to allow the forest to grow in to be an old growth forest
Attorney Martin responded that the public’s perception is that the Cardillos are obstructing access, but the PMA has the right to get up to the top of the mountain via the Cardillo’s property. They are welcome to use that access in a reasonable and fair way. “Tell us what you are going to do, tell us when and how you are going to do and restore our property as any reasonable land owner would after you do it.”, stated Attorney Martin. At this point, Attorney Martin feels that the trees on Mr. Cardillo’s property that were downed for the purpose of putting in the beacon should be chipped or removed so that the walking trail on his property is restored.
VA commented that in his opinion the discussions have been going in circles and he feels that the key to resolution is determined by the airport and what they need for access in order to service the beacon, e.g. maintenance and repairs. Once that is determined then discussion with Audubon and the Cardillos can take place on the needs of the airport.
VA suggested that since it appears that Mr. Cardillo is giving access that perhaps work to restore his property could take place this week. He concluded with: “The problem is right now someone needs to kick start somewhere here otherwise we will be doing the same thing next spring.” Mr. Christensen responded “With that direction I can clearly see a quick and easy path. I will be happy to do it”.
NC pointed out that the easement language states that whatever was disturbed was to be restored. Mr. Christensen stated that the conduit has been inspected and approved.
Attorney Martin said that he has suggested to the City of Pittsfield to convert the 40-50 year old easement to a new document with easement access for maintenance, limit of rights, etc. VA suggested that this be done when all of the restoration is done.
TF said that it is now up to Stantec to advance the plan as the need has now been identified and the Commission shouldn’t speculate on the design. JS added that what took place was a violation of the Scenic Mountain Act and the Commission wants it resolved and wants the airport and Audubon to come up with an agreement, but he stated that the Commission would still have to approve the plan. Mr. Christensen said that it has been a difficult to design a plan when there were so many ideas that were so far ranging, but that at tonight’s hearing, he was feeling more comfortable as things were better defined.
Mr. Christensen said that there had not been discussions of chipping of the downed trees on Mr. Cardillo’s property. Attorney Martin argued that the Cardillos want the area of their property that was disturbed restored to as close as possible to the condition before construction began and that the present condition is not acceptable. DL wanted it to be clear that the Commission has no interest in the Cardillo property. TF added that the Commission’s concern was that Stantec and their contractors have access to the Lenox property and that as a result of the discussion tonight, it is understood that this is not a problem.
TF was concerned about the runs between the diversions were too long, some being 250 feet. Mr. Christensen said that he would add more to break up to 125 feet runs. June 1, 2016 is the proposed start date for restoration. He will continue to update the Commission.
DF made a motion to continue the hearing to January 21, 2016 at 7:30. JS seconded the motion and the Commission vote to agree 7-0.
Request for Determination of Applicability, Carrie Berry, 118 Plunkett St., Map 3 Parcel 74-The proposal is a subsurface disposal system upgrade. Construction activities fall within the limits of the 100 foot Buffer Zone.
Mike Kulig of Berkshire Engineering presented the plan which was revised on November 30, 2015 to be slightly further away from the house and wetlands, but still within the buffer zone.
After review of the plan change, RFC made a motion to issue a Negative 3 Determination and DL seconded the motion. 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. 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. At the November 19th meeting correspondence from Mr. Akroyd was read into the record in which he requested another continuance until December 3, 2015.
Present was Rob Akroyd.
Mr. Akroyd resumed the discussion from previous meetings, regarding land ownership. He is of the opinion that the Land Court document which has been reviewed by the Commissioners, gives the applicant the right to do the work proposed under this NOI without securing signatures from any other individuals. He said that Attorney Greenwald, Town Counsel Joel Bard and Mark Stinson of Mass DEP concur. NC responded that according to the document the work described by Mr. Akroyd can be done, but the signatures of the abutters are required. He added that one of the abutters, Scott Jarvis, has told NC that he hasn’t signed. TF said that under the derelict fee statute, the four abutters still own the land beneath the easement. The Commission maintains that they need signatures.
Another issue is that the NOI filed has only the Applicant’s name, and not the property owners. TF said that under the definition of a Notice of Intent, it is stated that if the applicant and land owner are not the same, the Applicant shall obtain written permission from the land owners prior to filing the NOI for proposed work except for work proposed on great ponds or Commonwealth tidelands.
GM said that it is her understanding from Town Counsel that the NOI should be recorded against the deeds of the abutters as well as the abutters of the properties fronting the length of Chestnut Lane as they own from the center line of Chestnut Lane.
Mr. Akroyd asked to discontinue this part of the discussion for the time being and move forward with other issues regarding the NOI. The Commission agreed to the request, but held firm their belief that they need to have both the signatures of the four abutting properties and the NOI properly filled out.
The Commission said that they would also like two Notices of Intent. One NOI would be for the road and the other would be for the development of the lots. Their reasoning was that they felt that the building lots should not be included on the deeds of the abutting property owners. Mr. Akroyd said that Mark Stinson stated that if there was an easement that says that the work could be done, that the DEP would not like the project segmented.
Discussion ensued regarding the lack of specific plans for the development of the lots, but rather a building envelope. Mr. Akroyd said that if the NOI is approved and if a subsequent owner wanted to build outside of the building envelope, it would be the responsibility of the new owner to seek approval of the Commission. TF said that he did not think that the Commission would approve an NOI with nothing but a building envelope, stating that the plan lacks the details for grading, run-off, location of sedimentation and erosion control, etc. Mr. Akroyd suggested that the Commission could condition the approval, but TF stated that this information should be included with the Notice. TF pointed out that there was no drainage information on the road and the Commission doesn’t know if new discharge points are being
created.
NC asked about frontage of the second lot and Mr. Akroyd responded that frontage was not for the Commission’s consideration. NC argued that if frontage was required, that would be into the wetlands. Mr. Akroyd referenced Plan 101 which accompanies the NOI and said that when the Applicant goes before the Planning Board for a Form A, they are responsible for determining if the frontage is adequate, and gives no consideration for wetlands. The Commission only rules on the wetlands, not whether or not if there is adequate frontage, therefore this shouldn’t be under the Commission’s consideration. Mr. Akroyd said that they are showing a specific driveway location on their plan and if that changes, the plan is invalid. Mr. Akroyd said that the Applicant has been before the Planning Board and they said that if the
Commission approved, then the Applicant should file for the Form A and the PB would determine if there is adequate frontage. He said that the Applicant filed an RDA in 2013 for this project as all of the work would be in the buffer zone, but the Commission required an NOI because they felt that as proposed it would impact jurisdictional areas. (October 17, 2013 was the meeting date and the agenda item was listed as: Request for Determination of Applicability, Macalin Realty Trust, Martha Lane., Map 18 Parcels 46, 47, 51, 52, 57 and 58. ~Reconstruction of a 12 wide, approximately 360 foot long gravel section of Chestnut Lane. Two lots were also proposed.) Mr. Akroyd explained that they are asking the Commission to approve a location for a house, not for a specific house and that they are taking steps so that the lots could be sold within reason. They are doing re-vegetation, not because they are obligated, but because they feel that it will assist in
the permitting and development. Mr. Akroyd said that at the bottom of the road runoff apparently flows unabated into the brook and he feels that the re-vegetation plan will help to mitigate. He believes that he has put forth a project which meets the requirements of the WPA. NC said that with a road there will be more runoff and TF said that the application lacks information therefore the project cannot be evaluated. TF told Mr. Akroyd that the Commission will want the pre-construction and post-construction calculations for the driveway. Mr. Akroyd questioned if the Commission would require the same of other driveways that are in the buffer zone. NC responded that they would if other driveways were steep and graveled and TF said that the Commission would certainly ask questions about the drainage noting that at the site visit for this property they had observed drainage and part of that road is eroding. DL asked about the impact the project would have
on the culvert on East Dugway and Mr. Akroyd responded that there would be no impact or insignificant.
TF said that the Commission cannot properly evaluate an NOI that only shows the footprint as indicated on the plan because there is no way of knowing if the wetland would be altered or not. Additionally it is not known whether or not this would be a subdivision or what part of the project might be exempt from stormwater management. Mr. Akroyd said Mark Stinson told him that if he took the swale off the drawing the project would no longer be subject to stormwater management as there is no point source discharge. TF responded that would be assuming there are two lots, but it is still not clear to the Commission what the project involves i.e., if the project would be segmented.
TF said that the Commission does not know what pathway to follow under the regulations if they cannot find who the owners are and whether it is a subdivision or not. Mr. Akroyd said that it is coming to a point where the applicant will simply ask the Commission to render a decision. Again, TF said that the Commission doesn’t have enough information to evaluate and if the Commission were doing a simplified review, it would require a minimum of 50 feet out and in the lower 50 foot of buffer zone require stormwater management. He suggested that Mr. Akroyd look to the DEP Guidelines and to meet the criteria for the simplified review. Mr. Akroyd said that he understands that this is the Commission’s policy but stated that the Commission doesn’t have their own wetland bylaw. Mr. Akroyd was advised that if the Commission
turned down the project, the Applicant could appeal to DEP. Mr. Akroyd said he preferred working something out with the Commission.
TF said that he is still very confused about the property ownership issues. He doesn’t see why the Macalin properties are not one lot. There are four lots on the subdivision plan on one side of the way and two on the other side with a common ownership and the ownerships are conjoined by the derelict fee statute.
Mr. Akroyd explained that the lots are ½ acre each and when zoning was adopted by the Town of Lenox the lots were zoned 20-30-40. Eight or nine years ago the zoning was changed and these lots were re-zoned to R1A. Mr. Akroyd said that since the lots are grandfathered they could do six lots, but instead have combined them to be two lots. One incorporates four lots, and the other incorporates two. The lots would comply with current zoning, but because they are grandfathered, it is not required. They are not putting all six into one lot, but if they lose the second lot, then the applicant would combine with the expectation that this would increase the value.
If the Commission were to not approve this project, it would have to have a reason. Building in the buffer zone is permitted with the condition the work to not alter the wetland.
TF said that DEP tells Conservation Commissions to be concerned about the preservation of the physical, chemical and biological characteristics of the inner buffer zone. The clearing of natural vegetation and soil disturbance including changes in composition, topography, hydrology, temperature and light, may alter the soil and water chemistry of the resource area. It changes the plant community composition and structure, the invertebrate and invertebrate biomass species composition, and nutrient cycling. These alterations can occur through the disruption and erosion of soil, loss of shading, reduction in nutrient inputs, and changes in soil and litter composition that filters runoff serving to attenuate pollutants and sustain wildlife. To avoid this, TF stated, it can be presumed that the project has no substantial impact in the
resource area if they are greater than 50 feet out and if they incorporate stormwater management and provide erosion controls. The slope is not to exceed 15 percent of the lot and not more than 40 percent of the outer buffer zone may be impervious.
NC pointed out that the Commission almost made a decision two years ago on a proposal by Macalin. At that time the Commission questioned the ownership; who owned the road and if one could build on that road. He added that the Commission is still looking for answers to ownership and now another house is being proposed that would probably be in the wetlands.
Mr. Akroyd said that he would agree to one more continuation. In the meantime he will seek the clarification from Town Counsel and Attorney Greenwald regarding the easement language and if it in fact gives the Applicant the right to be the one owner on the application. Depending on their opinions, an amended NOI may or may not be filed. Mr. Akroyd also said that he will use the simplified review process and provide as much info as possible on the drawings for the Commission to review at the next meeting. NC said he was not comfortable with the second house being so close to the wetlands. Mr. Akroyd responded that the Commission could condition or deny the NOI.
DF made a motion to continue the hearing to December 17, 2015 and DL seconded the motion. After some discussion regarding Mr. Akroyd having another meeting on that date it was determined that the motion be withdrawn. DF withdrew his motion. DF made a motion to continue the hearing to January 7, 2016 and DL seconded the motion. The Commission voted to agree 7-0. JS requested a copy of the Notice. Mr. Akroyd said that he would bring two additional copies on December 4th.
Other Business:
Site Visit-November 25, 2015, Canyon Ranch to check the siltation devices. It was attended by Ed Ackley of Five Star; Rob Hoogs of Foresight Land Services and NC.
Site Visit-November 27, 2015, RDA Carrie Berry, 118 Plunkett St., Map 3 Parcel 74-It was attended by Mike Kulig of Berkshire Engineering and VA, TF and NC.
Farnham Dam-Gregg Sciaba of AECOM contacted NC regarding the project on New Lenox Road to seek permission to take down trees that were marked, but leaving the stumps. There will be no digging. NC agreed.
Henry Avenue, Town of Lenox, replacing the pump system and 1400 feet of pipe. A filing will be submitted soon. The site visit will be on December 7, 2015 at 3:30 PM.
Approve Minutes-November 19, 2015-DL made a motion to approve the minutes and RFC seconded the motion. TF suggested an amendment. The Commission voted 7-0 to approve the amended minutes.
RFC made a motion to adjourn. DF seconded the motion. The Commission voted 7-0 to adjourn. The meeting was adjourned at 9:45 PM.
Respectfully submitted,
Peggy Ammendola
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