Approved June 5, 2003
Marlborough Conservation Commission
Minutes
February 20, 2003 (Thursday)
Memorial Hall, 3rd Floor
Marlborough City Hall, 140 Main St.
Members Present: Edward Clancy-Chairman, Allan White, David Williams, Lawrence Roy, John Skarin, Associate Member-Dennis Demers and Conservation Officer-Priscilla Ryder
Absent: Donald Rider
ACCEPTANCE OF MINUTES: The Commission voted 4-0 to accept the minutes of December 12th and 19, 2002 and January 16, 2003 as written.
(John Skarin arrived)
DISCUSSION:
§ Zoning definition change-lot area – Al Lima, the City Planner made a presentation to the Commission regarding a zoning change being considered pertaining to lot size and lot area. Other communities have used a minimum lot area definition to avoid development-maximizing lots where they are compromised by wetlands or cliffs or some natural feature. The definition Mr. Lima provided requires 90 percent of a lot to be upland in order to be developable. The objective of this definition change is to provide a house with a decent yard and to avoid wetlands being too close to the building. Mr. Clancy asked if this 90
percent area could be defined for lots for septic systems and a lower standard would be used for sewered areas. Ms. Ryder indicated that another way to look at this would be to figure out what the actual lot area for a house and a yard is and use that number to establish how much of a lot needs to be protected that needs to be upland in order for a building to be built. Mr. Lima indicated that 12,500 sq. ft. of upland could be the minimum area. After some discussion the Commission asked that Al Lima and Ms Ryder to provide some examples of lots to illustrate how such an ordinance would work. The Commission will review the examples when they receive them and will provide comments.
PUBLIC HEARINGS:
Request for Determination of Applicability
413 Lakeside Ave. (Shell Gas Station) – Motiva Enterprise LLC
Alan Micale and Neil Scholfield of Ayoub Engineering were present. Mr. Micale explained that with the Mass Highway project, the Felton St. entrance off of Rte. 20 would be closed therefore, the traffic pattern into the Shell Gas Station needed to be altered. This alteration required the shifting around of two landscaped areas within the buffer zone in order to accommodate the truck entrance. They also need to add a remediation shed for the ground water treatment that is being done on the site. Groundwater treatment is expected to last for about five years. Neil Scholfield explained that the groundwater remediation shed would contain granular carbon and air stripping containers. Initially the system will pump 23 gallons per minute discharging over 60,000
gallons in the next six months. Treated water will be trucked off-site to Elizabeth, New Jersey where the water will be recycled, as required by Mass General Laws. After the first 6 months, the system will be designed to pump only one to two gallons per minute as part of the ongoing groundwater treatment program. They will be seeking a discharge permit from DEP and may require coming back to the Conservation Commission at some point. The Commission voted 5-0 to approve the new landscape area location and the shed and issued a Negative Determination with conditions to notify the Conservation Officer when work is to begin.
Request for Determination of Applicability
Lot A Beach St. – Guaranteed Builders, Inc.
Diane Pantermoller of Andrews Survey Engineering, stated they would like to build a single-family house with its closest point 64 ft. away from the wetland. Ms. Ryder indicated she had checked the documentation and had spoken to the gentleman from Eco Tech who had done the delineations and feels confident that the delineations were done correctly. With 2 ft. of snow on the ground, it was difficult to make this assessment on her own.
Jason Benway, the owner of the property, explained that this was his grandmother’s property. There was always lawn area from the street down to the bank of the pond. Joe Duca of 99 Beach St. also indicated that the backyard area has always been mowed and they’ve never had a problem with wetness above the pond. After some discussion, the Commission voted 5-0 to issue a Negative Determination with the standard conditions for a single-family house.
(Member Lawrence Roy left the meeting)
Notice of Intent
Applebriar Lane, Boston Post Rd. West – Applebriar Apartments-MetLife Real Estate Investments
Susan MacArthur of VHB, and Christine Munson of Applebriar Apartments were present. Sue MacArthur explained that the applicant is proposing to construct a clubhouse within the same footprint of the existing tennis courts. The new clubhouse will cover half of the tennis courts and the other half will be converted into a landscape area. The wetland was flagged in 2001 and checked at that time by Ms. Ryder. All work on this project is outside the 20 ft. no disturbance buffer zone, however approximately 90 sq. ft. of the work is within the 50 ft. Water Supply Protection District. The regulations allow for the improvement of existing sites. The decrease of impervious areas within this project accomplish that. The building will be used as offices and a fitness center. The hearing was closed. The Commission voted 4-0 to issue a standard Order of Conditions for this project.
Amend Notice of Intent (DEP 212-847)
Devonshire at 495 – between Hayes Memorial Dr. and Forest St. – The Gutierrez Co.
David Pickart of VHB was present. He explained that his client is requesting an amendment to the Order of Conditions (DEP 212-847) for this new office park development. One of the conditions required the evaluation of the existing pond to determine the cause of weed infestation. An expert evaluated the pond in 2001 in order to determine how healthy the pond was and what mitigation measures might be necessary to improve the pond’s health. The pond was 7 ft. deep with layers of sediment on the bottom. The pond is fed by groundwater and is abundant with aquatic life both insect and amphibians and duckweed. The report provided with the amendment request summarizes the chemical content of the water. It was determined that the limiting factor is nitrogen from the
groundwater; therefore any attempt to dredge the pond may not improve the water quality. Given the above, the applicant is requesting that Conditions # 46, 47, 48 regarding Pond Restoration be amended to allow for wetland replication next to the roadway work where the Bordering VegetatedWetland fill impact is being done instead of pond restoration. The proposed wetland replication area is 8 times larger than the fill area. The Commission discussed the location of the replication area and indicated that prior to construction of the wetlands, the Conservation Officer and the wetland scientist must meet on site to determine the exact location of the replication area. If large trees can be saved, the replication area may be less than the area proposed, but should not be less 1,000 sq. ft.
They’re being no further discussion, the hearing was closed and a draft Amend Order of Conditions will be reviewed at the next meeting.
Abbreviated Notice of Resource Area Delineation
355 Boston Post Rd. – Boston Post Rd. 355 LLC across from Linguini Restaurant)
At the applicant’s request, since there is 2 ft. of snow on the ground, the hearing was continued to March 27, 2003.
Notice of Intent
Donald Lynch Blvd. – Upper River Rd. LLC on behalf of the City of Marlborough
At the applicant’s request, the hearing was continued to March 6, 2003.
Notice of Intent
Concord Rd. – Hemenway St. – City of Marlborough DPW
Pat Clancy, City Engineer, presented the project which involves constructing a sewer pipe line from the pump station at the end of the cul-de-sac on Hemenway Street, along the undeveloped portion of Hemenway Street with laterals that will go up to the 7 houses behind Concord Road. Resource areas on this project are the riverfront area, bordering vegetated wetlands and land underwater. The crossing of Broadmeadow Brook will be the most difficult part of the project, which requires some dredging and jacking the pipe underneath the existing culvert. Some ledge will be encountered in this area and blasting is anticipated. Erosion controls will include haybales and silt fencing along the roadway, check dams and clay barriers to prevent the migration of groundwater. Lawrence Roy
requested that someone from the DPW be assigned to do some oversight on the project to make sure that the contractor follows appropriate methods to control erosion. The Commission discussed the problems that they had with the waterline project and requested that a construction sequence plan be provided. The Commission agreed that the contractor would come to a regular scheduled meeting prior to construction to discuss a sequencing and mitigation plan.
Roy Rezac of Concord Rd. provided a letter dated Feb. 20, 2003 to the Commission, which was read and placed on file. Mr. Rezac explained his concerns that they may not have been properly notified, also questions regarding easement, tree removal, and septic systems. Mr. Patrick Clancy indicated that he would be discussing the construction and easements with each owner separately and will not discuss these issues at that time.
Frank Nims of Concord Rd. requested information about where the stub on his property will be.
The hearing was closed, and a draft Order of Conditions will be reviewed at the March 6th meeting.
Notice of Intent
Jericho Hill 496 Brigham St. – City of Marlborough
Patrick Clancy, City Engineer, John Kissada of CDM, were present.
Pat Clancy gave an overview of the project. He noted that an Order of Conditions was issued for the fill of the field below the ski slope and this operation is now in progress. During the fill process, it was determined that the pipe could not be replaced as originally required. This new plan includes the replacement of the pipe in a slightly different location with a different connection to the pond.
John Kissida noted that the project is under a tight deadline, which needs to be completed by June 30, 2003 in order to receive the funding. He reviewed the plan noting the items that will be added to the project including a basketball court, parking, play area, field drainage and installing irrigation. Irrigation will use 1,800 gallons of water per day from the pond, which is well under DEP’s threshold for permits. A new weir structure at the pond will be installed. The existing wetland area, which will be altered, will be replicated by equal amount of wetland replication where the existing weir is to be removed. The drainage, as described in the plan, was discussed. The pipe under the fields was discussed to determine how it would be installed. Pat Clancy
requested that the contractor be required to come to a Conservation Commission regular scheduled meeting to describe the construction-sequencing plan. The Commission also requested that work be started on Monday, so by Friday, the trench isn’t opened for long periods of time. The Commission also requested information about stabilizing the slope in an expeditious manner.
Leeland Woodworth an abutter on 475 Brigham Street indicated that there is lots of water at the bottom of the hill and he expects that work removing the pipe will be in groundwater. He discussed the need to move some of the proposed trees in order not to block his view from his house to the hill. He complained that the existing filling operation was tracking dirt onto the roadway and should be controlled. He expressed concern about the dust that may be generated from the site.
Larry Roy requested information about who would be monitoring the site. Pat Clancy indicated someone would be assigned to monitor the site.
The hearing was close. Later on during the meeting, a draft Order was reviewed and the Commission voted 4 – 0 to issue the Order of Conditions as written and amended.
Notice of Intent
Raymond Rd. (Lot 65) – Laurence M. Maloney
Bob Murphy of Murphy & Associates, Inc. represented Larry Maloney, the applicant. Mr. Murphy explains that they desire to develop two house lots one on Lot 65 and one on Lot 85 Raymond Rd. Two separate Notices of Intent have been filed one for each lot. Lot 65 is discussed first.
The new plan for Lot 65 was generated from the prior Notice of Intent submitted for this property. The flood level for this lot is defined by the hydrology, drainage calculations and by observed high water marks on the trees.
He noted that flooding onto the roadway has been observed on the corner of Melody Rd. and Raymond Rd. He explained that the 1960’s topo plans show these lots as wetlands prior to the development of Raymond Rd. and was part of a larger wetlands system with an intermittent stream flowing through the project property. But, when Raymond Rd. was constructed, the wetland became isolated. He checked the natural heritage maps, which did not show that the area was a certified vernal pool. Mr. Murphy indicated that the entire wetland area should not be considered the vernal pool. Mr. Clancy noted that the vernal pool boundaries are defined by the extent of the high water elevation. Mr. Clancy indicated that there is a history to this site, as reviewed under DEP 212-711 and
its subsequent appeal. The Commission provided Mr. Murphy with a copy of the vernal pool certification information provided by the Natural Heritage & Endangered Species program. Mr. Murphy explained that the landowner was never notified of the vernal pool certification process. It is his understanding that the owner must agree to have a vernal pool certified on his property and should be able to dispute it. Because of this, he believes the certification process was flawed.
Mr. Murphy explained that the flood elevation is 338.7 as shown on Lot 65. To construct a house on Lot 65 there is ample room to provide compensatory storage as required by the regulations for Isolated Land Subject to Flooding. He also noted that there are Bordering Vegetated Wetland on this property and the vegetation delineation line represents that.
Patrick Clancy, City Engineer, asked for clarification on the calculations of the hundred-year flood line. If the water overtops the bank and floods onto the roadway than in fact the flooding is higher than depicted on the plans. If however, they are relying on the calculations than there should be no overtopping over this embankment. This needs to be clarified since it does change the elevation of the flooding. Mr. Murphy indicated that he is not disputing that the water rises up to the street, but, when his client decided on the elevation they took into consideration all the information including observed marks on the trees and drainage calculations.
Chairman Clancy indicated that any work next to a wetland would overtime alter that wetland because the homeowners would want to enlarge the yard, etc. Mr. Murphy indicated that this could be restricted in the Order and on the Deed. Lawrence Roy indicated that enforcement is always very difficult and the uplands are also important to the viability of the vernal pool.
Thomas Callahan explained that the vernal pool certification is important from a due process point of view. He summarized that the wetland regulations allow for 5,000 sq. ft. of fill in an isolated land subject to flooding. He is aware that the 401 Water Quality Certification indicates that in an outstanding resource water no fill can be placed. He believes that this question must be clarified in Superior Court. The issue he wants to place before the court is whether this is an outstanding resource water or not. He thinks the regulations are unclear as to whether vernal pools are outstanding resource waters. If it is not outstanding resource water then the regulations allow for replication of the vernal pool. He indicated that through the adjudicatory hearing
process for the first denial, he revised the plan 13 times. In the end, the judge indicated that the plans were to be resubmitted to the Conservation Commission because they are so different from the original plans. Mr. Callahan had requested that he submit plans with a house on each lot.
Ms. Ryder asked for clarification as to whether this wetland is to be considered Bordering Vegetated Wetlands or an Isolated Land Subject to flooding. Mr. Murphy stated that there are wetlands with the buffer zone and isolated land subject to flooding on this same site. He would measure the 20 ft. no disturb zone from the flagged bordering vegetated wetland and not the 100 year flood plain. Ms. Ryder indicated that these two types of wetlands could not exist together.
Robert Davis, the president of Temple Emanuel, owner of Lot 85 was present. He asked how the party such a Temple Emanuel is injured in this type of project and wants to know how they will be compensated. He expressed concern that only his property and the adjacent lot was left wet when the roadway was installed. Mr. Callahan explained that the subdivision was built in the 1950’s and the whole area had been a bog and the regulations were not in existence to protect the wetlands. These two lots were not built because they were unable to install septic systems due to the wetness. After a lengthy discussion, the Commission determined that additional information about the vernal pool certification was needed and they would like to review the old files for these
properties. This hearing was continued to March 6th.
Notice of Intent
Raymond Rd. (Lot 85) - Laurence M. Maloney
This hearing was opened. The discussion about Lot 65 is relevant to this Lot 85. This hearing was continued to March 6th.
(Lawrence Roy left the meeting)
CERTIFICATE(S) OF COMPLIANCE
§ DEP 212-313 35 Draper Cir. (Lot 168) – The Commission voted 4-0 to issue a Partial Certificate of Compliance.
DRAFT ORDER OF CONDITIONS
§ Draft Order of Conditions – Off Hayes Memorial Dr. – Algonquin Regional School District – The Commission reviewed and voted 4-0 to issue the Order of Conditions as drafted and amended.
DISCUSSION
§ Acre Bridge Estates – The Commission reviewed a Definitive Subdivision Plan for Acre Bridge Estates on Farm Rd. - A letter containing these recommendations will be sent to the Planning Board.
§ Municipal Roadway Vegetation Plan - the Commission voted 4-0 to accept this plan and place on file.
§ Letter from Paul Carney, dated Feb. 5, 2003 RE: Flooding of his property (JPI) – the Commission read this letter and agreed that a letter be sent to Mr. Carney asking if he had checked the two drains underneath the power lines to be sure they have not clogged up. Clogged pipes would likely cause this backup.
§ Sterling Woods - Farooq Ansari - continued discussion regarding Enforcement Orders. Ed Clancy explained he attended a meeting with James Golden, Tricia Pope, Pat Clancy, Priscilla Ryder to discuss the long-term solution to this fail detention basin. As determined in this meeting, the Conservation Commission should continue to enforce the Order of Conditions issued in November 2001. The Commission agreed that a $100 daily fine on workdays should be issued to Mr. Ansari beginning February 28, 2003.
ADJOURNMENT
There being no further business, The meeting was adjourned.
Respectfully submitted,
Priscilla Ryder
Conservation Officer
PR/sb
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