MINUTES ZONING BOARD OF APPEALS
SEPTEMBER 28, 2006
MEMBERS PRESENT: William Donovan, Nicola Gioscia, David Beaudoin, Kevin Biermann, Frank Carey and Roger Pelletier.
Chairman William Donovan convened the meeting at 7:30 P.M.
The Board signed the bill schedule.
David Beaudoin made a motion to approve the minutes of August 24, 2006 as presented.
Nicola Gioscia seconded the motion.
It was so voted unanimous.
7:45 CONTINUATION OF PUBLIC HEARING FOR EQUESTRIAN HILL ESTATES, LLC EARTH REMOVAL ROUTE 32 STAFFORD ROAD MONSON.
CASE J – 2006
William Donovan reconvened the hearing and following his comments regarding the powers and purpose of the Board the manner in which the hearing would be conducted and the rights of all concerned he introduced the members of the Board.
William Donovan stated the Board had received comments from David Loring, P.E. Tighe & Bond Consulting Engineers and had forwarded a copy to Michael Mocko, consultant to the applicants. Based on the comments from David Loring Michael Mocko made a written request to continue the public hearing to a later date and time. Mr. Donovan stated the reason he wanted to read the review from David Loring at the public hearing was that the applicant applied for an earth removal permit to construct two homes. Since that time the Planning Board has denied a request for an estate lot for one of the homes inasmuch as the earth removal is now for one home not two that could significantly reduce the amount of material that is to be removed.
In his review dated September 19, 2006 David Loring, P.E. described the location of the parcel of land and its topography. He made the following comments:
The means and method for material removal and disposition of large surface boulders, stumps and logging slash was not addressed. Does the applicant intend to screen material on site?
Does the applicant propose any temporary structures on the property?
What are the hours of operation?
The applicant should consult with Town Departments for transporting the material through the Town.
What is the area and depth of excavation?
Excavation is shown to within 5 feet of the rear and side property lines. The composition of the existing soils creates a high erosion hazard, a minimum of 15 feet but preferably 20 feet should be provided.
The proposed finish slope is 2:1 extending up to 160 feet without interruption. Slopes this steep are prone to slope slippage, raveling and erosion.
Provisions for temporary drainage controls should be provided.
The applicant has not provided details of any fencing or signs as necessary for public safety.
The applicant provided grass-planting details for the finish treatment of the land. The proposed treatment should consider soil conditions, land slope, growing conditions, shade, privacy screening, noise control, appearance, wildlife habitat and erosion control.
The provision for temporary access does not consider storm water runoff mitigation and controls to prevent overland discharge directly to Stafford Road.
The applicant has not provided details regarding mitigation for dust control or visual impacts for abutting residential properties.
David Loring made general comments and recommendations for the Boards’ consideration.
The area of disturbance exceeds one acre and requires filing a Notice of Intent under the EPA National Pollution Discharge Elimination System (NPDES) program.
The proposed finish grade is a continuous slope at 2:1. Bases on experiences at similar sites in Monson David Loring recommended a maximum slope of 3:1 with contour benches constructed along the slopes at 50-foot intervals to prevent unraveling of the embankments.
What design criteria was used to size the five infiltration structures proposed throughout the site? Are the infiltration basins designed to accommodate the sediment load from the denuded landscape?
Specifically where are the geotextile fabrics to be used on the steep slopes and swales?
The work is proposed in three phases and the sequence of construction should consider how storm water management is to be accomplished during each phase. The storm water mitigation measures shown on the plan are for the finished conditions.
The applicant provides limited information regarding the on site soils, despite proposed excavations of 80 feet. What is the depth to the water table? What is the composition of the underlying materials? What is the natural angle of repose for the in-situ materials? The only soils information provided was based on a generalized soil survey based on limited soil sampling at depths of a little over five feet. A geotechnical investigation should be performed to confirm the existing soils, classification of on-site soils, stability of slopes, and depth to groundwater.
The northerly sight distance for vehicles entering Stafford Road from the site is restricted by existing vegetation and road embankment.
Based on the review of the proposed earthwork approximately 382,000 cubic yards of material is to be removed from the 12.7-acre parcel.
The Zoning Board of Appeals requested Tighe & Bond to estimate the minimum volume of material to be removed to provide two building lots. Based on the grading plan as presented and for two homes in the front 350 feet of the lot approximately 48,000 cubic yards of material would need to be removed.
An estimated performance bond of $155,936.00 would be required to restore the site should the applicant fail to complete the project as proposed.
Michael Mocko requested an extension to a later date and time on behalf of his client Equestrian Hill Estates, LLC.
William Donovan stated to continue it would have to be to a specific date and time in order to comply with the laws governing public hearings outlined in Chapter 40A of Mass. General Law. The Board has only so long to act on a petition and personally he was not willing to risk violating the time schedule thus allowing the earth removal by default.
Nicola Gioscia stated he believed the petition should be withdrawn without prejudice because the Planning Board has denied the estate lot. The petitioner should refile with the Board for earth removal associated with the construction of one home.
Michael Mocko questioned if the Board would waive the application fee?
William Donovan stated no. The Board must advertise a public hearing in the paper and notify abutters.
Michael Mocko asked for the Boards’ indulgence whilst he made a telephone call to consult with his client.
Following a 10-minute recess Mr. Mocko returned and on behalf of his client made a written request to withdraw without prejudice.
David Beaudoin moved to accept the request to withdraw without prejudice.
Nicola Gioscia seconded the motion.
It was so voted unanimous.
8:40 PUBLIC HEARING FOR A SPECIAL PERMIT FOR EARTH REMOVAL ON PALMER ROAD. THE APPLICANT IS MAELDUN LLC.
CASE NO: K - 2006
MEMBERS VOTING: William Donovan, Nicola Gioscia, David Beaudoin, Frank Carey and Kevin Biermann.
Also Present: Donald Frydryk, P.E. Sherman & Frydryk, Christopher Haley and Kevin Haley, Maeldun, LLC.
Following comments from Chairman William Donovan regarding the powers and purpose of the Board, the manner in which the hearing was to be conducted, the rights of all concerned and introduction of the members of the Board, David Beaudoin read the legal as it appeared in the Republican newspaper the weeks of September 12 & 19, 2006.
Donald Frydryk made a presentation on behalf of his client stating the property is on the northwesterly side of Palmer Road and westerly of the railroad. The property owners currently use it as a storage area for wood pellets. The total acreage is 16.6 acres and the earth removal will occur over 8 acres. It is estimated that the project will take three years to complete and it will be done in three phases. The approximate cubic yardage to be removed over the life of the project is 250,000 cubic yards. That is anticipated to break down to approximately 70,000 cubic yards the first year, 90,000 cubic yards the second year and the remainder the third year. A detailed drainage report was included in the submission and was sent for review to Tighe & Bond. Keith Terry, Sherman &
Frydryk conducted three test pits and two other soil borings were conducted at the top of the existing slope by Seaboard Drilling, Inc. A four-foot separation between ground water would be maintained in the lower retention area at elevation 92.
Phase 1 will cover approximately 2 acres of earth removal and two sediment basins would be constructed to intercept all silt-laden run off from the work area. At the finish of Phase 1 one of the basins would be converted into a detention/infiltration basin and the other removed for the installation of a subsurface detention/infiltration facility.
Phase 2 will cover approximately 2.5 acres and a new sedimentation basin constructed to intercept all silt-laden run off from the work area. Phase 1 will be closed out when the grades are met.
Phase 3 will cover approximately 2.2 acres. The sedimentation basin in Phase 2 will be cleaned of silt and sediment and enlarged to handle additional run off from Phase 3. Phase 2 will be closed out when the grades are met. The sedimentation basin will be converted to a detention/infiltration basin at the end of Phase 3.
Present and speaking in favor were: Christopher Haley and Kevin Haley.
There was no one present to speak in opposition.
David Beaudoin stated the Board received a fax copy of David Loring’s review today and had not had a chance to look at it.
Nicola Gioscia questioned if it was going to be done in 3 phases how would the open areas be maintained throughout the phases?
Donald Frydryk stated each phase would be closed out loamed, seeded and vegetated. The work would start at Palmer Road in phase 1 and move toward the back of the property.
Nicola Gioscia questioned the estimated time frames?
Donald Frydryk stated he did not know because the removal of the material would be driven by market needs for material in area.
Nicola Gioscia questioned what happens if the need is not there?
Donald Frydryk stated each phase has been designed to stand on its own and permanent basins are to be installed to maintain pre and post flows. Phase 1 will stand alone whether the building is constructed or not. Regulations allow only so much area to be open at one time.
William Donovan stated the property is zoned industrial.
Kevin Haley stated the property is abutted by land zoned RL to the rear, on the south side the land is zoned GC and across the land is zoned Industrial. On the north side of the property the land abutting is zoned Residential and in order to minimize impacts to residential areas that area of the property will not be touched.
William Donovan stated Tighe & Bond based on their experience of similar sites in Monson normally recommend nothing greater than a 3:1 slope.
Donald Frydryk stated anything less than a 2:1 slope obviously cuts down on the building envelope but it would also eliminate the storage area. The advantages of this site is that the area above on the west side drops down to the old quarry rail road so there will be no flow back down on the slopes.
William Donovan questioned if he would be correct in saying that the work is moving laterally?
Donald Frydryk stated that was correct the shape of the land dictates that and it also lends itself to reducing the amount of land that would be open at any one time.
Donald Frydryk made a written request for a continuation to October 26, 2006 at 7:45 P.M.
David Beaudoin made a motion to continue to October 26, 2006 at 7:45 P.M.
Nicola Gioscia seconded the motion.
It was so voted unanimous.
9:10 CONTINUATION OF A PUBLIC HEARING FOR A SPECIAL PERMIT FOR EARTH REMOVAL 181 WILBRAHAM ROAD.
PROPERTY OWNER KEVIN PHILLIPS.
CASE NO O – 2005
MEMBERS VOTING: William Donovan, Nicola Gioscia, David Beaudoin, Kevin Biermann and Frank Carey.
ALSO PRESENT: Kevin Phillips, Suzanne Kelley, Douglas Kelley, Philip R. Wallander, Ronald Fussell, Nathan Phillips and Kevin Haley.
William Donovan stated the public hearing for a special permit for earth removal was convened for the first time on October 27, 2005 at 8:15 P.M. Over the course of almost a year the hearing has been continued with the agreement of all parties concerned. At the Board’s meeting on July 27, 2006 Mr. Phillips requested a continuance because Glenn Riddle, Tec Environmental was in the process of developing a planting plan and Michael Petras had been hired to conduct a wildlife study.
The Board felt at that time the proceedings had dragged on for too long but did agree to one last continuance and granted a continuance to the September 28, 2006 meeting to allow Mr. Phillips sufficient time to gather and submit the outstanding documentation. The Board asked Mr. Phillips to submit the material a couple of weeks before the hearing to give the members an opportunity to review it.
The Chairman reconvened the hearing.
Kevin Phillips submitted plan showing details of the proposed retaining wall. The slopes are 2.2 – 1 with a six foot bench for the machinery removing the material. Mr. Phillips stated he had submitted everything recommended by David Loring, Tighe & Bond Consulting Engineers, detailing of the retaining wall, drainage calculations, soil borings and 2.2 – 1 slope with a bench.
William Donovan stated the Board still does not have any information as to the rate of material removal or duration of operations. Will the operation be a constant one until all the material is removed or will it be extended over a period of time? If the length of time it has taken to get some of the details of this operation is any indication, the actual earth removal operation could go on for years. Mr. Donovan questioned why the applicant insists on a 2 –1 or 2.2 – 1 slope? Mr. Loring in his report of December 14, 2005 recommended a maximum slope of 3-1 with contour benches constructed along the slopes at 50’ intervals to prevent unraveling of the embankments. Additionally he noted that because the disturbance exceeds one acre a filing of a Notice of Intent under the
Environmental Protection Agency’s (EPA) National Pollution Discharge Elimination System (NPDES) program was required. A copy of the filing should be provided to the Board.
Kevin Phillips stated in Mr. Loring’s report dated June 16, 2006 he stated that a 2 –1 slope with an six foot flat bench was preferable to a 2.2 – 1 slope. The plan submitted this evening proposes a 2.2 – 1 with a six foot bench.
William Donovan stated Mr. Phillips omitted a crucial part of Mr. Loring’s response. David Loring wrote “The applicant’s representative proposed a maximum slope of 2.2 – 1. Our response was that if such a slope was permitted, we would prefer benches be provided with a 2:1 maximum slope rather than a continuous 2.2:1 embankment slope”. Mr. Loring is saying if the Zoning Board were to allow a 2 – 1or 2.2 – 1 slope he is not recommending such a slope. David Loring made his recommendation known in his report dated December 14, 2005, General Comments (4) “The finish grades indicate continuous slopes at 2:1. Based on experiences at other sites in Monson, finish grades at this steep a slope in the native materials are problematic to stabilize
and maintain. We would recommend a maximum slope of 3:1 with contour benches constructed along the slopes at 50’ intervals to prevent unraveling of the embankments”
William Donovan questioned why the plans submitted to the Board tonight showed slopes in excess of 3-1 when the Board has made it clear throughout the hearings it would be guided by David Loring’s recommendations and wanted to see a plan showing a 3-1 slope?
Kevin Phillips stated a 3-1 slope would not give him enough of a back yard and financially would not be worth it. He stated he has complied with the minimum buffer from abutting properties of 15 feet and has submitted a planting schedule.
William Donovan questioned what was proposed regarding the disposition of boulders and tree stumps and where was a schedule of work detailing the rate of removal of the material and length of time of the it would take to complete the project?
Kevin Phillips stated he thought the Zoning Board determined what happened to the boulders and stumps. He stated he is just a homeowner trying to enlarge his back yard and at this point did not have a contractor lined up so could not say how long the earth removal would take or how the material would be removed or the rate of removal.
William Donovan stated it is up to the applicant to tell the Board how he proposes to dispose of stumps and boulders. The Board would say they must be disposed of but it is the applicants’ responsibility to detail the “how”. He stated speaking as one member of the Board when voting to approve a petition it is with the certainty that what is proposed would be conducted in a professional timely manner and would not adversely impact abutting property or the quality of life for abutters. The information submitted to the Board and the time it has taken does not inspire that certainty. It is the Boards’ experience that anything less than a 3-1 slope is extremely difficult to maintain.
David Beaudoin stated he agreed with William Donovan. He stated the restoration plan that was submitted indicates that plantings 18” tall of creeping juniper, mountain laurel, and sweet fern and white pines 3 ‘ to 4’ tall are to be used to revegetate the slopes. The vegetation and trees that are there have been undisturbed for years. The size of the plants suggested would take years to establish the type of root system that exists now and holds the slopes. Additionally what is the spacing between the plants and are they sufficient in number to hold the types of slopes proposed by the applicant along with the native wildlife seed mix proposed?
Frank Carey questioned if the Board approved the special permit when would the work start and when would it be finished?
Kevin Phillips stated he did not know because he had not hired anyone for the job. He stated the Monson bylaw stated the permit would be issued for one year. If the Board approves it and the work is not completed in one year he would apply for an extension.
Kevin Biermann stated he did not believe adequate information was submitted and was opposed to going against the recommendations of David Loring, Tighe & Bond.
Nicola Gioscia stated he agreed with the other Board members.
David Beaudoin moved to close the hearing at 9:50 P.M.
Nicola Gioscia seconded the motion.
It was so voted unanimous.
The Board discussed the petition and the information provided.
David Beaudoin moved to deny the special permit for earth removal at property located at 181 Wilbraham Road, owned by Kevin Phillips for the following reasons:
David Loring, P.E. Tighe & Bond Inc. Consulting Engineers in his report to the Board dated December 14, 2005 recommended a maximum slope of 3-1 with contour benches constructed along the slopes at 50 foot intervals to prevent unraveling of the embankments based on his experience of other sites in Monson and the native materials. Throughout the review process the Board has consistently asked the applicant to submit a plan showing a maximum of 3-1 slopes. The Board accepts the conclusions of David Loring that anything less than a 3-1 slope would be difficult to maintain and could adversely affect abutting properties.
The applicant did not submit a construction schedule detailing the rate of removal of the material and the date of the completion of the project. The parcel of land in question is zoned Rural Residential and is surrounded by existing homes a protracted earth removal operation would subject the abutters to noise and dust pollution that could extend over several years.
A soil boring log was submitted dated May 24, 2006 indicating soil conditions at various depths but the plan did not show the location of the soil boring or if more than one was performed.
Based on the documentation submitted and testimony given during hearings that extended over 11 months the Board is not confident the applicant fully understands the ramifications of the project or impact it could have on abutting properties and the residents quality of life. The applicant purchased the property with the topography as it exists today, what is proposed is an extreme measure to gain a larger backyard.
Nicola Gioscia seconded the motion.
Each voting member was polled individually. It was so voted unanimous.
Voting to deny the special permit: William Donovan, Nicola Gioscia, David Beaudoin, Kevin Biermann and Frank Carey.
David Beaudoin moved to adjourn at 10:10 P.M.
Nicola Gioscia seconded the motion.
It was so voted unanimous.
Respectfully submitted,
Linda A. Hull
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