CONSERVATION COMMISSION
Town of Monterey, Massachusetts
MEETING DATE: March 9, 2009
Present: Richard Andrus, Timothy Lovett, David Dempsey and Christopher Blair
The meeting convened at 6:15p.m.
Erlich – 26 Northwest Cove Rd RDA to seasonally install and maintain two docks, one floating and one suspended plus a canopy which will all be removed in the winter months (D. Dempsey is the project manager)
This hearing has been continued.
Bach – SMA NOI – SMA09-01 & RDA (WPA) Mt Hunger Rd.- to create a subdivision roadway for a future division of a +/- 26 acre existing residential parcel into four lots. (D. Dempsey is the project manager)
This hearing has been continued. A site visit still needs to be scheduled.
Wasserman – NOI 230-0251 – 40 Elephant Rock Rd – to reconfigure an existing seasonal dock and replace the wooden steps to the dock. (T. Lovett is the project manager)
This hearing was continued to the April meeting at the request of the applicant’s representative.
Levkoff – 26 Eaton Rd. SMA and WPA Enforcement Orders (D. Dempsey is the project manager)
Present: Carl Audia (Construction/Project Manager), Pam Sandler (Architect), Steven Levkoff (Owner), Mike Kulig (Engineer), Steve Freschette (Landscape Contractor), Janet Cathcart, Scott Jenssen, Laurily Epstein, Bonner McAllester, Ed Denham (Consultant Forester), Kenn Basler, Emily Stockman, Lynn Leavitt and Nick Anderson
Tim Lovett recused himself. Rick Andrus gave a history of the project that had been previously approved through Orders of Conditions for Mr. Levkoff of 26 Eaton Rd. The Enforcement Order was issued due to complaints received the weekend of February 21st for work being done on the site. Site visits were made by the Conservation Commission members and it was determined that work had been done that exceeded what was allowed in the Order of Conditions. Meetings were held on February 22nd with the people doing the work on the field and as a result of this the Commission issued Enforcement Orders for the Wetlands Protection Act and Scenic Mountains Act. The Commission agreed it wasn’t necessary to read into record the actual Enforcement Orders.
The Commission stated that it is their duty to enforce the WPA and the SMA. These regulations allow the protection of identified resources: Bordering Vegetated Wetlands, Bank, and slopes greater than 15%. The commission noted that it can require all altered areas be returned to their pre-violation condition or they may revoke or modify the existing WPA OOC and the SMA OOC. If the applicant wishes to appeal these directions today, we believe they cannot appeal them to the Department, but rather in Superior Court. We are identified in the regulations as a credible source in determining what resources have been altered.
Stephen Levkoff stated that he instructed their architect and builder to build a home that respected the beauty of the property and he feels he’s done everything correctly except the execution. He feels that a horrendous mistake was made by a subcontractor and he is willing to do whatever the Commission determines should be done to make it right.
Mike Kulig stated that the area that was cleared was a sapling forest and there was an intention and permit to do some cutting in that area but not the amount that was. The intent was to open up the area to allow the larger trees to open up; due to a miscommunication the area was cleared. Mike states that there is still strong undergrowth keeping the area stable and that no stumps were removed.
Steve Freschette stated that his intention was not to do any damage or harm to the area but that he does take full responsibility for the actions that occurred. He is committed to making sure that this gets put back together professionally. Chris mentioned that this same area had been clear cut 25 years ago and that it had taken it that long to get it to its present state prior to the violation. Mike feels that the current situation will allow them to bring the area back to what it should be. Mike asked the Commission to confirm that the cease and desist issued only applies to the jurisdictional areas of the Conservation Commission and that it won’t affect the owner applying for a building permit. Chris stated that prior to a building permit being issued the applicant has to file a
project review form with the Conservation Commission and that until the problems currently on the table are resolved a building permit shouldn’t be issued. Rick stated that he wasn’t sure that the Building Commissioner agreed with this but that would be looked into.
Given the stability of the site Mike Kulig suggested a weekly visit and photographs to ensure that the ground is still stable. He stated that there are currently 2 silt fences in place at the top of the slope. Their sedimentation narrative is basically to wait and see what happens since the ground right now is still intact and frozen. They plan to come back to the Commission with a restoration plan. Mike stated that the 2 – Orders of Conditions that had been issued in 2008 were recorded in the Registry of Deeds in late February and proof has been forwarded to the Town Hall as instructed by the Commission.
At this time public comments were welcomed. Laurily Epstein (abutter) asked how this happened; she felt that everyone was talking around the situation. The Commission felt the same way and felt that every person working on the property should’ve been provided with a copy of the Order of Conditions which stated that the Conservation Commission member was to be contacted at least 72 hours prior to the project starting (which did not occur). Steve Freschette stated that the job started 3 days before it was supposed to and he was supposed to be there. It wasn’t supposed to happen the way it did. Bonner McAllester noted that “making it better than it was” is a matter of opinion. Chris clarified for everyone what the “contract” (Order of Conditions) was
between the Conservation Commission and the applicant and his representatives. He only referred to areas #2 (sapling forest) and #6 (lawn abutting the wetlands bank). The wetlands OOC supplemental conditions stated:
- #10: area 6 selected tree cutting using existing material. Smoothing, raking, seeding and mulching of this area is permitted. No additional fill. The limits of the bordering vegetative wetlands were to be staked with an iron pipe at each end of the grass area to permanently mark the edge of the wetlands. Work in this area shall be by hand tools; no vehicles or wheeled or tracked machinery to be used.
- #9: Area 2 No cutting of Area 2 within the 100’ Buffer Zone.
In the Scenic Mountains Act supplemental conditions:
- #6: Area 2 Selected cutting of Area 2 outside the 100’ Buffer Zone: leave standing Birch, Beech, Maple, Conifers, and all existing trees 5” ABH or larger. If additional cutting is requested the Applicant shall request it of the Concom and receive the approval or denial of the Concom.
Ed Denham a Consultant Forester and a member of the West Stockbridge Conservation Commission was asked to take a look at the site by the owner and make general observations. Rick stated that the suggestions made were encouraging in 30-40 years when the trees had grown considerably but did not feel that planting small 1-2 inch trees was going to satisfy anyone in the room and it doesn’t replace the big hole that has been illegally created. Bonner asked why you wouldn’t take advantage of the root systems that are already there. Kenn Basler stated he has no doubts that the owners of the property wants what is best for the property, he’s concerned that somewhere along the line control was lost and before a permit is even issued for the house everyone is present again to discuss the damage
done. Kenn stated that this piece of property is a very valuable piece of property to the whole lake and it fits in to the last section of the lake that hasn’t been over developed. It was a shame that it was clear cut once 20 years ago and it’s a shame to see it happened again. He questioned whether or not the person that did the cutting had a scope of work. He stated that this violation has made the neighbors feel that they are going to have to watch every piece of this building process to make sure that nothing else of this magnitude happens.
The Commission stated that they have the option to rescind the Order of Conditions that would’ve allowed the beach and other work permitted there. Laurily thanked the Commission for responding to the complaints so quickly and for notifying the abutters of the meeting tonight so they could attend and have their thoughts heard.
Janet Cathcart asked about the condition that required that there be a meeting 72 hours prior to any work taking place and whose job it was to contact the Commission. Steve Freschette stated that was his job. Janet then asked who he reported to in the scheme of things. Steve stated that he reports to the owner. Janet then noted that this would mean that ultimately it would be the owner who is responsible for making sure the Order of Conditions was followed. She also asked what the remedies were that were available to the Conservation Commission to deal with the violations. Chris stated that as of today it is understood that the remedies or desirable courses of action to pursue are restoration of the work are to its pre-violation state and within that context the Commission is allowed to
revoke or revise the existing Order of Conditions. The ability to fine in situations where there has been a problem is generally the province of the court. The WPA allows for up to $25k in fines for each day of work. The SMA allows for different kinds of fines. Janet asked if legal counsel had been contacted and the Commission has spoken with the Department of Environmental Protection.
The following public comment from the Select Board of Monterey was read into the record:
“The Board has reviewed copies of the Levkoff Enforcement Order’s issued by the Conservation Commission under the Wetlands Protection Act and the Scenic Mountains Act. We are shocked and angered that the applicant showed a lack of regard and performed the activities listed in the Enforcement Orders against what was allowed in their previously issued Orders of Condition. The Board would also support the Commission levying any fines they might deem appropriate.” signed by Wayne Burkhart, Chair and Scott Jenssen and Jonathan Sylbert.
It was asked if the contractor that actually performed the violation, John Fields had been provided a scope of work and knew what was to be cut and not cut and Steve stated yes and that he didn’t follow it, showed up with an extra crew and 3 days earlier than had been expected. Steve said this wasn’t an excuse and he was still taking full responsibility.
Emily Stockman of Stockman Associates who is a wetlands and soils scientist was present. She stated she supplied the Commission with suggestions at the initial hearing. She was wondering if the Commission had given thought to who would be responsible for drawing up the restoration plan noted in the Enforcement Order and their credentials and if there would be a procedure for the Commission to approve that person before a restoration plan was compiled. Her concern moving forward is how the Board can be assured that there won’t be another lapse in communication. She also questioned if the Commission thought at all about incorporating in the restoration plan a chain of command to make sure the lines of communication stay open.
Emily Stockman questioned if erosion controls were in place at the bottom of the clear cut area; they were not. Part of the Enforcement Order is that they need to be put in place. Scott Jenssen asked if the Commission would consider hiring their own forester to make recommendations; couldn’t it be considered a conflict of interest by the owner hiring one to make recommendations that could include cost saving measures for the owner. Scott stated that this didn’t sit well with him. Stephen Levkoff then commented that it didn’t sit well with him that he was being characterized as having performed a malicious act; he stated it was not and that it was a mistake.
Pam Sandler questioned why the Levkoffs would let the Fire Company use their site three times to which the Commission responded that it had nothing to do with the Commission issues before them. Chris stated that if a civil conversation couldn’t be had and if someone couldn’t stand the heat, they should leave the room. The Commission has to have the ability to hear opinions from others that may differ from their own. Stephen Levkoff stated that he did not do this intentionally and would not be spending as much money as he has already with local people if he didn’t want to be in Monterey. He resents the contempt shown at the meeting.
Janet Cathcart stated that it was important to not characterize people and to stick to the facts at hand. She felt that there were ways to find out if this was done intentionally or not which would include who gave what orders. Rick stated that because the Commission is voluntary it wasn’t efficient to begin that type of investigation. Kenn Basler asked how we make sure this never happens again with a future project anywhere in Monterey.
Bonner McAllester complimented Scott’s angry letter and felt that it conveys how a lot of people feel when something like this happens. Kenn stated that the negative comments he’s heard from people coming in the Monterey General Store have been overwhelming. Bonner questioned how the Commission and applicant will reassure the people that are very upset by this violation. Dave Dempsey stated that there are no problems, only solutions and the task at hand right now is to find the best solution.
Nick Anderson, employee of Berkshire Engineering and an abutter, stated he was skeptical at first when the proposed project came before him at Berkshire Engineering but he can say with certainty that he does not feel that this was an intentional act on Mr. Levkoff’s part.
Chris stated that he has given a lot of thought as to what can be done here. Most of the people that are involved here have a license issued by the State that complaints can be filed on. The Commission understands that there isn’t a license held by John Fields and therefore what recourse would the Commission have. Chris stated it might be that Monterey is growing beyond its need for a part time volunteer Conservation Commission and we might need to look at hiring a part time Conservation Commission agent. Chris thought it best to get back to the issue at hand to replace or restore the violated area. Chris stated that the Enforcement order gives the Commission the legal right to come onto the property to observe the work being done due to the nature of the violations and this is clearly
stated; permission is no longer needed to come onto the property. Chris mentioned that the Commission may ask the applicant to foot the bill for a Monterey outside consultant to review what the applicant is going to submit. The Commission was not in favor of trashing the original filing and making the applicant file again but was in favor of amending the current Orders of Condition.
The Commission felt that a better method needed to be used to identify the trees that are staying and those to be removed. The Commission confirmed that no further work is allowed at this moment. The Commission addressed the issue of fining the applicant; Rick felt it was beyond the Commission to impose this in an achievable way. Chris noted that as he understands it on the WPA side it is the Attorney General and Office of Executive Affairs that levy fines and this only happens if someone appeals the Commissions decisions unless there were local bylaws that allowed the Commission to fine. The Commission is still researching the Commission’s ability to fine on the SMA side.
Bonner asked if the entire project including the building of the house would now be held up until the violation is remedied. This is something that the Commission needs to research and discuss. Pam Sandler stated that the site for the house is out of the SMA and WPA. Chris stated that the Commission could hold up the building permit because they would have to assume that any projects outside the SMA and WPA boundaries may have a negative impact on those areas. The Commission’s sole and only goal is to complete the Enforcement Orders and make sure it’s restored to their satisfaction.
Carl Audia, Construction Project Manager stressed that nothing here was done maliciously and that as the builder on the project he welcomes any calls from anyone and if it’s appropriate will allow site visits to anyone interested in monitoring the activity. Kenn Basler asked to organize a meeting with the neighbors to answer some concerns they have.
The Commission is going to write down the things they will be requiring to satisfy the Enforcement Order and mail it out.
Misc:
1. Mail was reviewed.
2. Minutes from 2.9.09 were approved as written.
3. An informal presentation was given by Shaun Tucker and Mike Parsons regarding Shaun’s plans to develop a property at the North end of West Rd in Monterey by virtue of a 40B affordable housing project. They have met with the Select Board, Planning Board, Board of Health, Building Commissioner and the Affordable Housing Committee (not a town appointed committee). The only wetland that Mike saw on the property will be set aside as a common lawn area (GIS maps were provided), there will be work performed in the buffer zone of this project. The 40B process allows variances from the local zoning process it does not allow variances from state regulations and Wetlands Protection Act. The Commission asked about the status of the road and they responded that it has to be upgraded all the way
up and Jim Scalise is working on a plan. The Commission asked how many houses were up there now and Mike and Shaun thought there were about a dozen. With any luck Shaun hopes to start working on the road in late summer. The Commission asked if they would have a chance to give input on the road improvements, Mike said they would when it went before the ZBA. Scott Jenssen questioned what the time frame would be to build the 4 houses at a time; Shaun stated that it would be approximately 9 months to which Scott stated that this means it could be a 4 year construction project. Scott asked whether or not he had thought about the environmental impact this will have on the neighborhood and neighbors. Daniel Moriarity also had questions about the number of units and whether or not they would have access to Lake Buel; Shaun stated that he has the option to sell these homes with lake rights through the right of way across the street. The affordable
houses will be sold in the $160,000 range (approximately); there will be a lottery and restrictions that are applicable to selling these homes. The other homes will be market rate in the mid $300,000 range.
4. A response was written to Mr. Cutick regarding his request to replace his damaged dock; a copy of his Chapter 91 license should be submitted to the Con Comm prior to a decision being made.
Meeting adjourned at 9:45pm
Submitted by: Melissa Noe, Inter-Departmental Secretary
cc: Conservation Commission Board Members
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