CONSERVATION COMMISSION
Town of Monterey, Massachusetts
MEETING DATE: May 11, 2009
Present: Richard Andrus, David Dempsey, Timothy Lovett, Judith Bach and Christopher Blair
The meeting convened at 6:00p.m.
Jackson – 179 Mt Hunger Rd – SMARDA09-02 – to construct a screened in porch on an existing single family home (C. Blair is the project manager)
Mike Parsons and Greg Wellenkamp, representatives for the Jacksons were present to review the project. The project was approved as submitted with the condition that the ornamental tree at the building corner must be left in place.
Erlich – 26 Northwest Cove Rd revised RDA to seasonally install and maintain a dock which will all be removed in the winter months(D. Dempsey is the project manager)
A revised RDA was submitted for the originally submitted RDA. Dennis Downing, Attorney for the Ehrlich’s was present to review the project. This was approved as a N2 as submitted.
Ehrlich – 28 Northwest Cove Rd – RDA – to seasonally install one floating dock plus canopy which will be removed each winter (D. Dempsey is the project manager)
Dennis Downing, Attorney for the Ehrlich’s was present to review the project. This was approved as a N2 as submitted.
Ferraro – 12 Sylvan Rd – RDA – rebuild and reconfigure an existing dock by adding a 6’x10’ leg to form an “L” shape (T. Lovett is the project manager)
Mark Ferraro was present to review the project. The project was approved as a N2 as submitted.
Bach – SMA NOI – SMA09-01 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)
Judy Bach recused herself from the table. This hearing was continued to allow the Commission to check with Town Counsel on a few matters. Town Counsel was unable to respond prior to this meeting but it was confirmed that the clearing proposed puts the applicant over the threshold allowed (1/2 acre per lot). An environmental impact statement was provided to the Commission. Once each individual lot is ready to build they will need to file again for that project with the Conservation Commission. The applicant is meeting with the Planning Board this Thursday (May 14, 2009). The hearing was closed so that the Commission could begin deliberations. The applicant will provide M. Noe with the corrected square footage numbers.
Levkoff – 26 Eaton Rd – Scenic Mountain Act and Wetlands Protection Act violations (D. Dempsey is the project manager)
Also present: Pamela Sandler, Mike Kulig, Elizabeth Goodman, Emily Stockman, Laurily Epstein, Steven & Susan Levkoff, Syd Smithers, and others not identified
This is a continuation from previous Commission meetings regarding the restoration plan submitted. Comments from the consultant (New England Environmental) were provided to those requesting a copy. The Commission began by giving a summary of what they’ve been doing in addition to meeting with the consultant. The Commission (3 members) made a site visit to check the stump count and found more that would’ve remained under the OOC as written than did (another 30 stumps), a plotted plan was provided. Pictures of the stumps (16 of them) were taken that were not noted on the restoration plan submitted. A matrix of where the original OOC stood and where they stood after the Enforcement Order was issued and going forward to resolve the Enforcement Order. At this time it wasn’t
ready for release as it was still a draft.
The overriding idea from the Commission is that there will be an Environmental Monitor on site for the remainder of the project. Phase I will be the restoration plan which has to occur, be implemented and concluded before anything else can go forward. Phase II is all of the construction activities which includes the house, path, beach, dock, etc; anything that requires shovels, hammers, etc. Phase III is all of the plant matter activities; thinning, vista pruning, selective cutting and so forth. Phase IV is the penalty assessment phase; as of right now the Commission is still investigating this option and the legalities.
The Commission discussed the planting of new materials. Under the original Order of Conditions there were no new materials to plant proposed. Under the Enforcement Order the applicant proposed the planting of 15 trees. The Commission thinks there should be an additional 45 trees to achieve the restoration of the cutting that was done. The consultant advised the Commission that no trees should be planted on the steep slope that is 1:1 and more than 45 degrees due to the probability of them surviving or causing more damage. The Consultant believes that the natural root infrastructure in that area needs to be protected because the stumps are going to resprout and revegitate at a faster rate than newly planted materials.
Chris Blair has spoken with the National Heritage Foundation regarding communications they’ve sent and it’s his understanding that their involvement in this has grown and they supersede any other boards/commissions decisions.
Phase I focuses on the restoration; Chris stated that the Heritage Foundation has some issues with it. They take the position that they want to see that whole area returned to the state it was before the violation. There was some discussion about the various interpretations of the Heritage’s letter. The 2 things the Commission left out of Phase I was stabilizing the burn pile areas which should include removing the debris there and restabilizing the areas with an appropriate seed mix.
Phase II: Construction Activities which the Commission is including with the house also include the trails, beach, storage building, permanent markers and viewing platform. The Commission wants to see bigger scale plans with enlarged sections. The Commission hopes to yank all of the existing ribbons and then walk the site with the applicant or representatives and then remark them in an understandable manner. The beach area shown on the plan is too far east in the Commission’s opinion and they are proposing moving the beach square westward so that the square stone bound is in the middle of the southern border; this preserves a couple of hemlocks and minimizes the activity down there. The storage building should be staked out and a larger scale plan provided. The Commission also wants BVW
markers placed on the property. At both ends of the property the Commission wants to figure out a trade off to perform restoration or mitigation since replanting is not advisable in some of the areas according to the consultant.
The viewing platform; the consultant thought this odd because there are saplings in front of it being managed to be full forest, so essentially there is a platform with no view. He also suggested that the physical spot is a good spot to plant.
The Commission is searching for a metric of what selective thinning is seeing that the last time selective thinning was allowed, the area was mistakenly clear cut. The Commission is suggesting 15%, no more than one thinning a year. The Consultant said that as you thin you’ll be able to pick out trees that will thrive and prosper. All of the areas in Phase III will need a submission of a plan for vista pruning after the house is built. The Commission is looking for a narrative and physical plans that really describe what is going on in each area for more clarity. If trees are proposed the mission to get them down there will need to be noted, same goes on how the sand will get to the beach. The methodology to achieve each activity will need to be clear. The consultant does not
recommend dragging things up or down the slope.
The penalty phase that has been brought up amongst the Commission members; town counsel has been contacted regarding this but a response has yet to be received. A proposal was made by one member that gave the scenario that if you had to replace all the trees that had been removed, it would cost xx amount of dollars, in the meantime if only xx amount of the trees are actually going to be allowed you take the figure of what it would’ve cost minus what was spent and the difference is a tax deductible donation to some organization that makes sense based on the violation; town counsel hasn’t commented on the legality of this yet.
The applicant would like to start on Phase I as soon as possible but are looking for clarification that the Commission is looking for further submissions prior to letting Phase I begin. The Commission agreed that they feel that more trees were lost than were noted on the restoration plan. The restoration phase should be on one plan. The applicants asked if the Commission wanted to approve the Environmental Monitor; they suggested finding someone and letting the Commission approve them. An outline that Chris found of the process that another town uses was passed around.
At this time public comments were taken. Elizabeth Goodman asked that a stump count be taken in the 100ft buffer since no cutting was allowed there and the public believes that there was cutting performed there. There was a concern about the National Heritage’s jurisdiction and their comments made. It was asked that the Commission clarify with the National Heritage on the thinning and vista pruning comments and restrictions made by them. It was suggested that any permission granted by the Commission for future cutting, thinning or vista pruning be made with the condition that permission must also be given by the National Heritage; the Commission agreed. The difference between a restoration order and an amended order of conditions was discussed. It was suggested the DEP has a set
of qualifications that an Environmental Monitor has to meet based on the needs of the site.
Emily Stockman’s main concern was with the stump tally and National Heritage’s position on the matter. National Heritage was unable to make a site visit but was provided pictures and a report by Oxbow Associates. A copy of Oxbow’s report will be provided to the Commission. Emily complimented the Commission on an excellent job of handling the situation since the violation was made.
Laurily Epstein questioned whether or not the environmental monitor should be a neutral party rather than someone already working for the applicant.
Mr. Levkoff noted he was puzzled on the role of the consultant, abutters, the attorney representing the 9 abutters and so forth. He doesn’t understand why the 9 residents are so hell bent on penalizing him on his transgressions. He also doesn’t understand why other supposed residents in the community want to penalize him and stated it doesn’t sit right with him. He wanted clarification on the viewing platform being taken down and trees being planted in its place. Susan Levkoff then explained who she and her husband were and how they came to purchase this property. Rick thanked her for her summary.
The restoration plan will need to be isolated and it will need to be decided tonight what the process will be. Rick stated that the 15 trees on the restoration plan will be good and stated that the goal in the end is to achieve a good canopy coverage. The Commission agreed that there will need to be an amended order of conditions for the areas of the WPA and SMA. Mike Kulig questioned this and if they would then be locked up with the house project because the work in the buffer zone would be reviewed again. He felt the changes under the WPA regulations were minor and wouldn’t trigger filing an amended NOI. He asked if the house could be broken out of the picture and thus allow that project to begin. The Commission asked if there was anything in their proposal made tonight that was
a no go with the applicant and they couldn’t answer since numbers were missing from the Commission as they were still awaiting responses themselves.
Elizabeth Goodman explained her client’s perspective and that this was a public process. She’s concerned that if the restoration plan is signed off on what effect that has on the Commission’s ability to assess penalties after that. She felt they needed to determine their penalty assessment prior to signing off on the restoration plan. She requested that the Commission take the most caution. She clarified that she may seem focused on the penalty phase because as the Commission noted previously the deterrent needs to be present so that any future violations by any residents will understand the seriousness and the consequences involved.
The Commission agreed to continue the hearing until Thursday, May 21st at 6pm. The Commission is going to follow up with Town Counsel for guidance.
Kern - Enforcement Order – 4 Art School Rd. – work conducted in a buffer zone without a DA or OOC; required to submit a restoration plan prior to the May 2009 meeting (C. Blair is the project manager)
Mike Parsons, Frank Kern and Brett Kaminsky were present to review the restoration of the existing, temporary gravel driveway at 4 Art School Rd. RDA’s were previously filed but did not include the driveway. The disturbed are appears to be near a perennial stream. The applicant will contact the Conservation Commission prior to starting any restoration activities. They will also install a silt fence and erosion controls, remove gravel from the driveway to reveal underlying fabric, remove fabric, topsoil the disturbed area and rough grade and then seed and mulch disturbed areas. The applicants stated that if a permanent driveway is sought for the same location they will file a NOI. The owner states that prior to the disturbance it was grass and they only brought in two inches of
topsoil. The Commission discussed possible penalties for the violation. The Commission felt that what was submitted satisfied the Enforcement Order.
For Discussion:
1. Mail was reviewed.
2. Minutes from 4.13.09 & 4.27.09 were approved as written.
3. The Commission reviewed the Kamenstein file (18 Woodland Dr) to see if their restoration jived with a recent site visit made.
4. The Commission reviewed the ZBA special permit application for Wodecki and commented that the project does not affect any resources and therefore does not fall under the Commission’s jurisdiction.
Meeting adjourned at 10:00pm
Submitted by: Melissa Noe, Inter-Departmental Secretary
cc: Conservation Commission Board Members
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