CONSERVATION COMMISSION
Town of Monterey, Massachusetts
INTERIM MEETING DATE: 5.21.09
Present: Richard Andrus, David Dempsey, and Christopher Blair
Also Present: Emily Stockman, Pamela Sandler, Syd Smithers, Walt Cudnofsky, Mike Kulig, Chuck, Laurily Epstein, Carl Audia, Pam and BJ Johnson
The meeting convened at 6:10p.m.
This was a continuation from the 5.11.09 meeting to continue discussions on the Levkoff Enforcement Order. Rick gave an overview of the recent site visit that he and Chris made to document the extent of the cutting; the Commission marked trees with a bright hot pink paint. Updated documents were provided. The Commission’s draft matrix is still in the draft phase. The Environmental Compliance Monitor job description is also still in the draft phase. Currently the Commission does not feel comfortable with Mike Kulig (the applicant’s engineer) acting as the Environmental Monitor.
Syd Smithers provided several documents to the Commission and gave his opinion on the Commission’s abilities to follow through on the Enforcement Order. The applicants have no objection to hiring a qualified Environmental Compliance Monitor that is mutually accepted by the applicant and Commission. The Commission stated their main goal is to have someone on-site to monitor so that the burden doesn’t fall on the voluntary Commission members. Chris noted that erosion control is the responsibility of the applicant and the people they hired and doesn’t need to be a qualification of an environmental monitor.
Walt Cudnofsky questioned the Commission’s method for determining the 100 ft buffer zone when counting the stumps. Walt provided a revised remediation plan and other documents to the Commission, one of which is a point by point response the New England Environmental (NEE) report. One thing Walt disagreed with NEE on was the amount of sun exposure. Two suggestions were offered to remove the invasive species. The proposed access route will be roughly between the viewing station and a cluster of trees; items will be winched down in a ball cart with the items strapped in, there will be a reinforcement fabric underneath it. Chris asked who the site contractor was and the applicant stated they did not have one yet. The Commission noted that they will need to be identified
asap.
The applicant asked why the Commission was requesting that 8 white pines be planted at the top of the slope. The Commission stated it was being requested in an attempt to regain some of the area that was and will be lost and to offset the fact that what would’ve been there and can’t be replicated. The Commission feels it will increase the wooded and habitat area. The applicant feels that the pines will not thrive there and that they will continually have to be replaced. The applicant also stated that this will be a construction access as well as the homeowner’s only lower level access. The Commission feels that the trees requested will soften the lines of the house when viewing from the lake.
The applicant does not feel that trees should be planted at the viewing platform because it is really steep below it; the stated that they planted two trees near it and feel that is adequate. They also noted this viewing platform if the Levkoff’s release valve where they can get better views. They stated that the portion of the forest that hasn’t been touched does need to be thinned and maintained to encourage growth. Walt pointed out that he personally didn’t feel any additional penalties should be assessed when the Commission reaches the penalty phase of their matrix as all the work done to date and all the work it will require going forward will be penalty enough. He stated that the cut in the upper slope and not the buffer zone was exactly what they had intended minus the
unfortunate circumstance that resulted in 15 trees being cut that shouldn’t have been but will be replaced.
Emily Stockman commented that the difference in stumps counted is still troublesome. She likes that the plan that points out the stumps that will regenerate. She reiterated that there is no cutting, thinning or vista pruning allowed in the OOC in the 100ft buffer zone. She commented on the penalty phase and from an environmental standpoint since you are limited to what you can restore and that a 1:1 restoration isn’t possible she feels a penalty is warranted. Emily is under the understanding that the representative from National Heritage will need to give her final blessing on the plan; Syd Smithers disagreed with this and stated that they are only to provide a copy but her approval isn’t necessary.
Discussions ensued over whether or not the Commission should amend the current Order of Conditions or proceed under the Enforcement order or if the changes were substantial enough to have the applicant file another NOI. The “viewing platform” and its status, current and future, were also heavily discussed.
BJ Johnson noted that the penalty phase should not be looked at as a “punishment”, the whole situation is a perception and how the Commission handles the perception is important. You don’t want anyone in the future to perceive the licensing/permitting phase as the “punishment” and do what they wanted and then come in for their slap on the wrist in the “penalty phase” which may have been perceived from past issues like this one as less severe than what the permitting process would’ve been. This perception will spread into other towns as well, it isn’t limited to Monterey.
A member of the public stated that the remediation process for the Levkoff situation seems unfair compared to what happened when there was a violation on Steven’s Lake about eight years ago. Dave Dempsey noted that the property on Steven’s Lake was an RDA and doesn’t have the same processes, clout, mechanisms and ramifications as the NOI process does. He also noted that the situation was entirely different. Pam Johnson said that she felt that the Commission should make sure that the papers get the correct information and that someone provide them with a cost of the remediation process to Mr. Levkoff so that any future violator’s will understand that the remediation is costly. She also noted that she doesn’t think that the Levkoff’s made the error, it was someone
down the chain that did. She felt that the area where the tornado came through is an unhealthy thicket now because it wasn’t selectively thinned and maintained and if the Levkoff’s follow the suggested remediation by the Commission it will end up the same.
Mr. Levkoff noted that this was all a mistake and he wants it made clear that they have been extremely accommodating, willing and wanting to start the remediation process. He wanted it put it the record that they gave their property to the fire department to practice on and that him and his wife have participated in the community long before they purchased their house.
Someone in the audience asked that for the sake of perception that the number of trees and the number of saplings cut be defined. She stated that saying that 120 trees were cut is inaccurate as some were only “yeah tall”. Chris clarified that a visual screen of 8,000 square feet containing tall trees were cut and it’s a visual affront to the community; the “landscape” & “visual screen” is not owned by the owner, it’s the community’s. Rick agreed with all the points made but stated that an acceptable remedy has not presented itself yet and its something the Commission has to work through.
The Commission wanted time to review the materials they were given and come to a decision regarding whether everything will be dealt with all at once or in the phases suggested by the Commission in their draft matrix.
Chris asked to skip ahead to Phase 3 regarding the storage shed and how materials will be brought down. It was stated that the lumber will be hand carried down. All the activities will be low impact. Contractors have not been chosen yet because the applicant wanted to know what they were going to be required to do before seeking bids. A site visit will be scheduled to stake the trees and the applicant is hoping to gain approval from the Commission at their June meeting. The Commission decided that they are only focusing on the restoration segment right now. Rick stated he doesn’t feel that the act was a malicious one but the Commission will still need to discuss a penalty phase which may be a donation to an environmental fund or possibly creating a Conservation Commission
Restriction Fund; town counsel will be consulted on this.
The applicant will have complete documents for Phase 2 and 3 at the next meeting on June 8th.
On another note, Pam Sandler and Carl Audia hope to have an amendment to present to the Commission for the Alpert property at the June meeting.
After everyone in the audience left, the Commission reviewed correspondence from town counsel regarding the Commission’s authority seek a fine in Superior Court and openly discussed their ideas on assessing a penalty and how to come up with a fair and justified penalty based on a full restoration that can not be accomplished due to the terrain.
Meeting adjourned at 9:00pm
Submitted by: Melissa Noe, Inter-Departmental Secretary
cc: Conservation Commission Board Members
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