CONSERVATION COMMISSION
Town of Monterey, Massachusetts
MEETING DATE: June 8, 2009
Present: Richard Andrus, Timothy Lovett, David Dempsey and Christopher Blair
Also present for parts of the meeting: Syd Smithers, Laurily Epstein, Mike Kulig, Chuck Schnell, Steven and Rita Schwartz and Scott Jenssen
The meeting convened at 6:10p.m.
Levkoff – 26 Eaton Rd – WPA & SMA Enforcement Order (D. Dempsey is the project manager)
Tim Lovett recused himself from this continued hearing. Rick Andrus read an opening statement/recap into the record prepared by him from all of the Commission members with regards to the events surrounding the Levkoff violation and enforcement order which included the following points:
- Commission confirmed that at the 1st enforcement order meeting Mr Levkoff was gracious enough to apologize and accept responsibility for the violation at 26 Eaton Rd. Through his attorney a statement was made that Mr. Levkoff acknowledged the violations and that he would accept remediation efforts as directed by the Conservation Commission.
- At subsequent meetings the Commission felt it was in the best interest to hire at Mr. Levkoff’s expense an outside consultant/analyst to review the remediation efforts and restoration plan.
- Mr. Andrus’ personal opinion is that one of Mr. Levkoff’s representatives, Walter Cudnohofsky downplayed the extent of the cutting to justify it. While a comprehensive outline has been provided by Mr. Cudnohofsky detailing the restoration procedures (which was requested by the Con Comm), he also submitted a personal plea for leniency. The personal appeal seemed to further try to justify the cutting but Mr. Andrus felt that he provided the Board with the first evidence to date that the cutting was in some ways premeditated by some of the design team by making statements like “90% of the cut was intended”.
- It was acknowledged that Mr. Levkoff is free to pursue negligent contractors or consultants to recoup some of his losses but the Commission is only allowed to take reparations through the landowner.
- Various scenarios have been offered by the Commission to rectify the situation but to date the Commission has only been offered plans that show what was originally in the minds of the landscape designers.
- Because of both the advice from New England Environmental stating not to plant on the steep slope and the reluctance by the Levkoff’s to offer significant measures on the upslope areas or at the shoreline, the Commission has decided to pursue a monetary penalty in addition to the plantings that were proposed. This will allow the replanting to move forward and be monitored by an Environmental Monitor.
- This will set a new level of required compliance for all projects, that is also in keeping with past judgment of other violators. The Commission hopes that this will also send a message to both contractors and landowners that even when a series of unintended events come together to create an alteration of a carefully crafted Order of Conditions, there will be consequences. The Commission will try to prevent these occurrences by requiring a stricter adherence to registering and distribution of the orders as well as notification of the Commision before the project starts.
- It is up to the Levkoff’s to follow through with the multi year restoration plan until it reaches completion. The Commission regrets that the Levkoff’s have been caught up in a situation that is not of their making and that they are paying a price for trusting others to do the right thing.
Syd Smithers provided a resume and proposal from Rob Ackroyd to act as the Environmental Monitor on the Levkoff site. They’ve requested that any monies left over from paying New England Environmental should be applied to Mr. Ackroyd’s bill. The duties and scope of responsibilities of the Environmental Monitor were reviewed as well as the expected number of site visits to be made by the Monitor. The Commission agreed that Rob Ackroyd was an acceptable choice for the position of Environmental Monitor and they agreed on the number of site visits for Phase I. Comments from the audience were welcomed on the choice for Environmental Monitor. Planting dates were agreed to as well as the chosen contractor.
The site visit made by the Con Comm with Mike, Chuck and Steve and decisions made from it was reviewed. Stakes were positioned on the property which matched a map shown during the meeting. There will be 15 large trees planted and stumps projected to re-grow have been plotted. The Commission noted that there are already stump re-growths that are about 1 foot tall.
Syd Smithers stated that he expected the Enforcement Order to be “closed” seeing that the applicant has provided all of the documents requested by the Commission. Since there isn’t a formal “sign-off” on an Enforcement Order the Commission plans to write a letter to be entered into the record which will include the penalty phase which is still being worked on. The Commission plans to draft the letter and have Town Counsel review it prior to it being issued. Once the restoration plan has been “signed off” on by the Commission and the trees have been planted, the building permit will no longer be held up. Mr. Smithers requested that the Commission authorize the implementation of the restoration phase at tonight’s meeting versus having to wait on the
letter.
Mike Kulig presented the current restoration plan that reflected the tree stakes in the field and proposed stumps slated for regrowth, as well as additional silt fencing and an expanded BVW limit. Mr Kulig showed an additional plan that better reflected the number of larger trees cut. Mr Kulig was asked to complete the plan by showing any trees under 5” but over 1-1/2” located in the 100’ buffer.
Of the three phases, the Commission will be signing off on Phase I which will allow the applicant to begin the replanting. Phase II includes other work (beach, dock and storage building); Phase II is still being worked on. Phase III will be implemented after the house is built and includes thinning, some possible vista pruning and landscaping. There are reviews noted in the narratives that will involve the Con Comm making site visits.
A motion was made to approve the restoration plan consisting of the site plan and narrative documents. The motion was seconded and unanimously approved. The Commission asked how the applicant was going to be sure that all contractors had a copy of the approved restoration plan and followed it. There will be a contractor pre-installation meeting held where everyone will be provided copies as well as the Environmental Monitor, Chuck Schnell was designated as point man for this meeting and the phase 1 overview.
Syd Smithers thanked the Commission for their due diligence. Tim Lovett returned to the meeting at this point.
Schwartz – 19 Buckingham Lane, RDA – to repair or replace drain on north side of home (C. Blair is the project manager)
Steven and Rita Schwartz were present to review the project. There is a curtain drain currently on the property that is allowing water into the cellar. The applicant is asking permission to either repair it or replace it. A contractor hasn’t been hired yet. The project was approved as an N3 and requires that silt fence be properly set up.
Savitt – 221 Beartown Mtn Rd – SMA RDA – SMA09-04 – to cut approx. 1 acre from behind house up to the existing septic area (T. Lovett is the project manager)
Scott Jenssen, representative for the Savitt’s was present to review the project. Scott felt the area was questionable as to whether or not it actually was in the Scenic Mountain Act area but the town map shows it being close so they thought it better to err on the side of caution. The proposed cut is approximately 40 feet from their house to the existing wood line which is being created for a potential garden, pool and yard. The approximate cute swath is 180 feet. The area had been cut previously to install a septic. There are approximately 100 trees over 4 inches in diameter set to be cut. Pictures were provided to the Commission. Because of the proximity (140 feet) of the project to a potential stream the Commission discussed whether or not this would need to be a Notice
of Intent under the WPA. Scott asked how it would be determined if it was an intermittent stream or not. The Commission stated that it is up to the applicant to prove that it isn’t since the documents provided are showing water. The rules that determine whether or not a WPA NOI and SMANOI need to be filed were reviewed. The RDA filed today allows up to a ½ acre of cutting only. Considering the size of the applicant’s property the proposed cut is an aggressive cut and would not fall under a SMA RDA. The Commission told Scott that the applicant can not cut within 200 feet of a river/stream, if they’d like to they’ll need to file a Notice of Intent under the Wetlands Protection Act. The Commission suggested that Scott tell the applicant the areas that they approved cutting in and the amount of trees to cut; if they still want to cut what was initially proposed a Notice of Intent under the Scenic Mountains Act will
also need to be filed. If the applicant is proposing a pool a Notice of Intent will be required. The Commission continued the meeting to July while Scott speaks to the applicant about what they’d like to do. If they want to scale it down a revised scope of work and project plan will need to be submitted.
Wasserman – 40 Elephant Rock Rd – SMANOI – SMA09-03 – to build a tennis court (D. Dempsey) (D. Dempsey is the project manager)
Shannon Boomsma of White Engineering and Craig Okerstrom-Lang of Okerstrom-Lang were present to present the project. The applicant wants to install a tennis court with a screen from the road and neighbors, grading and planting, a cart path and storage shed. Including the existing house there will be less than 2 acres cleared on a 5 acre lot. They’d like to start the clearing and screening plantings in the fall and the project in the spring. The Commission approved the project with special conditions. 1. No lights. 2. Replanting of trees along the road side if they do not survive. 3. Review of roadside screening after 1 year. 4. Review of maintenance perimeter cutting after 2 years.
Reid - Sandisfield Rd, NOI 230-0253 – to develop 2 single family home sites with associated infrastructure (R. Andrus is the project manager)
Mike Kulig, representative for Mr. Reid was present to review the project. A revised form and narrative will be provided to correct the applicant’s name. A Form A has been run through the Planning Board already. DEP comments were reviewed. The Commission would like to make another site visit before making any decisions. The hearing has been continued to the July meeting.
For Discussion:
1. Mail was reviewed which included:
a. A letter from Janet Cohen Feldman about a beaver issue on Brewer Circle. The Commission responded to Ms. Feldman letting her know that if there is a health issue with wells or septics, the Board of Health should be contacted and that if there is a maintenance needed on the shunts already there, the property owner where they are located should be contacted and made aware of the problem. Filing with the Commission is unnecessary.
b. Letter from concerned citizens on West Rd. regarding the proposed 40B development requesting that Monterey hire an independent surveyor to look into the project. The Commission did not respond to the letter as a project has not been submitted to date to comment on.
2. The minutes from 5.5, 5.11 & 5.21.09 were approved as written.
3. The Commission was asked about hydroseeding; in order to give an answer they would need more information on the type of product to be used and the process involved with that type.
4. The Commission reviewed the thoughts on the monetary penalty calculation on the Levkoff violation. The Commission has not released any details to the public yet and want to review the final decision with Town Counsel prior to any statements being released.
Meeting adjourned at 9:45pm
Submitted by: Melissa Noe, Inter-Departmental Secretary
cc: Conservation Commission Board Members
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