Salem Conservation Commission
Minutes of Meeting
Date and Time: Thursday, June 9, 2011, 6:00 p.m.
Meeting Location: Third Floor Conference Room, City Hall Annex, 120 Washington Street
Members Present: Chairwoman Julia Knisel, Amy Hamilton, Dan Ricciarelli, Michael Blier
Members Absent: Carole McCauley, David Pabich
Others Present: Tom Devine, Conservation Agent
Recorder: Stacy Kilb
Chairwoman Knisel calls the meeting to order at 6:18PM.
Meeting Minutes—May 12 and May 26, 2011
A motion to approve the minutes is made by Ricciarelli and seconded by Hamilton; it passes unanimously.
There are not enough members present to vote on May 12 minutes so those will be moved to the next meeting.
Continuation of Public Hearing—Abbreviated Notice of Resource Area Delineation—MRM Project Management LLC, P.O. Box 388, Beverly, MA. The purpose of this hearing is to discuss the proposed delineation of resource areas and exemptions from riverfront area regulations for the property located at 60 & 64 Grove St. and 3 Harmony Grove Rd. (former Salem Oil and Grease).
Here for the applicant is Bob Griffin of Griffin Engineering. He shows an “Existing Conditions Plan C-2” dated 4/28/11. Tonight’s site walk was abbreviated due to weather but did happen. He outlines again the wetlands that are on site. The canal and bank are well defined and flagged. The absence of wetland vegetation was clear, however, there is a stand of knotweed along the river. The other resource is land subject to coastal storm flowage at a 10.5’ level. An NOI at that elevation was also used a few years ago across the street.
There were some questions about flood elevation which he addresses. Pabich had asked about a straight-line extrapolation of flood elevations. Mr. Griffin passes out an illustration: “Straight-line Extrapolation of Flood Zone Elevations.”
This is zone A to Zone A-2 with an elevation of 10 in Salem; Peabody shows an elevation of 10.8, so if the two are connected (North St. to the Peabody town line) it would be 10.5-10.7 on their property. He is not sure that this is the appropriate method to use.
There were also questions on the profile of the North River in Peabody, extrapolated into Salem.
Illustration: “Extrapolation of Peabody FEMA study”
This is a straight slope to the channel, which has a uniform shape. The 100-year flood elevation would be 6.7’ of water at the Peabody line; at their site it would vary from 7.2 to 9.2. The Mother’s Day 2006 storm is shown as well and elevations vary from 7.8 to 10 at their site. He feels these estimates are conservative and will work.
Ricciarelli asks what the Salem Engineering department thinks, but they have not been consulted. Chairwoman Knisel asks about elevations on the draft FIRM maps, but they have not been determined. No new calculations have been done. Hamilton asks about historical studies of the North River; their data is based on the most recent information they can get. Devine asks how zone A overlaps with the proposed flood zone. FEMA has not developed a flood map for this area; this is determined by the storm of record or the FEMA flood maps, whichever is higher. Knisel points out that an option is to use the delineation on the map. Discussion of scaling ensues, since it’s not on map. Mr. Griffin says they are trying to establish elevations so they must stay above them their work so as not to be in the flood zone.
Knisel says he mentioned a project the Commission reviewed in the past with a 10.5’ approval. Devine does not have knowledge of it and would need to know what it’s based on. Griffin says he figures they saw 10 and 11 elevations, so went with 10.5.
Devine says they would default back to Zone A boundaries if elevations cannot be agreed upon. Mr. Griffin thinks it is close. Hamilton wonders about going off a river study if one was generated, as opposed to using maps for insurance purposes. Griffin says nothing in the Wetland Protection Act refers to a project. Chairwoman Knisel says it does reference the 100-year storm event, based on the FIRM or storm records.
Flood studies, documentation and origination of information are discussed. Mr. Griffin says that the Mother’s Day storm was well below their estimate. Devine points out options; they can request more information, default to Zone A boundaries on the FEMA map, or accept the 10.5 elevation. Mr. Griffin states that another option is for the Commission to decide on a higher elevation. What they need is an elevation to work with in their redevelopment plans.
Mr. Griffin mentions the issue of historic use of the property. He shows some old plans and photos. Maps go back to the turn of the century. Also, there is a photo in the 1960’s, shortly after the cannery fire. He lists and passes around several other photos. Historical use of the property has been industrial.
Blier asks if there has always been one entry into the property; currently there are more, and the one by Silver St. may not have been the main one. Service trucks would have had to use a bridge and a slope. Blier asks about some large trees from 1965. Chairwoman Knisel asks if Blier is ok with the footprints, but he says it is difficult to tell especially with the heavy vegetation.
Mr. Griffin shows the illustration with the footprints again. Blier is questioning the areas between the buildings, as areas exempted riverfront area regulation. Most of the property is in the 200’ riverfront area. Devine asks about the north side of river - are they requesting exemption for there? Yes, though there were not any buildings before, nor are there any now. Griffin says in 1965 there was activity on that land—a wastewater infiltration system.
Mr. Griffin has requested a canal exemption: Devine talked to Jill Provencal at the DEP, who believes that the north river does not qualify under the Wetlands Protection Act as a canal, since it is a modified river, and not a canal. Mr. Griffin disagrees, saying that the Cape Cod canal is a modified river, and is referred to in the regulations as an example of a canal. Mr. Griffin is not concerned whether the canal exemption applies—if the historic mill exemption is granted, that will serve his purposes.
Chairwoman Knisel says the historic mill exemption may be applied to all or part of the site. Devine thinks the exemption should apply to whole thing. He was in doubt about the area between the tracks and the river, but is satisfied with the photographic evidence that was just submitted.
Chairwoman Knisel opens to the public.
Barbara Warren 201 Washington St., of Salem Sound Coastwtach, speaks, and says she can’t hear well at Conservation Commission meetings. She mentions that the North River Peabody study was divided into 3 projects and project 3 has not been heard yet, is not permitted, and the Army Corps is working on it. There was contention about the Mother’s Day storm; the public said Flint St. and Grove St. did flood, while the study said they did not. She also questions the sewer easement along Harmony Grove Rd. – where does it go on their property?
Mr. Griffin believes the sewer continues along the railroad, not on the properties in question. Ms. Warren agrees with the DEP definition of canal – this is not “man made” as it was a mill pond in the 1700’s and in the 1800’s the legislature granted railroad access, which led to the filling and pollution. This functions as and is a river, has rainbow smelt and other wildlife that must be respected. She would also like explanation of the “historic mill” footprint, as she doesn’t understand exemption.
Jim Treadwell, of 36 Felt St. says there is no definition of a canal in the regulations, so can the DEP share one? He thinks the canal starts where the historic granite siding occurs, which means it is manmade; beyond that it meanders as a river. As for floodplain elevations – the Gateway Center used a 1st floor elevation of 10.25 but when planning was finalized they went to 12’. He thinks they came up with something historical or wanted to abide by a more conservative elevation. He also would like clarifications about the historic mill exemption – it says “occupied” but many structures have been eliminated since 1946. Why do we support the demolition of historic complexes which are on the historic register? He wants the DEP to clarify the intent of the law
regarding the exemptions with regard destruction of historic buildings.
Devine reads the historic mill exemption aloud.
Mr. Treadwell comments that the definition says “occupied,” not “formerly occupied.” Chairwoman Knisel says it says “is or was”. They debate back and forth about whether the buildings need to exist and be occupied in a certain time frame. Mr. Griffin says the existence of buildings does not change the status as a historic mill site. Mr. Treadwell asks why they are recognized; no one knows if they are on historic registers. Mr. Griffin says the complexes are exempt because it constrains development and cleanup along rivers. He is not sure why they picked 1946 as a cutoff. In this case industrial uses go back to the 1800’s. This will be discussed in detail as the project goes on.
Blier asks if the area north of the river meets the exemption, since there were no structures. Ricciarelli opines that the exemption may have been for adaptive use of buildings, but not for reuse of the site in general. No one is sure exactly what the exemption means.
Devine says it applies to this site, according to the language of the exemption. He has spoken with the DEP and the person who reviewed it does believe the exemption applies, as well.
Darrow Lebovici of 122 Federal St. speaks. He is trying to understand the purpose of the exemption as well. He asks what would and would not be possible if exemption is granted or not. Chairwoman Knisel states that it has to do with performance standards for riverfront area. Mr. Lebovici clarifies that if the exemption is granted, there cannot be discussions of any consequences of a certain type. Their job is to prevent damage to the river. If you don’t know what they will do, how can you grant this exemption? He asks for a detailed examination by the DEP. Chairwoman Knisel asks Devine if this has been applied to any other cases in Salem. He does not know, but this is one of several layers of resource areas that apply – it is also coastal bank with a 100’ buffer, land subject
coastal zone flowage, and land under a water body. They will not do anything without coming before the Conservation Commission with a Notice of Intent. Riverfront area is a 200’ zone, while coastal bank has a 100’ jurisdiction area.
Mr. Lebovici clarifies: the only implications of this exemption would apply between the 100’ and 200’ boundaries? That is the major difference; riverfront area goes down to the mean high water mark, so it would still all be reviewed. Mr. Lebovici wants to know what review they are relinquishing as result in the case of a 100’ boundary. Devine is not sure, but is one of many layers of performance standards. He clarifies that it is the Conservation Commission’s job to enforce the Wetlands Protection Act—to protect the river through the act. If the applicant is entitled to this exemption based on law, we must give it to them.
Mary Whitney, of 356 Essex St. says that the regulations are not clear. She wants to know if the river will be protected or not. There are 2 separate exemptions, and they are mostly discussing the historic mill complex exemption, not the canal definition.
Chairwoman Knisel rereads the Mill complex definition. Mr. Griffin says that what happens to buildings is not in question. What is in question is what happens to the resource. They want to establish the resource so they can tailor designs around it. Ms. Whitney wants to know why they want this exemption – not having it makes it more difficult to redevelop sites. The applicant wants to develop the site and address contamination, which is difficult to do without the exemption. It is not impossible to develop with the riverfront area protection applying, but is more difficult.
Ms. Whitney says there are endangered species – eel and smelt use the river for breeding. Mr. Treadwell refers to previous NOI’s in the letter submitted by Griffin – do those issues refer to riverfront area? He also mentions the Gulf of Maine Study. There have been filings on this property. Devine says if the law is clear, we don’t need to discuss intent or precedent, as we follow the law. Does the Commission think law applies? If not, they need to have that discussion. Mr. Treadwell says we need to find out if other cities have found similar things exempt.
There is no discussion of the Peabody flood mitigation project through this area. Devine says it does not bear on the decision tonight, but Treadwell thinks it might because culverts will be installed in the area. Devine says this type of filing is simply asking for delineation and exemptions regardless of development plans.
The Peabody 3rd phase is to widen the North River from Peabody down to Bridge St – a 28-30’ channel. Proceeding with phase 1 and 2 will have minor effects on hydraulic grades at Grove St.
Barbara Warren says the mitigation project plan has changed a lot. They have moved away from widening canal, and may do culverts instead, but it is hard to make a judgment. Also she asks about the area to the east of the bridge where water flows that way, and if they found wetland plants or hydrology there. They did not, there were mostly invasives; they tested soils and did not find wetland soils, just soils that smell like petroleum.
Mr. Lebovici says Devine said to distinguish the canal vs. riverfront exemptions – less clear is the canal. The applicant is requesting whichever exemption will work for this situation – canal or historic mill. If the Conservation Commission declines the historic mill exemption, they will seek the canal exemption, though it is much more complex.
Ms. Whitney asks about the owners of the property clearing the riverbank in violation of the Wetlands Protection Act and asks if they had a cease and desist. Mr. Griffin clarifies that the city actually cut knotweed, then his client was accused of doing it. Ms. Whitney, however, is referring to a stand of trees on a slope, which were cleared over the weekend, and the owner got fined. She feels that the site must be highly regulated, with more input than that from just one person at the DEP, who does not have enough information.
Blier says that is just background, and it is hard to build a case against exemption because the boundaries seem clear. He feels, reading the law, that it does seem clear. Part of the site or the site in its entirety could be defined as a mill complex.
Ms. Whitney and Mr. Treadwell both comment on their perceived lack of certainty. The DEP contact has a general understanding of the situation, but not a detailed history.
Mr. Griffin and Mr. Treadwell debate the purpose of the exemptions, whether they are meant to make redevelopment easier vs. destroy historic buildings.
Chairwoman Knisel asks if the Commission would like to review the areas in question or come to an agreement. Some feel that they would like further clarification, so she asks what other information is needed. Mr. Griffin states that the property has been used industrially for 100 years.
Mr. Treadwell says that the actual regulation talks about not just exemption, but grandfathering. It meets the definition of historic mill complex, and he is bothered that is it being destroyed. He would agree with Mr. Griffin if it were grandfathered, not exempted, but Blier clarifies that future plans have not been discussed. Mr. Griffins says that they will not be until this issue is finalized.
Ms. Warren asks if they looked at old assessor maps to determine footprints. They have used many sources. The 2nd map is a compilation of sources as it was at 1946, not including prior buildings. Ms. Warren asks about the historic mill aspect, which refers to industrial/manufacturing uses in general. “Occupied” does not necessarily mean by humans.
Mr.Treadwell says all areas would have been used. Why not call the whole thing a “mill?”
Ricciarelli wants a more concrete definition of historic mill complex and reads the regulations again.
Chairwoman Knisel confirms that the Commission is comfortable with the plan as flagged, with no modifications to the bank delineation. This is land under a water body, and subject to coastal storm flowage. Pabich had originally raised the latter point and had previously stated that he would be open to other elevations. Chairwoman Knisel requests that they use an elevation of at least 10.6.
Mr. Treadwell comments that the elevation at the Gateway Center (to be built) is 11, but that applicant never came before the Conservation Commission on that; Mr. Griffin was not aware of that project, and states that it does not matter to his client what the elevation is; he just wants a number so they can move forward. Whatever is determined tonight will be good for three years.
The Gateway developer decided that 12 was the correct elevation to base the buildings upon, and that should also be applied here.
Chairwoman Knisel says it is different, as the Commission is not determining elevation for a building, just for land subject to coastal storm flowage. She suggests they go up to 10.6. Ricciarelli thinks it’s logical. Blier asks why not take the highest point on the site? That’s 10.7. Griffin agrees. Hamilton objects to putting a number on it, saying it is up to applicant to defend why. She thinks it’s weak especially with indications of flooding. Chairwoman Knisel says the Commission can continue if it wants to request more information. The flood elevation is 10.8 at the City line, so the applicant can take that. Hamilton says 10.8 is a minimum.
Chairwoman Knisel summarizes that this is land subject to coastal storm flowage at elevation 10.8’ She would like to resolve the historic mill complex question and avoid the canal question, and points out that all we can work with is the definition given in the regulations, so the question remains as to the application of the exemption to the entire site, or make it based on its maximum footprint.
Ricciarelli asks about development opportunities within100’ vs. 200’ buffers. The 200’ zone is a resource area, while the 100’ area is only a buffer and would be less restrictive than being defined as riverfront area. All riverfront area regulations would be removed.
Devine comments on the possibility of peer review and advising the Commission on riverfront exemptions.
Mr. Griffin says there is development in riverfront areas all the time in Salem, and he does not think this particular site should have those restrictions applied.
Mr. Lebovici says it is important to be careful with this ruling because of the precedent it will set on the river, and there are many parcels with development issues who have not requested this. The Commission should eliminate any questions to this end. Questions of applicability/interpretation should be resolved. Ricciarelli wants to see better delineation and wants usable area delineated, not just discrete buildings.
Chairwoman Knisel clarifies that, if the issue is continued, the Commission would find using a solid footprint helpful and would also request more expert direction.
Blier respects Mr. Treadwell’s comments about precedent. The whole site was used for mill-related functions, and he wants to remove “probably” from the equation – “probably” the whole area was used.” He would like more data and for the DEP to issue a more formal opinion. Devine does not think we will put further comments in writing. They are “relatively convinced” of this. Ricciarelli asks if they can do site visit off schedule since he missed today’s.
Ms. Whitney clarifies that 1946 is the cutoff, so it is hard to tell now vs. then. Devine comments they would have the 1946 plan with them for a guidance.
Chairwoman Knisel reminds them that “complex” includes everything – storage, utilities, parking, etc. It would be more difficult to prove that all space was NOT used than to prove it was used.
Mr. Griffin asks if the meeting will have posting issues, or if it is not a public meeting. If only two Commissioners go, it is not an open meeting, so only two will attend. Ricciarelli will be one of them.
The Commission schedules a second site visit on Saturday the 18th at 10:30AM.
A motion to close the public discussion is made by Ricciarelli, seconded by Blier, and passes unanimously.
A motion to continue to the next meeting on June 23rd. is made by Hamilton, seconded by Ricciarelli, and passes unanimously.
Continuation of Public Hearing—Notice of Intent—DEP #64-509—Barbara Bowman, 8 Dearborn Lane, Salem, MA. The purpose of this hearing is to discuss the proposed removal of a concrete seawall and replacement with riprap within a portion of coastal beach, coastal bank, and land subject to coastal storm flowage at 8 Dearborn Lane.
No one is here for the applicant, who requests to continue to the next meeting as he does not have the information and also would not have quorum.
Hamilton motions to continue, is seconded by Ricciarelli, and the motion passes unanimously.
Public Hearing—Request for Determination of Applicability—Massachusetts Bay Commuter Railroad (MBCR), 89 South St., 8th floor, Boston, MA. The purpose of the hearing is to discuss verification of wetland boundaries in planning for the application of herbicides on MBCR rights of way, from the Swampscott line (Thompson’s Meadow) to Ocean Ave., and parallel to the North River from Flint St. to the Beverly line.
Here for MBCR is Kyle Fair from TEC Associates. He passes out a color copy of the plans.
This work is covered by the Department of Agricultural Resources and a vegetation management plan. He displays an MBCR map showing spray zones.
The herbicide application vehicle has booms that stretch 10’ onto either side of the tracks; where there are two sets of tracks, herbicide is applied to both sides. Regulations require protection of sensitive areas as well as drinking water protection, however there are no drinking water areas. Rather than delineate all boundaries of sensitive areas, they delineate by zones based on maps and the work that is done to use maps with applicators. Yellow zones are “no spray” zones, wetlands and sensitive areas will be within a 10’ buffer of work. Several zones along the North River and bridges have no spraying. Blue zones mark applications done once a year, which require the use of sensitive area material as required by DEP and DAR. The chemical is limited to right-of-way application.
There is an “undelineated area” in the middle of town, and no spraying is done there or in the tunnel.
The sensitive area material lists chemicals used – the same ones are used on the entire right of way since it is difficult to switch chemicals. There is a permanent marking system, with painted lines on the tracks. He is redoing the RDA’s, and he did marking systems this year. The pilot vehicle also alerts the truck to standing water in drainage ditches, since the chemical cannot be applied within 10’ of standing or flowing water. He did a full review of the delineation, but it did not change from previously approved delineations.
Blier asks about Thompson’s Meadow- will it be sprayed on the west but not the east side? They delineate in the field. The right-of-way with 2 tracks is large, but built to the left side of right of way, tracks are within the 10’ buffer but tracks on right are further away, so it may be sprayed as they have a buffer.
Jefferson Ave. is under the same condition. There is concern with drift into sensitive areas, but drift is minimal or nonexistent. No application is done in wet or windy conditions.
Before the Commission is a question of delineation, not anything else. They are exempt from Wetlands Protection Act because this is done within the approved vegetative management plan. Work is prescribed by the vegetation management plan. Distances are 10’ and 100’ – work is 10’ either side of center – a 20’ pattern on a single track, with the pattern sprayed on both tracks when there are two. They are required to keep a 10’ buffer from their work to any sensitive area – mean high water, vernal pools, vegetated wetlands, etc. 100’ single blue zones are anything identified within 100’ of proposed work.
Knisel opens to the public, and with none present, there are no comments.
A motion to close the public discussion is made by Ricciarelli, seconded by Hamilton, and all agree.
A motion to close the public hearing is made by Hamilton, seconded by Ricciarelli, and passes unanimously.
Devine clarifies that they are issuing two exemptions from buffer zone and riverfront areas.
A motion to confirm the two exemptions and the existing delineation of the resource area is made by Blier, seconded by Hamilton, and passes unanimously. This decision is hereby made part of these minutes.
Old/New Business
The City may be applying for a state PARC grant for Splaine Park, and asking for a letter of support from the Commission.
Devine also wants to purchase wetland plant indentification books. Barbara Warren made some recommendations. He is asking for $40, and the Commission has no objections but Blier points out there is an iPhone app. You can hold it up to a plant and it will identify it.
Also Devine is requesting $400 to renew the GIS subscription in October. Chairwoman Knisel wonders why it is not part of the city overhead – Devine says the City would just not pay for it. Ricciarelli asks if we are supporting part of the overall system. We are not, just the one on the Conservation Agent’s computer.
A motion to approve funds is made by Blier to cover the costs of the books and GIS, seconded by Ricciarelli, and passes unanimously.
A motion to adjourn is made by Hamilton, seconded by Blier and passes unanimously.
The meeting ends at 8:40 PM.
Respectfully Submitted,
Stacy Kilb
Clerk, Salem Conservation Commission
Approved by the Conservation Commission on September 8, 2011.
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