HomeMy WebLinkAboutCONSERVATIONminutes06032009
CONSER V AnON MEETING
JUNE 3, 2009
Present: Joe Mulkern, Chairman; Paul Boyden, Vice Chairman; Carole Matthew; Michele White;
Jack Smith; Dcrek House: Michele Grenier, Conservation and Environmental Planner.
Also present: John Sullivan, Town Engineer; Rick Alves, Assistant Engineer; Ralph Maloon,
RIM Engineering, Co.; Nick Riccio, Building Inspector and Zoning Enforcement Officer; Michael
P. Donovan, Fidelity Joint Ventures, Inc.
Meeting was called to order at 6:00 pm.
John Sullivan told the board he was originally involved with the initial review of this project and
is familiar in what happened after the review. The main concern was the entire parcel is under the
100- year flood elevation; all the existing land out there is under flood zone.
A Notice ofIntent was filed January 29, 2008 by Mark Blanchette with a plan dated January 7,
2008. The wetland line, the 25 ft. line and the I OO-year zone were all marked.
In a report submitted with the NOl, the applicant did state the land was in the flood zone.
John Sullivan told the board there was an existing footprint, building was still on site; structure
was in pretty bad condition. The rest of the land had quite a bit of debris, including a travel
trailer. The applicant proposed to remove the existing building and foundation and instead put a
larger house fmther away from the wetlands. The applicant intended to use a pile of fill on site as
flood plain compensation; the calculations that were submitted in the NOl said they were
compensating by removing the fill area.
Engineering, in review of this, sent a memorandum dated February 14, 2008 to the Commission
questioning the use of the mound of dht as part of the compensation on the basis it was not
naturally occurring.
On February 20, 2008, RIM Engineering then went out to perform soil testing on the mound
which was witnessed by the Engineering Depmtment; all agreed the mound was a fill pile of loam.
Everyone concurred the mound could not be counted for the flood compensation.
John Sullivan's memorandum of FeblUary 26, 2008, documenting the RIM testing, stated the
flood zone compensation cannot be met.
Back to the memorandum of February 14,2008: The original memorandum said if compliance
with the Wetland Protection Act can be shown, significant conditions needed to be placed on any
approval that is issued by the Commission to protect the Town and any future buyer; essentially
putting any buyer on notice in the deed that this land was subject to the 100-year flood and there
are restrictions on what you could do on the property.
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On March 6, 2008, Ralph Maloon contacted John Sullivan and indicated that there might be a way
to compensate for flood storage on an off-site parcel within the same watershed. The applicant
was in discussion with a neighbor to buy a portion of land for the compensation. John Sullivan
talked with Michele and understood that DEP would be on board with this.
At an April 2, 2008 meeting, attended by Mark Blanchette, the applicant, Ralph Maloon, RIM
Engineering, John Sullivan, Town Engineering, Michele Grenier, Nick Riccio, Inspector of
Buildings & Zoning Enforcement Officer, and Attorney Pollis ofPollis & Duggan, Ralph
discussed his plan for 69 King Street, as revised 2/25/2008. John Sullivan said there were two
issues discussed at the meeting; the site is entirely within the flood zone and under the flood
elevation and future buyers need to be aware of the flood zone; the town is the first one to get
blamed for residential flooding and people want to know "why did the town allow this to be
built." John Sullivan said there appeared to be two options: either rebuild on the existing house
footprint or fill part of the flood plain and compensate elsewhere in same watershed, as DEP
indicated they would allow.
John Sullivan said at this point Engineering lost contact with this project.
Another plan, dated April 16, 2008, was submitted to Conservation showing the applicant was
going to build on the existing footprint. This is the plan referenced in the Order of Conditions
issued to Mark Blanchette on May 15,2008. John Sullivan said the Order of Conditions was
issued with only the standard conditions, with special conditions such as signage, and a temporary
chain link fence with fabric lining installed on the 25 ft. no disturb line and the order must be
recorded. He said his recommendations in the February 14,2009 letter were not included in this
Order of Conditions.
Paul Boyden asked about the elevations. John Sullivan said the calculations submitted with the
January 7, 2008 plan use a 1 OO-year flood zone elevation of 172.7 and the small mound of fill to
elevation of 173.
Derek House wanted to know why the Commission was not given the memorandums by John
Sullivan at the May 2008 hearing. Michele said they were given to the board. Derek House: "I
did not see them until a month ago. When we originally discussed this plan we didn't have these."
Michele: "They are always put in the packages."
John Sullivan told the board the last plan he saw was a plan from RIM dated August 18, 2008,
showing the house in its present location. He said he measured the perimeter of the foundation
and it is the same as the existing foundation. One minor difference is a small deck added; for all
essential purposes, it is the same as the existing house; there is an overhang to get a larger living
space.
At this point in time, John Sullivan feels there are 2 options for this property: stick to the original
order that was issued and move the house back to where it was approved in the order or since the
footprint had actually been approved to replace the existing house, allow it to be moved over to
where it is now. But since it was not done in accordance with the Order of Conditions, add the
conditions the Engineering Depmiment proposed in their February 14, 2008 letter: a recorded
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declaration of land restrictions should be done so potential buyers are aware of the flood plain
restrictions. Included in the document: based on a FEMA 100-year flood elevation of 172.7 feet,
only the first floor of the house would be above the 100-year flood elevation; the entire lot would
be flooded except for the house footprint ifthe 100-year flood elevation is reached; no space
below the 100-year flood elevation could be converted to living space; no equipment, appliances
or storage is to be maintained below the 100-year flood elevation; no outside structures, above-
ground pools or any items that would decrease the available flood storage volume will be allowed.
In addition to these conditions, John Sullivan also recommended an as-built plan, with
certification of elevations, signed and stamped by a Professional Land Surveyor be submitted
prior to occupancy or the issuance of a celiificatc of compliance. He reminded the board these
were recommended to the board but were not included in the Order of Conditions.
Comments:
Carole Matthew asked John Sullivan about compensating somewhere else off site; what happened
with this idea? John Sullivan told her it was discussed in the minutes of May 12,2008. John
Sullivan told her Ralph Maloon said there might be an alternative; if they can compensate the
flood plain on an adjacent piece of land at the same flood levels, if a deal can be worked out with
the neighbor, the applicant would be able to put a larger house in a different location on the
property. At the hearing the board stated that if the compensation could be done, the applicant
would re-file/submit new plans under new construction regulations.
Joe Mulkern asked how this project was allowed to go forward; the applicant came before the
board, an Order of Conditions was issued for the house to be built in the same foot print with the
understanding if any changes were to take place, the applicant would have to come back to the
board.
Michele said Mr. Brown came into the office to ask ifhe could change the fence for 701 North
Main Street and if the house at 69 King Street could be moved. She told him the chain-link fence
was required for 701 North Main Street. She told him he would have to come back before the
board ifthere was any change in the approved plan. This was the last she heard from Alan
Brown.
Paul Boyden asked Nick Riccio if the house location was based on the original
foundation/footprint. Nick said no; the existing foundation was non-existing, and a new
foundation would be required to be in compliance with the building code. He asked Ralph
Maloon ifhe could shed some light on what transpired next.
Ralph Maloon told the board, after a conversation with Alan Brown (the new owner); he
suggested because the original foundation could not be used, that the house be moved to a better
location, fmiher away from the wetlands.
Joe Mulkern wanted to know who made the decision to move the house without consulting
Conservation. He said he would like to know what happened to prevent the same situation from
happening again.
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Joe Mulkern asked if the building depat1ment ever sees the Order of Conditions. Nick Riccio said
no. He told the board he has no legal authority to enforce the Wetland Act or the local by-law; he
only enforces building code and zoning. He told the board the permit for this project was based
on the new plan because he had determined the existing plan could not be used; the existing
foundation did not meet building code and legally he had to issue the permit because the plan met
all building and zoning rcgulations.
Michele said pat1 of this is her fault; any conversation she has with an applicant regarding changes
to a plan with an Order of Conditions should bc documented in a letter.
Derek House asked Nick Riccio ifit would help having the Order of Conditions submitted to
building prior to a building permit being issued. Are we creating more work for you or is it
something the board should do to prevent this from happening again. Nick Riccio said he would
be happy to review the OC; it would become a permanent part of the project file. Michele said if
there is a sensitive issue involving a project, she will issue a memo to Nick Riccio so he will bc
awarc of it.
John Sullivan: "As far as who got the OC, all orders are issued by certified mail to the applicant,
it is checked off as doing this. The onus is on the applicant.
Paul Boyden: "One thing that needs to be addressed, it is in both our policies under decision
making and in our purpose and authority; the final decision, course or direction for any specific
project coming before this board shall rest in the hands of the appointed members unequivocally.
This decision shall be voted by at least a quorum. "We can't have a person acting on their own,
either a member of the board or the agent; it's the board. That's wherc I see a problem."
Joe Mulke1'1l wanted to know if town council had been consulted. Michele and Paul Boyden said
no.
The board would like town council to be consulted.
Derek House asked if a Notice of Intent had been filed for the new location. Paul Boyden asked
about the Amended Notice ofIntent that was filed by Alan Brown (the hearing of April 13, 2009
was opened and a motion was made to continue the hearing to a later date).
Michele said a new filing would have to be submitted because Alan Brown is no longer the owner
of the property. Derek House: "We need a new Nor for the current owner because this building
is now sitting with no paperwork on it.
Michael Donovan of Fidelity Joint Ventures said he is the lender to Mr. Brown who bought the
prope11y from Mark Blanchette under the existing OC. He asked what needed to be done to move
forward to get the house sold. He is "surprised how we got this far down the line without anyone
knowing what was going on." Joe Mulke1'1l asked ifMr. Brown is still patt of the equation.
Michael Donovan said he is no longer involved with the propelty; the property has been
foreclosed on and is now owned by Fidelity Joint Ventures. Michael Donovan said the
foreclosure date was May 15,2009.
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Derek House asked ifthere was a way to prevent this from happening again; when there is a
change of ownership, do we need a policy in place for when an OC has been issued and ownership
changes?
Michele told him the board can't require this because you can't have procedures - you have a by-
law and regulations.
Derek House asked if the board could add a boilerplate condition to say a transfer of ownership
would require Conservation is notified. Michele said it can be written as one of the special
conditions.
Carole Matthew: "We approved the plan (dated April 16, 2008) and then someone decided to
move the house, I assume it was Mr. Brown or Mr. Maloon. The permit went to Nick Riccio and
he approved it with the plan (dated August 18, 2008). Nick Riccio: "I don't have the authority to
do that and never would do that. The plan showed it conformed to zoning set backs and met
everything in the by-law and building code. Also the building plan showed flood resistant
construction in compliance with the by-law. Carole Matthew: "You approved the original?"
Nick Riccio: "I approved what was submitted with the application which was the plan (dated
August 18,2008) showing the projcct was in compliance."
Paul Boyden questioned the procedure of acquiring a building permit. When a building permit is
applied for, various departments sign off on the permit - the integrity of the signature says the
board voted to ok this project; this may not be true. He questioned this method of giving approval
of a project.
Carole Matthew asked Michele if she signed off on the building permit with the second plan for
69 King Street. Michele: "No, no I didn't, no. I signed off on it right after the hcaring. Paul
Boyden: "When you signed off on it, it was the 2nd plan. Michele: "No it wasn't. I reviewed it;
it was right after our hearing - it was on the 1st plan. Alan Brown did not bring it back to Nick
until the 2nd plan was done. Joe Mulkern: "So wc never saw the 2nd plan? Michele: "We never
saw the 2nd plan. Joe Mulkern: "And you never saw the 2nd plan? Michele: "No, but I signcd the
building permit on what we had approved.
Derek I.Iouse: "Can I recommend wc do an up-dated NOr. Paul reminded the board there is an
Amended Notice of Intent out there. Michele told him the amended Nor is void because Mr.
Brown no longer owns the propetiy.
John Sullivan would likc the board to consider the conditions set forth in the February 14, 2008
memorandum, page 2. Nick Riccio and John Sullivan stressed how important the conditions are.
Joe Mulkern asked John Sullivan to repeat the options. John Sullivan: "Right now you have an
existing OC out there - first option: put the house back where it is supposed to be; move the house
back with a foundation in the same location. Second option: Since they did not build it per the
order, I believe it gives the board an opening to, if you were to grant it, staying where it is since it
is the same footprint, just in a different spot. It gives you the option of putting the conditions on
it.
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Derek asked if an occupancy permit had been issued. Nick said yes.
Rick Alves suggested, as a way to avoid this in the future, the OC be sent to the engineering
Isurveyor firm who will be laying out the house so they are aware ofthe conditions attached to the
property. Paul Boyden also suggested the OC be attached to building permit so the builder knows
the conditions.
Because of the damage that would be done by moving the house with a new foundation to the
original position, it was decided an after-the-fact NO! would be filed, allowing the house to
remain in the present location. Michael Donovan said he would file the NO! and asked if it was
possible to be put on the June 15th agenda. Ralph Maloon will submit the filing by June 8, 2009.
Hearing will be June 15,2009.
Meeting was adjourned at 6:55 pm. Paul Boyden made the motion, Derek House seconded.
Passed 6-0.
Q{ /Yl/VL____
Joc Mulk rn, Chairman
I~"/Y-O?
Date
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