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HomeMy WebLinkAboutmin of conservation com 05/12/2003 ,':p, \ ,~, (' Conservation Commission Meeting May 12, 2003 Present: Paul Boyden, Chair; Christine Flass, Jack Smith, Bob Bean Richard Lewis, Conservation and Environmental Planner C ...1\ ~.:? i P:-\ 2= 3 t.t L "j '-:~::--lrT~ fl ,"r~,.""" \1. Meeting caUed to order at 7:30 p.m. 2. Public Bearing - Notice of Intent - 1301 East Street - Peter Fontanini The chair read the public hearing notice for the construction of a single-family house with grading, excavation, and associated work within 100 feet of a wetland resource area. Mr. Lewis has visited the site and there are a few areas needing additional review of the wetland boundary, and new flagging. The chair read a request to continue the public hearing for this work to be done. Motion: To continue the public hearing until June 9, 2003 at 7:50 p.m. (Flass-Smith) Allin favor. PASSES Mr. Lewis suggested a site walk prior to the continued public hearing. 3. Public Bearing continued - Abbreviated Notice of Resource Area Delineation School Street and Rontes 140 and 495 - DEP File #211-681 The chair reopened the public hearing notice for the review and determination of wetland boundaries as shown on the submitted site plans. r Ralph Maloon, RIM Engineering, submitted proof of notification to abutters. Mr. Maloon explained the plans for the wetland delineation, and said he didn't know what was planned for the site. He said a good portion of this site was flagged in 2001, but this plan shows all the wetlands in the triangle. Mr. Maloon explained there is a new line shown through the Nordbeck site, which is an upland between two wetlands. Ms. Flass said that area had puddled water in it during the site walk. Mr. Lewis said he had walked this site in 2001 and stopped at the stone wall dividing the property, and that line is shown in red on this plan. Mr. Maloon pointed out a difference between the 1991 and 2003 wetland flagging, at the comer of 140 and 495, which includes more wetlands than during the first walk. There are ditch areas shown along the state highway layout of Route 140. Mr. Lewis said the wetland flagging has been changed a few times following his site walks, with flags 8 and 9 now shown in the wetland. Mr. Lewis said he was comfortable with the flagging, and said the site is so flat it holds water after rain, but there are no hydric soils there. He said there is a large wetland area along Route 495; the original flagging stopped around #32. Board Comment Ms. Flass asked whether the ditch would be called an intermittent stream; Mr. Maloon said that drains a very small amount. She asked how the pond would be regulated; r ~ Mr. Lewis said it has bank: and land underwater, so is a regulatable resource. Mr. Maloon said the pond is manmade. Mr. Lewis said the south side of the plan shows an upland ditch, and there is a question as to whether it is an upland ditch or an intermittent stream. There is an 8" pipe shown on the plan, as well as a crossing; that pipe drains the pond, the intermittent stream coming off Willow Street, and the wetlands at the Route 495 side of the site. Mr. Lewis said the water was flowing when he visited the site earlier today, although it contains a lot of debris. He said he felt it is a regulatable resource, which would have a buffer zone around it. Mr. Boyden asked the elevation in the area of flag #57 and flags # 178R through 19R Mr. Lewis said flag #57 is at 138.79, and the invert of that pipe is 135.42. Flag 15R is 136.01 feet, and 18C is at 132.33. Flag 29C is at 134.93; 26C is at 133.75; 23C is 133.96. Mr. Maloon said that run is about 280 feet from wetland to wetland; the pitch is about 2<<>>,10 at the pipe, then from the pipe to the wetland it is very flat. Mr. Boyden said he was concerned about standing water in that area. Mr. Maloon said the runoff form Route 495 goes into a ditch along the highway, and there are two 24" pipes to carry the bulk of the water. Mr. Boyden asked where the wetland at the right of the plan flows; Mr. Maloon said that wetland flows under the highway. Public Comment Mr. Boyden explained the plans show the delineation of the wetland areas only. r Helen Christian, School Street. asked if the water could back up from the pond, saying she was concerned about the water table having changed several times with construction. Mr. Maloon said the pond couldn't back up to School Street He said the water flows through this site away from School Street to the outlet where 140 and 495 meet. Allan Willis, abutter, said when the state was building the road, two 24-inch pipes were installed to drain the pond. He said the water runs through the pipes, through rip rap, to an infield area at 140/495, which would act as a retention area. He said the pond wouldn't back up, and the stream is intermittent and dries up in the summer. Roger Vickery, School Street, said the state redid the area when 495 was built, and this area was a tributary of the Great Brook. Mr. Willis said that is a different watershed. Mr. Lewis asked how the board would consider the ditch. There are no wetland areas or wetland vegetation associated with it, but it could still be a stream. He said there was no determination made in the 2001 order, but it was shown as an upland ditch. Ms. Flass said it sounds like a stream. The elevation at the 24-inch pipe is 137.26. Mr. Lewis said the invert of the ditch is probably two feet below that elevation. r ~ Mr. Boyden asked where the runoff would go if the parcel were developed; Mr. Maloon said surface flow would go in a southerly direction. Mr. Lewis said the flows would have to be balanced, and said the south side of the upland ditch may end be used as a drainage area. He said the wetlands on either side were shown on the 2001 plan, and he didn't think it would have much impact because there is no BVW associated with it. Ms. Flass said she was unsure whether this meets the definition of a stream; Mr. Boyden said he thought it was intermittent. Mr. Lewis said that would require a 100- foot buffer, and future work would be classified a stream bank: alteration. Mr. Boyden noted there is only 100 feet between the two wetland areas. Mr. Lewis said any crossing there would be a limited project. Mr. Vickery asked how long it took to establish a wetland area, noting this had been stripped down to gravel during the highway construction. Mr. Lewis explained it depends on the plants, soils and hydrology. Mr. Maloon said it is immaterial how the wetland got there, as long as it is established. Motion: To consider the upland ditch on southeastern side an intermittent stream (plass-Smith) All in favor. PASSES Motion: To close the public hearing (plass-Smith) All in favor. PASSES r Motion: To accept the wetland boundaries as shown on the plan dated February 21, 2003 and revised May 9,2003 (Flass-Smith) All in favor. PASSES 4. Public Bearing continued - Notice of Intent - Cedar Heights LLC - Francis Avenue, Assessor's Map 30, Parcel 77 (SE211-682) The chair reopened the public hearing notice for the construction of a residential apartment complex, with proposed filling of a portion of an isolated wetland area, with compensation provided, with grading and other activity proposed within 100 feet of a wetland resource area. Attorney John Michelmore said he had spoken with town counsel regarding the question about 40B applications not having to follow the town's wetland bylaw. He said the state bylaw cannot be disregarded. He said he understood that therefore, the commission has to decide the notice of intent under the state bylaw. Under the town's bylaw, the commission can approve, disapprove, or let the ZBA decide. Mr. Bean said he understood there are two sets of laws, the state law and the local by- law, but under 40B, only the state law must be followed, and the laws of the town can be relaxed. Mr. Michelmore said the local by-laws can be disregarded entirely. He said the commission's decision on this issue is advisory to the ZBA, which doesn't have to follow it. r' ~ Mr. Lewis said he has spoken with town counsel, who advised him to ask Attorney Michelmore to prepare a brief, which Mr. Mangiaratti would review. Neither attorney has had time to do that, and there isn't much case law on this. He said he hadn't thought about breaking this into two pieces, and making a decision under the state act separately from the local act. He said ultimately, the decision rests with the ZBA as to whether to waive or accept certain things under the local act. Mr. Boyden suggested considering the project under the state regulations. Ed Peschi, Cubellis-Savitz Associates, explained the most obvious thing would be to add a condition calling for a replication plan to be prepared in cooperation with Mr. Lewis. He said Mr. Ball is prepared to do that plan as soon as the commission is comfortable. He said the rest of the project complies, but there is one additional concession to which they have agreed, to run the sewer through an area they planned to replicate; they have agreed to move the sewer to the existing ditch closer to Francis Avenue. They have also agreed to relocate the recycle center outside the buffer zone. Mr. Lewis said the wetland filling is taking place within the isolated area, so the remaining work on the site would be in the buffer zone. r- Mr. Peschi said there is no hydraulic connection between the two wetland areas. He said it appeared a utility trench was started but not finished, and there is no evidence it was a bank resource or intermittent stream. He said the elevations of wetland B is about 178. Wetland A is about 179 and 177. Mr. Peschi said they are considering providing full foundations for storage, but not for dwelling areas. He said the groundwater is fairly deep. The elevation of building 3 is 179.9, with the perched silty layer one foot below; this building would be on slab and not have basements. Mr. Boyden said if the wetland is fed primarily by runoff: it might dry up after construction. Mr. Peschi said they would continue to feed the wetland with runoff. He said Mr. Ball feels the replication area was in a good place. Mr. Peschi said they had planned to do testing today, but will reschedule that to be sure Mr. Sullivan is satisfied with the infiltration capacity. He said all of the surface water runoff that is detained and treated will go to the wetland near building 3. Mr. Peschi said the wetland isn't jurisdictional under the act, but they are maintaining compensatory filling. It will also provide a buffer from Francis Avenue. Mr. Smith said he didn't have a problem with the plan. r- Mr. Bean said considering the plans presented over the course of the project, and looking at the entitlements ofa 40B, if this weren't a 40B, the commission wouldn't even be discussing this. But since 40B allows leeway, the applicant has put together a viable plan with forethought and common sense, as well as some aesthetic beauty in a . . r constrained area. It appears better than previous plans the commission has seen, especially if the replication is done well. Ms. Flass said if the issues are separated, there is only buffer zone work under the state bylaw, however, she said she didn't want to concede the commission's ability to act under the local bylaw. She said the site is very small with little open space, and if this weren't a 40B, she wouldn't vote to approve it. Mr. Lewis said the commission sent the ZBA a letter for its first public hearing asking that board to work toward eliminating the wetland alteration, which remains on the table. Mr. Boyden was concerned the commission would lose any future input if it handed the decision over to the ZBA. Mr. Michelmore said if the commission recognizes the ZBA has the ultimate decision, but wants to reserve the right to comment, that would be reasonable. Mr. Peschi said the commission could issue an order under the state by-law, which would give the ZBA some direction. Mr. Turner said the commission does have the final say over the replication area. Mr. Boyden said the ZBA hasn't yet decided the number of units. Mr. Michelmore said if the ZBA decides it is too dense, they can go to the Housing Appeals Committee, which would make the ultimate decision. He said the pattern at that committee has been it would decide this isn't too dense. He said they would like to work out a compromise rather than go that route. r Mr. Turner said this project is less dense than most of the apartments built downtown. Mr. Boyden said there weren't wetland issues with those buildings. Mr. Peschi said this project is in compliance with the state act, and he feels the commission has an obligation to render a decision under that act. Mr. Lewis asked whether the applicant would rather have no order under the local by- law; Mr. Michelmore said that was up to the commission. Ms. Flass said the commission should give the ZBA some direction. Mr. Lewis asked if the ZBA waives all provisions of the local bylaw, the commission would be obligated to issue an order under those remaining conditions. Mr. Lewis said if the commission felt comfortable closing the hearing under both by-laws, it could issue orders under both bylaws. Mr. Bean said he would like to hear town counsel's opinion on the local vs. state by- law question. Mr. Lewis said Mr. Mangiaratti had requested a brief from applicant's counsel, which he would review. The commission asked that that still be done. Mr. Michelmore said he would send town counsel a letter describing the commission's discussion and asking him to opine. Motion: To close the hearing subject to town counsel's review and the commission's ability to issue an Order of Conditions (Bean- Smith) r , - r Ms. Flass asked how the wording of the order would be worked out. Mr. Lewis said he would draft two orders, one under the state and one under the local by-law, which would likely be a denial. Mr. Turner asked if the ZBA approves the plan under the state bylaw, but denies it under the local wetland by-law, could they could still appeal? Mr. Lewis said that would go to the Housing Appeals Court, not to DEP. All in favor. PASSES Mr. Lewis will draft an order under the state law for the June 9 meeting. I 7. Correspondence 1. April 28 minutes - add a note that Mr. Lewis should be notified before work begins on the County Street bridge. Change the extra number of parking spaces on Francis Avenue to eight. Motion: To approve as amended (Smith-Flass) All in favor. PASSES 2. Mr. Lewis will notify the members about a site walk on the East Street project. There will be one new public hearing on June 9 for a single family addition. 3. Mr. Boyden asked about work going on at the former nursery on East Street. ,,-. 4. Ms. Flass asked about the snow removal plan on Plymouth Street. Mr. Lewis said the commission had advised the town develop a plan, which he has not seen yet. 5. Mr. Lewis said Michelle Grenier has been out to Gilbert Street, but has not found anything. 6. Mr. Lewis said town counsel is working on the Carrigan-Willow Street case. He said the stream is flowing daily. I 8. Adjournment Motion: To adjourn at 10:00 p.m. (Bean-Flass) All in favor. PASSES Date of Next Meeting: June 9, 2003 at 7:30 p.m. '7/) VI J ,j ) Date of Approval ,,-.