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HomeMy WebLinkAboutCONSERVATION_02242014Town of Mansfield Conservation Minutes February 24, 2014 Joseph Mulkern, Chairman; Michael Healey, Vice Chairman; James Turnbull; Carole Matthew; Ryan Maxwell; Katelyn Merrill, Environmental Planner. Also present: Richard Hucksam, Jr., Town Counsel. The public hearing started at 6:00 pm in Meeting Room 2 A/B to review, discuss and adopt the proposed revisions to Section 1 -13 of the Rules and Regulations of the Town of Mansfield Wetland Protection By -Law, Chapter 15. Each section was reviewed individually. Section 1. Authority, Purpose, Effective Dates. There were no comments from the Commission or the public. Section 2. Jurisdiction, No Disturb Zone, Definitions. There were no comments from the Commission. William Clemmey of 55 Fowler Street questioned (1) Resource Areas Subject to Protection under the By -Law, Jurisdiction, page 3. He asked if there were any changes to the resource area subject to protection or is it just defining it better. Mr. Mulkern said there is no change. Attorney Hucksam said this is to make sure the Rules and Regulations are consistent with the By -Law, to basically clean up, eliminate duplications and have language consistency with the By- Law. Mr. Leonard Flynn asked if this any proposal changes would affect the By -Law. It was stated that the regulations are strictly to clarify the By -Law. < 2. Jurisdiction, No Disturb Zone, Definitions - (2), page 4 of 18, Activities Subject to Regulation Under the By -Law. Ms. Matthew asked about the language under the No Disturb Zone section, regarding the 50 -foot No Disturb Zone. She asked if they had clarified when the 50 -foot buffer would come into play. Ms. Merrill stated that they had added the definition of disturbed land and the regulations somewhat discuss the Commission's right to increase the No Disturb Zone width to 50 feet of a By -Law Resource Area as authorized pursuant to Section 2.4 of the By -Law. Attorney Hucksam said the primary goal of this section is to make sure it is consistent with 2.4 of the By -Law. Ms. Matthew said if the Board does not get too specific in the Rules and Regulations then the Board can look at each case with discretion. Attorney Hucksam said it should be applied on a case by case basis. Ms. Merrill said the Board should look at individual cases and not get specific and be inconsistent with the By -Law. Attorney Hucksam stated that if the Board is unable to reach agreement on this version of the Rules and Regulations, it can be looked at again and fine - tuned. Mr. Healey said the primary focus of the review of the Rules and Regulations is to try to eliminate any contradictions and get clearer language in the Rules and Regulations so people have a better understanding. This does not mean there might not be a need to provide some additional explanation for the conditions the Commission may find requires further scrutiny or protection because of the nature of the activity proposed. This is consistent with the language in the Wetland Protection Act. Ms. Merrill said the Board is working within the limits of the By- Law. She said, going forward, once the Rules and Regulations have been adopted, the Commission has the right to hold a public hearing to amend the Rules and Regulations under the proper procedures when they feel it is necessary. No comments from the public. Mr. Healey's added that the definition of the upper and lower boundary of annual flood level. The Rules and Regulations say whichever is lower. In order to be more protective, the Rules and Regulations should state whichever is higher. Attorney Hucksam this change was made- (c) any bank, the upper boundary of which is defined as the first observable break in the slope or the mean annual flood level, whichever is lower, and the lower boundary of which is defined as the mean annual low flow level. Section 3. Signage. Peter and Maria McGuiness, 590 Maple Street: Mr. McGuiness asked if the signage requirement includes private property. He said wetlands comprise 80% of the 5.9 acres he owns, and asked if he should have signage. Mr. Mulkern said if Mr. McGuiness plans to do any work on his property, the wetlands should be flagged to determine the distance from the wetlands to the work area. Ms. Merrill said if you are doing work within jurisdiction, the signage is part of the standard Order of Conditions. Section 4. Hearing Process When Other Mansfield Board Approvals Are Needed. No comments from the Commission or the public. Section 5. Rare Species Habitat. Ms. Matthew asked if the word "informal" should be changed to "formal" in the last sentence of paragraph 2, page 8 of 18 — Presumption of Vernal Pool Habitat, that states "any informal evaluation should be performed by an individual meeting the qualification requirements stated in 310 CMR 10.60 (1)(b) ". Ms. Merrill said that since there is a procedure that DEP refers to as a formal "Wild Life Evaluation" it should be clarified that we are not asking that the applicants perform a formal evaluation by DEP standards . The Board requires that a professional must meet criteria set forth in CMR 10.60 (1)(b) but does not have a format of a specific report required for an evaluation. Ms. Matthew questioned the wording of the last paragraph on page 4 of 18 "Lands within 100 feet of Vernal Pool or habitat of a State - listed species "; she said it should be Certified Vernal Pool; the Regulations say within an Estimated Habitat or a wetland within an Estimated Habitat. Ms. Merrill noted the By -Law says the Commission has jurisdiction over any wetland which is within an area identified by the state as habitat site of state - listed species. Ms. Matthew asked who determines the boundary of an Estimated Habitat. Ms. Merrill stated that NHESP creates the GIS over -lay, a boundary set by aerial photography. There is language that allows you to apply the performance standards of the By -Law if a species exists but the area is not mapped. She said there has to be a wetland connected to the habitat in order for the Conservation Commission to have jurisdiction. Ms. Matthews asked if the wording "wetland within habitat" should be included. The Commission already has jurisdiction over any wetland resource. The Commission only has jurisdiction when the Estimated Habitat is within 100 feet of a wetland. She said there are portions of the town that do not have wetlands but are considered Estimated Habitat. She asked Ms. Matthew if she felt "wetland" should be added to line 4. Ms Matthew replied yes. Attorney Hucksam said Section 2.6 of the By -Law makes reference to jurisdiction over any wetland identified by the state as habitat site of a state - listed species, however the Regulations do not indicated "wetland within" habitat. This could be fine -tuned in the future to clarify the jurisdiction. Ms. Matthew referenced page 8 of 18, last paragraph: [The burden of proof is on the applicant to show how the project as designed will meet the performance standard of proving that the Vernal Pool or wetland area is not a significant habitat area]. She said the intent of Section 2.6 of the By -Law is to prove that the area is or is not significant habitat, not how the project is designed. Ms. Merrill said the By -Law does not reference the design of the project, only the significance of the habitat. She agreed that "the project as designed will meet the performance standards" should be removed because it is not the intent of the By -Law. Ms. Matthew said the By -Law states that if an area is listed as a Rare Species Habitat and the applicant disagrees, then the burden is on the applicant to prove it isn't significant habitat, not to show how the project is going to affect the habitat. She said It should read [The burden of proof is on the applicant to show that the Vernal Pool or wetland area is not a significant habitat area]. Attorney Hucksam said he would not recommend any major change to the language right now without review and the Commission should continue the public hearing to amend that section after Counsel has had a chance to review the proposed language. No public comments. Section 6. Emergency Projects Necessary for the Protection of the Health and Safety of the Residents of Mansfield. Mr. Healey discussed this with the Health Agent for the appropriate language. No comments from the Commission or the public. Section 7. Consultant Review. Ms. Matthew asked why paragraph 2, page 9 of 18 was removed [Access by the applicant to any consultant retained by the Commission under By -Law Section (5)(5.2) shall only be through the Conservation Office. Questions, inquiries or comments shall be submitted to the Conservation Office in writing, unless at an on -site meeting, and then be provided to the consultant by the Commission. The Commission shall provide a copy of the Consultants response to the applicant]. Mr. Healey said it was decided this is wording that should be included in the contract document when an outside consultant is hired. Ms. Merrill stated that this is also consistent with the By -Law. William Clemmey noted the last sentence of paragraph 2 was removed, [The Commission shall provide a copy of the Consultant response to the applicant]. Ms. Merrill stated that this could be worked into the contract with each individual case. She said in some cases the Board might want communication between the applicant and consultant. Mr. Healey said depending on the nature of a specific project it may be in everyone's collective interest to allow free communication between people. Attorney Hucksam said usually this is a non -issue because when you are in a hearing, the applicant submits some material, the Commission needs consulting /study of those materials so the consultant provides the Commission within the context of the hearing and everybody see it. Section 8. Limited Projects. No comments from the Commission or the public. Section 9. Resource Replication Requirements. William Clemmey asked if this is a subset of the DEP replication requirement. Is it more than what DEP requires or within what DEP requires. Ms. Merrill said the regulations cite the definition from 310 CMR. The Town does not require larger replication ratios Section 10. Conservation Restrictions. No comments from Commission or public. Section 11. Enforcement. Ms. Merrill stated that the dollar amount of the penalty was changed to be consistent with the By -Law. Mr. Flynn asked what the penalty current is. Ms. Merrill said it is $50.00; it was proposed at $100.00 but the By -Law only allows a penalty of $50.00. Section 12. Snow Removal. No comments from the Commission or public. Section 13. Application Requirements. Mr. Healey said the application must be filed with the Commission at least 10 business days prior to the public meeting to give the Commission the time to review the application. William Clemmey asked when the ad must be placed in the local paper. Ms. Merrill said the ad is placed using the guidelines in the Wetland Protection Act; the ad has to be placed five (5) business days prior to the hearing. Plan Requirements, page 15 of 18 - William Clemmey asked if the plan requirements listed in the By -Law are the same as the ones listed in the Regulations or is there a different set of requirements and how does this correlate to DEP requirements; are the requirements beyond DEP in the By -Law? Mr. Healey said the By -Law requirements are the same as the DEP requirements. Leonard Flynn asked if an application is not complete and does not meet the requirements of the Board, does the hearing start or is it delayed until the submittal is completed? Ms. Merrill said that an incomplete application is not accepted as a full application and is not processed. Mr. Flynn said he has been on many boards where an applicant will submit the application late and /or incomplete and sometimes giving only 3 days for the board to act on it. Attorney Hucksam said this is a good point; the purpose of having very specific application requirements in the Rules and Regulations is to deal with that issue. Mr. Flynn asked who reviews and approves or rejects the applications. Ms. Merrill said she reviews and works with applicants to get a complete application. Mr. Healey said the Wetlands Protection Act speaks to this also. Mr. Flynn said he thinks there should be a sequence that any application goes through; subdivisions should start and go through a routine route rather than at the discretion of the applicant going to the board he feels he is most likely to get a approval. Ms. Merrill said even though it does not specify timing, a public hearing on a project may commence before other applicable Town board /commissions /departments have permitted the project, written proof of such board /commissions /departments approval of the project, according to the plans previously submitted to the Commission as part of the Request for Determination of Applicability, Abbreviated Notice of Resource Ares Delineation or Notice of Intent, must be provided before any hearing is closed and a permit is issued by the Commission. Spelling error in 2nd bullet point. "add" instead of "ad ". Mr. Mulkern asked if the Commission can review each section, make any corrections needed and motion to approve. Attorney Hucksam said he would like to review the last paragraph on page 8 of 18 (section 5 —rare species habitat), rather than change the language tonight. Ms. Merrill agreed. She said without addressing that one part tonight, the Commission could move forward tonight to adopt the Rules and Regulations as written but if the board does not accept the paragraph on page 8 of 18 as is, the Commission will need to make the change by continuing to the next available hearing, March 17, 2014. She said this would be a small change to the document and if the Regulations were approved tonight, the Commission can add an amendment at the next public meeting /hearing. Attorney Hucksam said the Commission could adopt the Regulations tonight and then come back to look at that section and make a further amendment to address Ms. Matthew's concerns. He noted the Commission would have to give notice of another public hearing to amend the regulations. He said the board should move to repeal the previous Rules and Regulations and then adopt the Rules and Regulations reviewed tonight with the typographical corrections as discussed. Mr. Healey made the motion to repeal the previous Rules and Regulations of the Town of Mansfield Wetland Protection By -Law, Chapter 15, adopted June 20, 2011 and amended July 16, 2012 and adopt the Rules and Regulations identified as General Rules and Regulations of the Town of Mansfield Wetland Protection By -Law, dated February 24, 2014 with the typographical corrections as discussed at the February 24, 2014 meeting. Mr. Turnbull seconded the motion. Motion passed 5 -0 -0. Town Manager William Ross addressed the chairman and added his thanks to the Commission for their hard work on the Rules and Regulations and was appreciative of their service to the Town. Mr. Mulkern adjourned the hearing at approximately 8:30pm Joseph Mulkern, Chairma Date