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MEETING: Conservation
DATE:
May 12, 2010 - 07:00 PM |
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Minutes
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Minutes of Conservation Commission
May 12, 2010
Present were: Chair, George Kingston; Vice Chair, Martha Hamilton, Mary Swords, Colleen Foerster and Sheron Williams. Michael Salvon and Jody O’Brien were not present.
Continuation of Public Hearing – Bella Vista Estates, DEP file #150-383
Chair, George Kingston continued the public hearing for Bella Vista Estates.
Present were representatives from Baystate Environmental, Steve D’Ambrosio and
Dan Nitchze and applicant Joseph Pacella.
Mr. D’Ambrosio said that there has no new information submitted and all of the information that has been submitted was repackaged into one document as requested by the town.
Mr. Kingston said that he knows that the Commission had a chance to review the information and addressed the Commission for any comments.
Ms. Swords said basically if the project is approved she thinks that it’s imperative that the Commission has an on site engineer when the critical construction phases occur such as when the drainage systems are in, the check of the detention basins and make sure they are properly constructed. She said that individual notice of intents should be required for the wetland lots. Ms. Swords said the critical thing is the ability to site sump pump disposable water even on non-wetland lots to make sure they are not impacting the drainage system or if they are 100 or 200 feet away from the wetland making sure that water is not reaching the wetlands. She said one of the things is that if the homeowners fail to organize a homeowners’ association it’s important that the Commission retains the right of entry to determine the status of the detention basins. Ms. Swords said that she thinks the Commission should reserve the right for the Commission to hire a consultant to determine the status of the detention basins and that the homeowners would be assessed the cost of that consultant. She said one of the things that concern her most is the fact that they are still pretty much in the dark about the individual building lots and in her mind she doesn’t think the Commission has the information to calculate the runoff that might be coming from the wetland lots especially the lots that have a high water table. Ms. Swords thinks what they might want to do is hold back on one or two of the lots in critical areas in case that another detention basin is needed if in fact there is water coming from the wetlands lots or the other lots for that matter. She said if it’s not needed then those lots could be released to market and before construction starts they should review the capability of the initial drainage systems to make sure they can handle the flow that’s already there. Mr. Kingston asked Ms. Swords what she is specifically suggesting, that the Commission ask for essentially what they have done in the past is one or two lots as a bond. Ms. Swords said not so much as a bond but if in fact additional detention basins would be required for one or two lots be marketed last and then the Commission could determine if in fact the detention basins that are already there and drainage systems that are already in place are going to be able to handle the flow that coming off the developed sites. She thinks they could include it in the special conditions that the critical lots be not built on until the Commission determined if in fact another detention basin is needed.
Mr. D’Ambrosio said that they designed the stormwater management system to handle peak runoff from storms that are going to be much greater than what you are going to see coming from sump pumps. He said that was something that Tighe & Bond was asked to look at and they responded with some comment that the system in their estimation is adequate to handle. Ms. Swords said they are not taking into consideration all of the houses that are going to be built and the high water table that’s going to affect most of the housing construction.
Mr. Nitchze said those are two different issues, the runoff coming from the roofs has all been calculated into it and it has nothing to do with ground water. Ms. Swords asked if it would matter so much if they held back on one or two lots and the site engineer said a particular spot would be another detention basin if when they get into the actual construction, what was going on didn’t match, what was exactly what was represented in the Notice of Intent. She said that it would probably be figured out in a couple of months and she isn’t sure that they are going to market all 33 lots all at once. Mr. Nitchze said that he understands what she is saying but the fact of the matter is that the Commission had a professional go through their proposal and they said that the stormwater management system with the full build out was acceptable. He said that he doesn’t understand during construction anything is going to change. Ms. Swords said all she is asking if there is a critical area that perhaps another detention basin would fit in if in fact the construction site was a lot more difficult and that the drainage system could not handle what was on the construction site. Mr. Nitchze said he understands the protective concept that they have and that things can change on the site but he would think in that particular scenario they are in the new standards for stormwater management and they reviewed the site more than any project in the past has ever done prior to designing a stormwater management system in terms of site investigation. He said in Tighe & Bond’s review they had no interest in the project other than to protect the Commission’s interest and they clearly reviewed it and the service water that she is talking about that would go to the detention basin is not water that would be affected by ground water.
Mr. Kingston said first of all the Commission has required the applicant to pay for an independent consultant, which has been done. He said they have the wetlands protection fund which they could use to hire an engineer after the fact. Mr. Kinston said if in fact upon commencement construction the calculations and water flows that have been presented as part of the Notice of Intent and that are referenced in the Order of Conditions prove to be not what’s experienced in the field then they have a case where the Order of Conditions and the Notice of intent are not accurate and the Commission could bring that back in that the actual construction is not being consistent with the results that were presented. He said then it would be revisited at that time and he doesn’t think that holding out lots is an appropriate way to do it and thinks they could address the issues if necessary with DEP. Mr. Kingston said that he agrees with Ms. Swords in terms of right of entry when individual filings for the individual houses are submitted to include where the foundation drains and sump pumps are going to be. He said that they should demonstrate it’s not going to negatively affect the overall drainage of the site and given that he thinks they should be able to control it. Mr. Kingston said that he appreciates Ms. Swords concern and he is also trying to think how they can legally do it to because unless they take it as a performance bond he is not sure there is legal status for requiring a certain construction sequence with the Commissions ability to deny them to sell a particular lot.
Ms. Williams said she is concerned with the following areas:
• While it is possible to write all manner of restrictive agreements and turn over responsibility to a "Homeowners’ Association" to carry them out. It is not possible to ensure that any such association will be formed or, if formed initially, will remain intact.
• Even if such an association exists, if a homeowner breaks with a restriction, how do his neighbors force him to comply?
• At the very worst, enforcing such a covenant requires homeowners to hire a lawyer at their own expense to take the non-compliant neighbor to court. At the least, implementing the covenant means one must risk the enmity of one's neighbor by bringing a complaint about him to the association; that is, if an association comprising a majority of homeowners continues to exist over the years.
• Do routine inspections of detentions ponds and follow long term pollution prevention plans.
• Suggests that the Commission stop allowing such Covenant provisos and find a way to make the developers the responsible ones?
Mr. Pacella said the only thing he could say to that is that the covenants are only as good as the willingness of the homeowners to enforce them or the association. He said he has written over forty covenants over the course of his practice and has a document that is as tight as that particular document as a result of some of the comments made by the Commission. Mr. Pacella said his understanding is how it’s going work is that those homes will be assessed and when they are going to be sold or refinanced a document from the association will be provided that says that the dues are paid. He said that he would not have a problem adding to the covenants that if a homeowner is found in violation the homeowner would be responsible for the legal fees incurred by their neighbors to enforce it and would give the Commission a little more punch. Ms. Williams asked if there was anything in the covenant on dues. Mr. Pacella said there are annual assessments, a budget that is done and the budget will clean out various detention areas, it’s going to pay for the engineer that has to come out once a year to make sure that they are working. He said it will also take care of landscaping issues like the cul-de-sacs that are shown on the plan and they will tighten it up as much as they can. He said really it is essentially the thirty homeowner’s as pushed by the Conservation Commission or Planning Board or DPW to enforce a particular by-law. Mr. Pacella said those that concern the Commission he thinks they have every right and violate the Order of Conditions and it is going to be a continuing Order of Conditions and he doesn’t ever see a situation where the Order of Conditions is going to be released to all thirty houses. Mr. Kingston said the Commission will require as they normally do on the Order of Conditions that certain conditions run with the deed.
Ms. Hamilton asked if the limit of work lines be in place before the fill is dumped. Mr. Kingston said yes and the Commission typically requires that the limit of work line be monumented and that the siltation controls be established on the limit of work line prior to any work and the Commission goes out there and look at it and agree that it’s where it’s supposed to be. Ms. Hamilton asked if they could be sprayed bright orange until people move in. Mr. Kingston said the bigger problem is ongoing where after it’s constructed and the houses are and the Commission has enforced against people removing them in the past.
Ms. Foerster said her only comment as to whether or not they included in their filing addressing the Town’s Wetland By-law. Mr. Nitchze said they comply with it and it’s included in the Notice of Intent.
Mr. Kingston said since they are still waiting the new homeowners’ association agreement they could include that statement also that they comply. He said that he agrees with a lot of the concerns that the Commissioners have and he doesn’t have anything to add to it. Mr. Kingston said that he thinks they are very close to approving the project and If they could get the homeowners’ association and a statement of compliance with the town by-law they could it probably could be closed at their next meeting. He said that he would like to circulate draft orders between now and then so that they could write orders at that meeting. Mr. Kingston then addressed the audience for any questions.
Ann Ruthford, 635 Prospect Street asked how many of the actual homes will be in the
wetlands. Mr. D’Ambrosio said fifteen homes.
Lesley Lorent, 664 Prospect asked who from the town is going to monitor the wetlands to make sure the Order of Conditions are enforced. Mr. Kingston said that there are reporting requirements in the homeowners’ association to report to the Conservation Commission so they should be monitored whether they are getting them or not. He said if there are any issues from the abutters down the road they should be addressed to the Conservation Commission that can take them up with the homeowners’ association of the subdivision. He said as pointed out the stormwater management systems will be under a continuing Order of Conditions that will go with the deeds so that should there be failure of the system due to lack of maintenance, the town is in a position to enforce against that as a violation of the Order of Conditions.
Mr. Kingston addressed the Commission for any further questions. There being none and upon motion duly made by Mary Swords and seconded by Sheron Williams, the Commission voted unanimously (5-0) to continue the hearing until May 26, 2010 at 7:00 p.m.
Continuation of Public Meeting – Paul & Teresa Kanev, 53 Old Farm Road
Chair, George Kingston continued the public meeting for Paul & Teresa Kanev of 53 Old Farm Road. Mr. Kingston said there were two separate issues on the property. He said one is that the house as built and the yard as built is in violation of the original Order of Conditions, wetlands have been filled in the rear of the house. Mr. Kingston said which is a separate issue from the pool but it precludes being on the right side of the office where they had originally laid it out. He said in fact they would be beyond the original limit of work line with the pool so it cannot go in that location. Mr. Kingston said that he checked with the Planning Board Director and she said there is the possibility of putting it on left side of the house as you face it provided it’s 10 feet back from the main structure. He said that they also need to deal with the issue of the area that’s been filled in and a deck that’s over the limit of work line, with no filing on that. Mr. Kingston asked the applicants if they were purposing to put the pool on the other side of the house.
Brian Juliano, Representative from Juliano’s Pools said that Mr. Kingston determined that someone had encroached upon the wetlands. He said now that has left them with only one option being off the driveway on the left hand side and by proposing a pool it has opened up a can of worms.
Mr. Kingston asked Mr. Kanev if he purchased the house before it was built or after. Mr. Kanev said before. Mr. Kingston said because there is an Order of Conditions on the lot which is recorded with the deed and when the property is sold a Request for Certificate of Compliance is requested that states it is built according to way it was originally approved. He said if it is not built that way then a Certificate cannot be issued which means that the buyer probably can’t get a mortgage which complicates selling the house. Mr. Kingston said when they purchased the property they should have received a copy of the Order of Conditions and the approved plan which showed the building envelope and the limit of work line and the building in fact exceeds the maximum building envelope that was presented and approved back in 1995. He said that the subdivision has gone through several owners and some bankruptcies involved and someone had gone in there and bought some of the lots out of the bankruptcy. Mr. Kingston said that the Commission has to look at what was actually approved originally and referred to the plan showing where the limit of work line was and the house was actually pushed back right up against the limit of work line. He referred to conditions 5 & 6 of the Order of Conditions which required limit of work line markers and he said that there are limit of work line markers out there and a portion of the wetland is now lawn which needs to be corrected. Mr. Kingston said that there are two ways they can do that, the first way would be to hire an Environmental Consultant and file a new Notice of Intent to restore the wetlands or secondly the Commission issues an Enforcement Order which gets registered with the State and DEP and he would rather avoid that because they could hit them with big fines and the Commission would rather work with them to get things back as close as they can be. He said that they could also replicate which mean to create some additional wetlands over on the side that would compensate for that and asked them to contact Environmental Consultant within the next month and come back to the Commission with a proposal for how they want to go forward on it. He said as for the pool that is independent of that issue but until the wetlands impingement is resolved the pool can’t go there.
Ms. Kanev said so it needs to be restored so the pool can never go there. Mr. Kingston said unless they decide to replicate some place else and until that Notice of Intent is dealt with and the Commission either approves replication or restoration the Commission can’t approve putting the pool there. He said if they decide to move the pool they could consider it separate from violation and work on that over the summer to get it resolved and still let them get their pool in at some point. Mr. Kingston said that permanent limit of work markers need to be put in as shown on the plan and could be concrete cylinder six inches above the ground. Ms. Kanev said that the deck goes right to the limit so they won’t have to take it down, correct. Mr. Kingston said no that he thinks they can deal with that and told them to talk with a wetlands person.
Mr. Kanev asked if the rules for replication is it similar square footage? Mr. Kingston said it’s usually about 20% more and the good news is that they are in the same watershed and the same area so it makes it simpler. He recommended that once they get the site fixed they apply for certificates of compliance for the Original Notice of Intent and then for the Notice of Intent that’s going to be filed for the replication.
Mr. Kingston asked what they would like to do about the pool. Mr. Juliano said that they would like to put the pool on the north side of the house. Mr. Kingston said that the Commission could make a determination that the installation of the in-ground pool would be located on the north side of the house as describe in option 2 on the plan. He then addressed the audience for any questions. There being none and upon motion duly made by Sheron Williams and seconded by Colleen Foerster the Commission voted unanimously (5-0) to close the public meeting. Upon motion duly made by Sheron Williams and seconded by Colleen Foerster voted unanimously (5-0) to issue a negative determination.
There being no further business and upon motion duly made by George Kingston and seconded by Mary Swords, the Commission voted unanimously to close the meeting at 8:30 p.m.
For the Commission,
George Kingston, Chair
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