HINGHAM CONSERVATION COMMISSION
October 20, 2008 at 7:00 PM Central Meeting Room North
MEETING MINUTES
Present: Samuel Chapin, Chairman, Eugene Babin, Vice-Chairman, Doug Harvey, Carolyn Nielsen, Charles Berry, Bill Grafton and Cliff Prentiss, Conservation Officer
Absent: None
7:00 PM
Old/New Business
Harbor Development Committee – Chris Daly
5 Pinecrest Road - DEP SE 34 0997 – Applicant - John Lundy
Discussion - Administrative Consent Order – In the Matter of Bare Cove Park
Approve Draft Minutes 10 6 08
7:15 PM
Requests for Determination of Applicability - None
7:30 PM
Notice of Intent
4 Steamboat Lane – DEP SE 34 0980 – Continuance requested to 11/3/08 Conservation meeting
Applicant: Lelia Stokes Weinstein / Representative – Phil Spath, Rosano, Davis, Spath Engineering
Requests for Extensions
Dennis Road – DEP SE 34 0822
Applicant: Michael Ferrara / Representative Attorney Robert Barret
Derby Street Shoppes – DEP SE 34 0706
Applicant: W/S/M Properties / Representative Steve Solbo-BSC Group
Order of Conditions*
302-304 Whiting Street – “Derby Brook Housing Community” – DEP SE 34 0954
Applicant: 302-304 Whiting Street LP / Representative – Gary James, James Engineering
Certificate of Compliance
2 Beach Lane – DEP 34 – 0868 – Applicants: Michael McPherson/Mary Ann Frye
Old/New Business
1. Hingham Harbor Development Committee – Chris Daly
• Purpose to have a discussion and provide an update to the Commission on where the HHDC is on the Dock & Pier Policy
• Have researched policies on 10 other coastal towns
• Would like to present a rough draft to the Commission to see if the Commission wishes to move forward with it, revise it and present it as an Article to present at next Town Meeting
• Will be speaking to the Planning Board also
• Perhaps there could be a joint meeting between the Conservation Commission and the HHDC
• HHDC is already working with someone on the Advisory Committee
The Conservation Officer noted that other towns have a Dock & Pier Policy via the Wetlands Bylaw.
Conservation Office to find out how much time there is for submittals for the Town Warrant, as timing is a factor. The Conservation Commission looks forward to seeing the draft.
2. 5 Pinecrest Road - DEP SE 34 0997 – Applicant - John Lundy
Request Commission for an amendment to an Order of Conditions
Chairman Chapin:
• Noted that he was not at the hearing but had read the letter submitted by Mr. Lundy dated 10/6/08 and reviewed the drawings submitted
• Noted that the applicant had filed a NOI sometime in August
• Town meeting passed a revised wetland bylaw in April that changed the setbacks
• Prior to April 1st the setbacks were 35 feet; the bylaw changed the setback to 50 feet.
Mr. Lundy:
• Wishes to have the Commission grant him a “grace period/ or relief” from when the change was made, and would like to use the old 35-foot set back for his barn vs. the new 50 foot set back
• Does not want to blame anyone, but would like the Commission to put themselves in his shoes
• Summarized his letter of 10 6 08 to the Commission stating that he conferred with the Conservation Office in early 2008 and was informed that the applicable setback was 35 feet, and then was not notified that the setbacks had changed to 50 feet
• Using the new set back of 50 feet will cause him a financial hardship
• Moving the barn an additional 15’ will save a 7 foot oak tree, move the barn back from the drive way, and also move the barn back further from the neighbors home
• Barn’s use will be a 2nd floor home office, 1st floor general storage
Chairman Chapin asked Mr. Lundy for an engineered drawing of the property. Mr. Lundy pointed out the 50’ and 35’ set backs, and stated that the grades would not let him move the building. Chairman Chapin said he saw no problems with the elevations, and Mr. Lundy responded that that the grades do not seem to be correct on the plans.
Chairman Chapin:
• Suggested Mr. Lundy get a better topographic survey to accurately reflect what is on his property
• Gave an opinion that the floor elevation of the barn, grades and driveway could be changed
• Stated that it appears there is other space on your property to accommodate what you would like to do
Mr. Lundy agreed that all those things could be done, but he is trying to achieve a certain look, to try and get the barn away from the house as much as possible and trying to save a tree, and keep away from the neighbors.
Motion: Commissioner Berry made a motion to amend the Order of Conditions to the 35-foot set back.
Second: Commissioner Harvey In Favor: None Opposed: All
Discussion - Administrative Consent Order – In the Matter of Bare Cove Park
Chairman Chapin’s summary:
• Been in the works for a couple of years, discussed and signed a consent Order dealing with Hingham Mutual
• 2nd part of allowing work to be done giving direction to the Enforcement Orders that were issued a few years ago
• Town signed a Development Agreement with Mr. Hastings, the Developer for the Project Turnabout property
• Agreement contained an implication, if not language, preserving a view from the residential development to the Weymouth Back River
• Developer then cut vegetation or caused to be cut vegetation on land that he was not authorized to do so on Bare Cove Park, some on Hingham Mutual
• Cutting done in an area where the Bare Cove Park Committee had also been doing some regular mowing
• Conservation Commission issued an Enforcement Order to the Bare Cove Park Committee and Hingham Mutual addressing unauthorized cutting within the Buffer Zone and within the Riverfront Area
• After that the Bare Cove Park Committee stopped mowing
• Some plantings were done, but they were not successful
• Developer has been working with the Town to come up with a resolution to this
• Consent Order for Hingham Mutual was signed last month, as part of that solution
• This Consent Order between the Back River developer and the Town is the next part.
Conservation Officer:
• Hingham Mutual is now working under the Administrative Consent Agreement with the Commission
• The Bare Cove Park Committee (BCPC) and the developer in agreement had done some vista clearing and pruning along the River, where the Commission issued an Enforcement Order since they were working within Riverfront and 100 feet of wetlands without a permit
• BCPC worked with the DPW to replant some of the understory of the shrub layer of the cleared area along the River, unfortunately a lot of that was not successful due to a drought period
• Developer of Back River had come up with a planting plan developed by LEC, which the Commission has approved which will enhance the understory
• Part of the ACO will allow them to complete that
• This ACO gives them relief in relaxing the Enforcement Order that the Commission has issued
• ACO is the second part of the Enforcement Order to correct and complete this work with Best Management Practices and oversight
• ACO has been reviewed by Town Counsel, and John Shea, attorney for Back River and others
Chairman Chapin asked the Commission if they have had a chance to read the draft ACO
It is important to note what it does and doesn’t do:
• It doesn’t convey any property rights
• It addresses vista pruning and mowing
• It notes that Back River will give notice to the Town when pruning and mowing needs to be done
• Town has 15 days to do that, if the Town does not do it on the Bare Cove Park Property within 15 days, then with notice, Back River can go in and do it
• There is a Vista Pruning Plan and two Planting Plans – the “Bibby Plan” for the so-called “Dagger” parcel, for which Dan Orweig, Landscape Architect, had first provided a plan and John Bibby, of the DPW Tree Department, had augmented at the request of the BCPC; and the LEC Plan, for the land along the River
• The “Dagger” parcel is not addressed under the ACO. It is covered under a previous Order of Conditions and is not part of the Enforcement Order. The ”Dagger” is outside of the 200’ Riverfront Area so it is outside of the Commission’s jurisdiction.
• Consent order addresses the planting plan and the vista pruning plan called the MVP Plan for Mowing and Vista Pruning
The Conservation Officer stated that some of the proposed mowing is within the Riverfront Area but the mowing in the triangle which is in contention between Back River and Bare Cove Park is outside the jurisdiction of the Commission.
John Shea, Attorney for Back River:
• ACO is inherent in the wetlands business
• This ACO does three things
1. Exhibit 1, the LEC Buffer Zone Enhancement Planting Plan, is designed to fix the problem that occurred after the Enforcement Order and the DPW’s attempt to plant, and the plants died. This is a jurisdictional area and something that Back River is willing to do.
2. It addresses the “Dagger” in that the “Dagger” is only under jurisdiction because certain trees were being transplanted from areas that are in the jurisdiction of the Commission. That is covered in the Development agreement and in the Orwig Plan. In July, when we were working with Town Counsel, Board of Selectmen and a representative from the BCPC, one of the things the BCPC wanted was enhanced planting of the “Dagger” area. That is provided by the Bibby Plan, which includes a list of additional species that Back River Development is willing to put in. That enhances the plantings over the Orweig Plan that was part of the Development agreement.
3. Sets up the MVP Plan, which is Exhibit 2, showing the various areas including the triangle area shown in green that has been traditionally mowed (Exhibit 2 is titled Mowing and Vista Pruning Plan, Bare Cove Park, by LEC, dated October 26, 2007, revised October 15, 2008). The BCPC has elected to only mow the strip along the road way and not the rest of it. Back in Nov. 2007, we had a written agreement with the BCPC called the Bosworth agreement; that represents what the BCPC negotiated with us.
The ACO doesn’t grant the Back River developer any right to go in and mow without due notice to the BCPC and the DPW. If they elect not to perform the work, then Back River will have the ability to perform the work. There will be prior notice to the Conservation Officer, who would be observing and making sure it is done using best management practices.
The MVP plan is relative to vista pruning, in the area shown in red in Exhibit 2. The 2005 Development Agreement with the Town is very explicit about being able to undertake vista pruning. This plan doesn’t say how it should be done - there are general guidelines set out in the agreement about such things as the caliper of the trees and removal of dead debris on the ground - but there is a requirement that a specific scope of work has to be put together by an arborist. It has to be presented to the Conservation Commission, for review and approval. After it is approved, the Town has the ability to perform the work itself, or if it elects not to, the Back River people can perform the work; but not without prior notice to your Conservation Officer. We didn’t want a situation as happened back in 2006, where, although there was a professional arborist involved, the work that was done didn’t satisfy either the Conservation Officer or the Commission.
The MVP Plan is essentially three parts. One, it covers the mowing of the area, traditionally mowed (shown in green on Exhibit 2), but because of differences, it hasn’t been mowed as it has been in the past. Two is the vista pruning as described, within the area that would be staked and marked, with a very specific scope of work to be presented to the Conservation Commission. It grants an ability to do some work that has been traditionally done with finer controls on it. It is up to the Town who performs the work. Back River hires the professionals to put together the plan and the Town decides whether they want to do it. The Town has the obligation to perform under the Development Agreement. If the Town chooses, Back River can perform the work. Three, an annual report will be submitted to the Commission on the vista pruning and mowing, so you will have checks and balances, in addition to having a person in the field making sure it is done correctly. Best Management Practices and an approved scope of work are required, so you have the ability to review a written report to make sure it is done right or make suggestions in the future on how it may be done better.
There was a concern with the last ACO dealing with Hingham Mutual whether or not the Commission’s hands were tied. There is very explicit language in this ACO dealing with Back River that notes that the Commission has the authority to take additional enforcement action for failure to perform the work in accordance with this ACO.
Chairman Chapin:
Do the Commissioners have any questions?
Commissioner Berry - Page 6C –needs clarification on the time line – 15 days, 30 days dealing with the scope of work. How do the 30 and the 15 days relate to each other?
John Shea – the 30 days do not start to run until we have an approved scope of work from the Commission. That written notice includes an approved scope of work, the written notice starts the 15-day period.
The Commission noted that the wording of this part is not clear in the ACO, it is confusing, and awkwardly written and would like to see a time line.
Commissioner Nielsen would like to see language in the MVP Plan that all work must be consistent with the Rivers Protection Act and the Wetlands Protections Act. Would also like to see language inserted similar to the other ACO dealing with Hingham Mutual that protects wildlife.
Chairman Chapin noted the email received today (10/20/08) from the Chairman of the Bare Cove Park Committee (BCPC):
• BCPC expresses its opposition to the ACO
• A number of considerations need to be addressed as apply to these lands
• State Law – Article 97 – Town Meeting approval is needed to assign private rights to public property. Chairman Chapin responded that we have discussed this question tonight and that it does not assign private rights to public property.
• Town Bylaws –Article 5 – Selectmen gave maintenance and control of Bare Cove Park to the BCPC. Chairman Chapin responded that there is no doubt that the Selectmen have the authority to make decisions over this town owned land. The Selectmen appoint the BCP Committee, the Selectmen signed the Development Agreement with Mr. Hastings and Back River. In the final analysis, the Selectmen have the authority.
• State Law Chapter 131s 40 – Wetlands Protection Act.
• Other Considerations including the designations as ACEC and scenic river by the State, and as a wildlife refuge by the Town.
• Bare Cove Park Committee was never consulted in the creation of the ACO.
• BCPC asks that the Conservation Commission not approve this consent order.
A long discussion with many members of the BCPC and other interested parties then took place. The speakers included Paul Doyle for the BCPC; John Swanson and Ron Clough, former chairmen of BCPC; Jim Claypoole and attorney John Shea for Back River; Mary Anne Jackson and Joe Zaparewski of the Back River Watershed Association; and Joe Sababino, Resident.
The BCPC believes they are the stewards of the land and approves of the planting plans but feel that Back River is trying to circumvent them regarding the vista pruning and mowing. The BCPC did previously approve vista pruning and mowing but now feel differently about it, and maintain that the pruning and mowing was to be a one-time event. They feel they were intimidated and browbeaten by the developer. Their representative Scott Bosworth negotiated an agreement with the developer, and signed an agreement that was never reviewed nor approved by the BCPC.
Other than the jurisdiction provided by the Wetlands Protection Act and regulations, the Back River Watershed Association and some members of the Commission have questions concerning who has the authority to authorize activities and what activities may be authorized on Bare Cove Park land. These questions address the Development Agreement with Back River developer Tom Hastings and subsequent agreements and understandings as well.
Mr. Shea reiterated that vista pruning is clearly part of the Development Agreement and that there was general language about maintaining the scenic vista. He reported that the BCPC voted favorably on what Back River had proposed after Mr. Bosworth of the BCPC had negotiated the agreement and worked out the language, then Town Counsel approved it and the Town Administrator directed Mr. Bosworth to sign it on behalf of the BCPC. After work was undertaken by Mr. Hastings in response to that agreement, Mr. Hastings received a letter saying that a majority of BCPC had changed their mind. Back River then reached out to the BCPC to try and work things out; this was not successful, with the BCPC taking the position that the Development Agreement never should have been signed. Back River then went to the Selectmen (who signed the Development Agreement) and asked if they would resolve this issue. The ACO is the result.
Chairman Chapin brought the discussion to a close and asked if Commissioners had any further questions or comment.
Commissioner Berry:
If the rights are not in the Development agreement, then I’m not comfortable creating them in this fashion,
The jurisdiction over the portions of the land that this agreement addresses that is parkland, I don’t know the answer to that, what Town board or Committee or what state laws apply? I’m uncomfortable endorsing this agreement based on what I know and heard.
The Conservation Officer reviewed the geography of the land and activities and the Commission’s jurisdiction. All the Conservation Commission is addressing is the wetlands aspect of it – the Commission can’t grant Mr. Hastings any rights or any Back River people any rights. If the Commission doesn’t want to give them permission to go in and have a standard for pruning or a potential trimming of trees and cutting of brush for a vista along the river, then the Commission does not have to endorse the ACO.
Chairman Chapin polled the Commissioners to gauge whether to call for a motion to support the ACO.
Commissioner Babin – I am prepared and will be voting to oppose.
Commissioner Harvey – I am prepared to vote.
Commissioners Grafton and Nielsen – would like to see the Development Agreement before they can vote.
Commissioner Berry - not prepared to vote.
Chairman Chapin determined that a successful vote was not possible and asked the Commissioners to take the initiative to pursue those aspects that they are not comfortable with so that a vote can be taken at another meeting.
Approve Draft Minutes 10 6 08
Motion: Commissioner Grafton motioned to approve the 10/6/08 minutes as amended.
Second: Commissioner Berry In Favor: All Opposed: None
Commissioner Babin abstained.
Notice of Intent
4 Steamboat Lane – DEP SE 34 0980 –
Applicant: Lelia Stokes Weinstein / Representative – Phil Spath, Rosano, Davis, Spath Engineering
Continuance requested to 11/3/08 Conservation meeting.
Requests for Extensions
Dennis Road – DEP SE 34 0822
Applicant: Michael Ferrara / Representative Attorney Robert Barret
The Conservation Officer noted that the request was received in a timely manner, but that the Order of Conditions had not been recorded in two years and ten months and the Office informed the applicant that no extensions would be entertained until the Order has been recorded. There are unresolved issues with the Natural Heritage and Endangered Species Program dealing with endangered species and a Conservation Restriction which is still is not in place.
The Commission will ask the applicant to come in and explain the status of the unresolved issues and to have all his plans and documents ready that are missing before the Commission will take up the matter. .
Derby Street Shoppes – DEP SE 34 0706
Applicant: W/S/M Properties / Representative Steve Solbo-BSC Group
Conservation Officer: This is a request for an extension for a detention basin and to finish the plantings and wetlands mitigation. His recommendation to the Commission is that it should be granted.
Motion: Commissioner Babin motion to grant a one-year extension.
Second: Commissioner Grafton In Favor: All Opposed: None
Certificate of Compliance
2 Beach Lane – DEP 34 – 0868 – Applicants: Michael McPherson/Mary Ann Frye
Discussion: The Conservation Officer reported that the project is complete
Motion: Commissioner Nielsen motioned to issue the Certificate of Compliance.
Second: Commissioner Harvey In Favor: All Opposed: None
Order of Conditions*
302-304 Whiting Street – “Derby Brook Housing Community” – DEP SE 34 0954
Applicant: 302-304 Whiting Street LP / Representative – Gary James, James Engineering
The Conservation Officer noted that this was the first project incorporating the new Stormwater Management regulations to be permitted by the Commission. The Commission’s consultant John Chessia and the applicant’s representative Gary James worked hard on refining the design. John Chessia assisted with the writing of the Order of Conditions.
Motion: Commissioner Grafton motioned to issue the Order of Conditions.
Second: Commissioner Berry In Favor: All Opposed: None
Meeting Adjourned at 9:40 p.m.
Respectfully submitted,
_________________________
Cliff Prentiss, Conservation Officer
Approved as amended on 12/1/08.