HINGHAM CONSERVATION COMMISSION
July 13, 2009 at 7:00 PM Central Meeting Room North
MEETING MINUTES
Present: Eugene Babin-Chairman, Carolyn Nielsen-Vice-Chair, Charles Berry, Scott McIsaac, William Grafton, Cliff Prentiss, Conservation Officer
Absent: Doug Harvey
CONSERVATION AGENDA
July 13, 2009
7:00 PM
Old/New Business
Approve Draft Minutes – 6/29/09, 6/30/09
Discussion:
Draft Weir River Smelt Habitat Restoration
230 Ward Street Violation – Enforcement Order
7:15 PM
Requests for Determination
None
7:30 PM
Notices of Intent
280 North Street – Town of Hingham Bylaw Notice of Intent dated June 28, 2007
Applicant: Michael Borgen / Representative: Paul Mirabito, Ross Engineering Company, Inc.
12 Beach Lane – DEP SE 34 1008
Applicant: Vida Veitas / Representative: Rod Gaskell, SITEC
11 Steamboat Lane – DEP SE 34 1006 - Continuance
Applicant: Don Devaney / Representative: Gregory Morse – McKenzie Engineering Group
Certificate of Compliance
31-37 Fresh River Avenue – DEP 34 526
Applicant: Jim E. Bristol - Bates Bros. Seam-Face Granite Co.
Old/New Business
1. Approve Draft Minutes – 6/29/09, 6/30/09 – Site Visit
Draft minutes discussed.
Motion: Commissioner Nielsen motioned to approve the 6/29/09 draft minutes as amended.
Second: Commissioner Grafton In Favor: All Opposed: None.
Motion: Commissioner Nielsen motioned to approve the 6/30/09 draft minutes as amended.
Second: Commissioner Grafton In Favor: All Opposed: None.
Commissioner Berry recused himself from the vote from the 6/30/09 draft minutes as he was not present at the site visit to 230 Ward Street.
2. Draft Weir River Smelt Habitat Restoration/Weir River Leavitt Street Gauge Station
The Conservation Officer noted that Marine Fisheries has grant monies available to restore a rainbow smelt spawning habitat below Foundry Pond on the Weir River. During prior reconstruction, the Foundry Pond Dam spillway and basin were altered. The project seeks to restore the spillway basin to preconstruction conditions by establishing an in-channel island and the creation of two spawning channels. This will also benefit the migration river herring.
Weir River Leavitt Street Gauge Station has been shut down as of July 1, 2009 due to budget cuts at DCR as of July 1, 2009. The DCR stopped their $17,000 contribution to the funding. With the Commission’s permission the Conservation Officer will write a letter to Congressman Delehunt to try and get the funding restored and describe the importance of this gauge station.
Motion: Commissioner Grafton motioned to the support of the Draft Weir River Smelt Habitat Restoration and the letter of support for the Weir River Leavitt Street Gage Station to be funded.
Second: Commissioner Nielsen In Favor: All Opposed: None
3. 230 Ward Street Violation – Enforcement Order
The Conservation Officer asked the Commission if after their site visit on June 30, 2009; are they still in favor of having the Conservation Officer invite in a 3rd party to work with the Conservation staff to do soil transects and review the property with the Conservation staff?
Motion: Commissioner Nielsen motioned to give the Conservation staff authorization to obtain a soil scientist to look at 230 Ward Street with the staff.
Second: Commissioner Berry In Favor: All Opposed: None
4. Alternative Analysis Foundry Pond – Phase II
The Conservation Officer asked the Commission to read the analysis. The Commission should vote on the analysis at the next Conservation meeting to authorize the permitting aspect of this project. Conservation could then go to Town Meeting in the spring and note the costs to fix the pond. The concept is to dredge it. Preferred method is to use a float with a hydraulic dredge, pump it up onto the hill, put it into the silt socks, and cart it off to Bare Cove Park.
5. Emergency Certification Extension for Worlds End Culvert
The Commission’s last certification has expired, DEP has approved it, and the Commission must now update and extend their Emergency Certification under the TOH Bylaw to match DEP’s.
Motion: Commissioner Grafton motioned to extend the Emergency Certification Extension for Worlds End Culvert through August 12, 2009.
Second: Commissioner Berry In Favor: All Opposed: None
Commissioner Babin read the usual information about filings and public hearings.
Request for Determination of Applicability - None
Notices of Intent
280 North Street – Town of Hingham Bylaw Notice of Intent dated June 28, 2007
Applicant: Michael Borgen / Representative: Paul Mirabito, Ross Engineering Company, Inc.
Commissioner Babin read the correspondence dated July 13, 2009 from the applicant’s attorney requesting that the public hearing scheduled for this evening be continued to August 10, 2009.
Motion: Commissioner Berry motioned to continue the hearing for 280 North Street to August 10, 2009 with the applicant’s permission via the correspondence dated 7/13/09 from the applicant’s attorney.
Second: Commissioner Nielsen In Favor: All Opposed: None
12 Beach Lane – DEP SE 34 1008
Applicant: Vida Veitas / Representative: Rod Gaskell, SITEC
Presentation:
• Applicant (Ms. Veitas) and the current property owners are present tonight
• Proposal is to demolish a one story existing house; replace it with a two-story home with a 30-35% larger footprint, with a replacement garage, a concrete seawall is present and is fully landscaped
• Photo’s presented of the property
• New house will not be made wider, the garage will be pulled away from the street and from the McPherson/Frey property line and will be connected to the house.
• Lot is 7,000 square feet, existing house is ~ 1,000 sq. feet, existing garage is 400 sq. feet
• Proposed home is 1,517 sq. feet, proposed garage, 420 sq. feet
• Wetland resource areas: Land Subject to Coastal Storm flooding, Coastal Beach; Coastal Bank; Salt Marsh
• Land subject to flooding is not a velocity zone, work proposed is outside of velocity zone
• SITEC has done extensive permitting in this neighborhood, Coughlin property, redesign of the mini park on Wompatuck Road, apprised the Commission on the design of the flapper valve done on the McPherson/Frey property to alleviate flooding. Through a combination of projects SITEC has an enormous amount of knowledge on how this area floods, understands the drumlin, understands the water comes down the hill, understands that drainage gets trapped, understands how the McPherson/Frey property works, understands the topographic relationship to the Sloan property, understands how coastal flooding happens in this area
• Didn’t retain Dr. Rosen, a coastal geologist for this filing since we retained his knowledge from the previous filings
• Limited fetch area, the wave run is constrained due to the state park to the west, Grape Island to the NW, Bumkin Island and Sunset point, also constrain the wave energy
• Manifestation of this is two fold: shore line is accreting rather than eroding, healthy salt marsh exists only where there is benign wave action
• Documented the projects before accretion erosion rates – very stable
• From a regulatory point of view with respect to coastal flooding, DEP has decisions and experience – referenced the Whoriskey decision; compensatory flood storage and addressing diversion of wave energy in the 100 year flood plain – Regulations no performance standards for the 100 year flood plain – as long as you are in the A zone – (A5 – Elevation 12 feet mean sea level) it was deemed that you are talking about the Atlantic Ocean and you can’t displace it
• Diversion of wave energy, until you get a velocity zone, and within a velocity a zone, you don’t have enough wave energy to have the ocean function as flood water, no need to do any diversion analysis
• Identified that we are in a A-Zone, consistent with the level of review done for the Coughlin’s and the Mini Park, consistent with the engineer’s review Peter Williams – Vine Associates for Frye’s, we identified the velocity zone, we won’t have any effect on the volume of water or the diversion of wave energy
• Proposed Mitigation Measures that will allow the unimpeded flow of peak coastal flood storm waters; new concrete foundation for home and concrete slab for new garage will have Flood Vents.
• Proposed deck will be constructed on concrete piles
• First floor elevation of the reconstructed home will be raised above the FEMA 100 year flood elevation
• No filling is proposed, no change in the topography, no change redirection of any flows onto contiguous properties, gutter line will stay on Beach Street, tree line and vegetation will stay the same
• Did receive letter from Attorney Brodsky during the “11th hour” and have not had a chance to respond to it, I believe it is without substance.
Commission Babin
• Noted that he and perhaps the rest of the Commission have not had the time to review Attorney’s Brodsky’s letter, as it came late in the day of tonight’s meeting
Conservation Officer
• Property has town sewer, no proposed change in the seawall or beach, proposed new foundations will now meet building codes and will allow wave energy to pass through.
• Does not believe there will be any detriment by allowing this project and with the knowledge of the coast due to past filings in this area.
Commissioner Nielsen
• Plans are missing the 50-foot buffer zone required by the Town bylaw; wants to see it on the plans.
Mr. Gaskell
• Hope that this does not come off disrespectful – it is so obvious where it is – the plan, has a scale, just measure back 5 feet. All the natural vegetation is staying the same.
• We are proposing new construction (deck) in the 50-foot zone that is already altered as a lawn
Commissioner Grafton
• Would like to see mitigation via coastal vegetation plantings to offset any new construction in the resource area.
• Questions on how the smart vents work
Commissioner McIsaac
Comparing existing to proposed construction seems to be a better way of addressing items.
Commission Berry
Can you address the comment in the Brodsky letter that the plan submitted to the Zoning Appeals calls for stonewalls to be built on top of the concrete walls? Mr. Gaskell - Plans have been revised.
Conservation Officer
• Public Legal Notice went in the paper for this filing and 280 North St, but it did not appear for 5 working days which is required by the state act and the bylaw. It has been in for 3 working days and 2 weekend days.
• Practical aspect of this is that an abutter could raise a concern over this and necessitate a continuance to avoid an appeal on a technicality.
Commissioner Babin to the audience
If while the applicant is in front of any other board, if there are changes to the plan, mandated by the other Boards, it could result in the reopening of our permitting process.
Commissioner Babin opened up the hearing to public comment.
Michael McPherson – 2 Beach Lane
My Attorney could not be here tonight and I would like to have representation, so I am requesting a continuance and would like the Committee to seriously consider ocean flooding vs. storm water flooding.
Commissioner Babin noted that the proper party to request a continuance is the applicant.
Commissioner Babin once again asked if there were any other comments from any members of the audience. None.
Commissioner Babin closed the hearing for public comment.
Commissioner Babin
• Conservation Officer raised an issue dealing with the Public Legal Notice
• You have the option to make the request of the Commission for a continuance
• Need to caution you that if you were to decline a continuance, the Commissions hands may be forced to act unfavorably due to not having proper legal notification which is the issue
• Based upon this, I am recommending that you ask for a continuance.
Mr. Gaskell
• Would like for you to reconsider that statement
• Need to talk to my client
• The aggrieved party is sitting here with their attorney who came late; so they can’t claim that they didn’t get public legal notice
• The risk we run is having that be the basis for the appeal. There is no substance to Attorney Brodsky’s letter. I am prepared to go through his letter in detail.
• The public legal notice is a procedural matter.
• I would suggest to my client that they take their chances over the procedural issue, however I have not spoken to my client yet. However if you are going to deny it because of the procedural issues, it will be difficult.
Commission Babin
• It will not be up to him ultimately to make a decision, it will be up to the whole Commission
• If you are not asking for a continuance, I will entertain a motion from the Commission, to close the hearing.
• There was no motion from the Board to close the hearing.
Conservation Officer
• Noted that the notification issue is part of the regulations
• If the applicant chooses not to continue it, he/she can simply take the risk of having someone appeal it based on a technicality.
• If the hearing has been fairly heard, and all the issues have been addressed, it could be closed.
Commissioner Babin gave a five-minute recess for Mr. Gaskell to discuss the situation with his applicant.
Mr. Gaskell
• Will take the risk with the procedural flaw
• Before you close the hearing, I would ask you to make a decision on the merits
• Attorney Brodksy is now here and I can address the allegations he is making in his letter
Commissioner Babin – We have closed the public comment hearing portion.
Abutter-Would like to speak and was not aware of the process nor understood about “closing” the public hearing portion.
Commissioner Babin
• Twice I stated and asked for public comment
• Only one abutter asked to be heard
• Waited a period of time for someone to speak especially in case someone was shy
Another Abutter - not clear of the process, didn’t understand that it was our time to speak up.
Motion: Commissioner Berry motioned to close the full public hearing for 12 Beach Lane.
Second: Commissioner Grafton In Favor: All Opposed: None
Any further discussion from the Commissioners?
Commissioner Grafton – In the Order, it important to mention the planting of coastal vegetation species as an offset to the impacted area and request information on the 50-foot line be included on updated plans.
Commissioner Babin: All those in favor of closing the hearing?
Second: Commissioners Nielsen, Commission Grafton In Favor: All Opposed: None
Hearing is closed.
Commissioner Babin to the public:
• The Conservation staff will be doing one of two things, preparing an OOC for the Commission’s review as an approval or an OOC for denial of the project with the next 21 days.
Conservation Officer
• Commission is on a summer schedule of meetings
• Applicant must give permission to give the Commission till the next meeting August 10, 2009 for a decision.
Commissioner Babin asked if the applicant was in agreement since the Commission does not meet within the next 21 days time frame to issue a decision, are they willing to extend that to our August 10, 2009 Conservation Commission meeting?
Mr. Gaskell’s advice to the applicant who was present is to agree to the above since the Commission does not meet within the next 21 days.
11 Steamboat Lane – DEP SE 34 1006 - Continuance
Applicant: Don Devaney / Representative: Gregory Morse – McKenzie Engineering Group
Presentation:
• Proposed project is to raze the existing house and construct a new 5 bedroom single-family home with pool, carriage house, onsite septic system, revised driveway layout accessing the property
• Resource areas: Coastal Beach, BVW, Salt marsh, FEMA flood zone, Top of coastal bank
• Outstanding issues have been addressed with the current revised plan dated July 13, 2009
• Reviewed the wetland resources areas with Abby Childs, Asst. Conservation Officer, and Brad Holmes on a site visit
o Added salt marsh flags, #100-#103
o Revised BVW by adding flags #11B and #10B which did not affect 50 or 100 foot-buffers
• Revised the location of the proposed septic, going before BOH for a variance, provided a denitrification system, meeting with BOH on Thursday, and would like to go in and tell them that we have the Conservation Commission’s support
• Revised the driveway turnaround to be reinforced turf
• Revised landscaping plan; reduced retaining walls and fill due to relocation of septic
• Area calculations have changed – less impervious areas in the 100 and 50 foot buffers
Impervious surface within the 100-foot buffer Presently
7,542 sq. feet
Revised to
6,120 sq. feet
Impervious surface within the 50-foot buffer Presently
3,005 sq. feet
Revised to
830 sq. feet
Discussion:
Commissioner Nielsen is pleased to see that applicant is now using reinforced turf, wanted to know how far down you are excavating for the leaching field
Digging down 12 inches
Commissioner Grafton is questioning how the septic will effect the root systems of the trees on the abutter’s property?
Proposing a one foot high retaining wall, stripping off the top 6 inches of loam, the roots are not within the top 6 inches, spoke to the abutter’s arborist and the arborist didn’t indicate to me that the abutters were against how we had revised the proposal
Commissioner Babin opened up the hearing of 11 Steamboat Lane to the public.
Don Devany–Builder for 11 Steamboat-6 bedrooms on the plans, not 5 bedrooms as stated.
Commissioner Babin asked again if there were any other comments from the public. None. Commissioner Babin closed the pubic hearing portion for 11 Steamboat Lane.
Commissioner Babin asked the Conservation Officer about the Reardon’s letter that was dated 7/9/09. Can the Conservation staff write an order with those restrictions mentioned? Yes per the Conservation Officer, however, on the Norway Maple, all of the roots and root hairs are significant. No doubt there will be some detriment to that Norway Maple.
Commissioner Babin hopes that the applicant will do what is necessary to preserve the tree, however the Commission understands there are no assurances that once you start digging around the roots of a tree that it will survive.
The Conservation Officer noted that once again the Commission will not be meeting in 21 days and the next meeting is August 10, 2009.
Motion: Commissioner McIsaac motioned to close the hearing for 11 Steamboat Lane.
Second: Commissioner Berry In Favor: All Opposed: None
Discussion from the Commissioners
Commissioner Nielsen: Open to suggestions dealing with the truck traffic on Steamboat Lane. Damage to the road is not the Commission’s consideration. It is the neighbors who share responsibility for that road. That road is almost on top of the coastal bank. Are there items that we should put into the Orders regarding the truck traffic?
Conservation Officer noted that several neighbors have raised that concern and the various permitting agencies will need to discuss this.
Commissioner Babin noted to the applicant that next meeting is August 10, 2009 which is beyond the 21 day period to issue an OOC? Are you agreeable to that? The representative, Greg Morse noted that the clients agree.
Certificates of Compliance
31-37 Fresh River Ave.–DEP 34 526-Applicant: J. Bristol- Bates Bros. Seam-Face Granite Co.
Conservation Officer reviewed the project and noted that the applicant is in compliance except for recording the easement over the drainage and an access easement to the Fresh River. The applicant’s engineer is working on it. $85,000 is being held in escrow and can’t be released until the COC is issued by the Conservation Commission.
Motion: Commissioner Grafton motioned to issue the COC for 31-37 Fresh River Avenue pending all necessary paperwork is received by the Conservation Office staff dealing with the restriction and easement.
Second: Commissioner Nielsen In Favor: All Opposed: None
Conservation Easement for the 269-271 North Street filing-DEP 34 0856
The applicant’s attorney for 269-271 North St. has prepared the Conservation Easement. The Commission previously voted on April 6, 2009 to support the deed restriction with signatures pending. The paperwork will be available for the Commissioners to sign during the week.
Meeting adjourned at 9:00 p.m.
Respectfully submitted,
______________________________
Cliff Prentiss, Conservation Officer
Approved as amended on 08/10/09.