Minutes of Conservation Commission

January 10, 2007

Present: George Kingston, Chair; Martha Hamilton, Vice Chair; Jody O’Brien, Clerk; Mary Swords, Michael Salvon and Steve Niec.

Public Hearing – Pease Road, Lot 25

At 7:00 p.m. George Kingston, Chair opened the public hearing for Pease Road, Lot 25. Jody O’Brien, Clerk read the legal notice into the record.

Present were Joseph Petronino, Environmental Services; Michael Kane & Michael Torica, Applicants.

Mr. Petronino said that the proposed project is for a 30 x 70 square foot single family home to be built out of the 100 foot riparian and fully in the 200 foot riparian and the buffer zone. He said that he flagged the area around the culvert and ended up at the property line in the back where there were at least 2 other sets of flags that he pretty much agreed with. He said the closest point to the wetland area would be the back of the home which is approximately 3 to 4 feet behind the wetland line. Mr. Petronino said that the project falls totally in the riverfront area and the amount of disturbance in the riverfront area is 40,000 square feet which constitutes 18% of the riverfront area. He said the total amount of land in the riverfront area on the site is 73,060 feet and the construction sequence will be to tree the area first and keep all of the excavated material away from the wetland. Mr. Petronino said in order to take care of some of the drainage from the roof there will be roof infiltrators trenches at each point. He said that he tried to meet some of the performance standards by proposing plantings along the alteration limit line and the drainage from the driveway will flow towards the street and the rest will flow in the other direction away from the wetland. Mr. Petronino said that he consulted with Don Smith from Smith & Associates and he assured him that the area is out of the flood zone.

Mr. Kingston said comments form DEP have been received and they have requested written response to their comments. Mr. Petronino said that he had received his comments on Monday and looked them over and asked the Commission if they would like to go over with them with him. Mr. Kingston said that wasn’t necessary but the basic issue was that they are proposing to alter 18% with the riverfront area, which is more than 5,000 square feet and he doesn’t see how that met the performance standards. Mr. Petronino said that it didn’t. Mr. Kingston asked then if he could explain why the project should be approved.

Mr. Petronino said what they tried to do was litigate for any impact on the resource area, that is the best they could do and then to litigate even further they could make a more creative planting procedure for the areas that aren’t to be disturbed.

Mr. Kingston said the basic fact was that they didn’t meet the performance standard, it was a lot that was created in 2004 therefore it doesn’t fall under the grandfathering clause. He asked how it was provable.

Mr. Petronino said that the applicant has requested that size house go on that lot and that’s what he did. He said that it would be up to the applicant to take it down a bit.

Mr. Kingston said for one thing the Commission approved the other half of the lot before it was subdivided. Mr. Petronino said that he had no knowledge of that. Mr. Kingston said that it was on public record DEP file #150-323 and the filing Notice of Intent was available in the Conservation Office and 10% of the riverfront area was altered on the entire lot.

Mr. Pertronino asked where that lot was.

Mr. Kingston said that it was the other half of the lot that is on Favorite Lane. He said the numbers that were in the Notice of Intent showed that there was 79,000 square feet of riverfront area on the entire lot and what was altered was 7,900 square feet which is 10%, so there is nothing left to alter in the riverfront area. Mr. Kingston said since that was subdivided subsequent to both the rivers acts and the original filing you don’t meet the performance standards, it’s not approvable unless you could come up with something creative to show why it should be approved. He said and that was in DEP comments and basically you can’t subdivide a lot in then start over on another 10%, it doesn’t work that way. Mr. Kingston said that DEP was also complaining about the alternative analysis because the house is quite large and he understands that it is up to the applicant to decided what they are going to apply for but as it stands it does not look approvable on the surface. He said unless he could present the Commission with an argument that shows why it is approvable he doesn’t think they can go a whole lot further with it. Mr. Kingston said he talked with Mark Stinson from DEP who was very concerned if the Commission was keeping track of all of the alteration within the subdivision with any lots that where separate from it and this lot was not part of the subdivision originally, it was a separate lot to begin with. He then read into the record item #5 of the comments from DEP.

Mr. Kane said himself and Mr. Torcia don’t know a lot of what has been stated because it’s something they don’t regularly. He said that he’s almost sure that the flags were done when Gary Martinelli created Favorite Lane and the house on the corner wasn’t part of Favorite Lane. Mr. Kane said that he and Mr. Torcia bought the lot and it was what it was and they don’t know any of the particulars and a lot of things that were talked about were new to him. He said that they talked to the other neighbors in the neighborhood and told them that they would like to build something that would compliment their homes and do something tasteful that worked with the Commission. Mr. Kane said that there was nothing set in stone but they wanted to create something that would be good for everybody including the Town. He said as of right now it sounds like if they don’t have a good reason for this then it’s off the table.

Mr. Kingston said when he first looked at it with Mr. Kane he didn’t realize that the riverfront area was as far west as it is. He said unfortunately it does not meet the performance standards and it is not approvable and now that he sees the plan showing where the riverfront area actually is and knowing how much alteration there was on the original lot there’s basically no way to put anything on there. Mr. Kingston said there is no more riverfront left there to the alteration area allowed by law to work with and the filing for the original lot that Pioneer Environmental did explicitly states that there was 7,900 square feet of alteration done and that was 10% so that ate it all up. He said the Commission can’t approved it because if they do DEP will appeal it themselves.

Mr. Torcia said that the house they are proposing is 3,200 square feet and for that lot they felt that the proposed house would fit on it size and value wise. He asked if there was anything else they could do to alleviate the situation because he didn’t understand what they were referring to.

Mr. Kingston said no because if it was just wetlands they could probably work around it but because it’s riverfront area and because there has already been alterations within riverfront on the lot before it was subdivided they would be beyond the maximum allowed by law if they did anything there. He said that there were no exceptions in the law, particularly for a lot that was created subsequent to 1996. He said if that lot been there originally in that size then it might have gone forward in what is called a limited project but because it was subdivided after 1996 the state looks on it as a self created hardship just as Planning Board would. Mr. Kingston said if they wanted to continue it and consult with someone else about it they were welcome to do so but he didn’t see any away around it.

Mr. Torcia asked if the house was smaller would that make a difference. Mr. Kingston said no because there is not enough outside of the riverfront area to put in anything at all, you can’t meet zoning setbacks, there’s nothing that could fit there. Mr. Torcia asked if it would change if they bought land off of the land behind them. Mr. Kingston said that it would increase the amount of riverfront area that they have which would be a good thing and if they bought additional land towards the back and created one lot out of it they would then have more riverfront area and therefore they would have more riverfront area that they could alter. Mr. Torcia said that they purchased it as one lot and were told it could be two lots square footage wise. Mr. Kingston said square footage wise that is true.

Mr. Kane said that was part of their dilemma because they paid a lot of money because they were told there was two lots, not that’s it’s anybody’s fault but he just wanted to explain the circumstances. He said if they knew that it was going to be anything like this they wouldn’t have incurred all the additional expenses.

Mr. Kingston said that he knew that they came in on good faith and he knows that it was discussed earlier in good faith and if the Commission could find a way to do it they would say yes but he can’t see a way within the law and the regulations to do it. He said they would have to buy another 74,000 square feet of riverfront area in order to be able to have enough of what they are proposing to alter. Mr. Kingston said that they could do that if they were able to buy approximately 74,000 additional square feet which is about 2 acres on the back ends of the lots from the people on Favorite Lane.

Mr. Kingston addressed the audience for any questions. There being none and

upon motion duly made and seconded, the Commission voted unanimously (6-0) to close the hearing. Upon motion duly made and seconded, the Commission voted unanimously (6-0) to deny the project because it doesn’t meet the performance standards.

Continuance Public Hearing – The Fields at Chestnut

Mr. Kingston reopened the public hearing.

Mr. Riberdy from Baystate Environmental said that they made a slight amendment to the plan and the change was to get under the threshold of 404 instead of removing the stuff in there. He said that they also revised the other plan that showed the stormwater basin because the calculations didn’t have a need for the basin so the basin has been removed and it will discharge into the wetland. He said the way the labeling was on the plan you couldn’t tell if the pipe was in the wetland or outside of it.

Mr. LeBeau said that it was more of graphical reading problem with that certain scale so he pulled the pipe end back 5 feet and submitted the revised plans showing that change.

Mr. Kingston addressed the Commission for any questions. There being none and

upon motion duly made and seconded, the Commission voted unanimously (6-0) to close the hearing. Upon motion duly made and seconded, the Commission voted unanimously (6-0) to approve the project with conditions.

There being no further business and upon motion duly made and seconded, the Commission voted unanimously to close the public meeting at 8:00 p.m.

For the Commission,

George Kingston, Chair