Town of Wellesley, Massachusetts

Wellesley Wetland Protection Committee

Thursday, January 11, 2007

Natural Resources Commission Office

Town Hall, Lower Level, 7:30 PM

Present: Ms. Mary Jane O’Donnell, Chair, Ms. Rhonda Ryznar, Mr. Marc Taylor, Mr. Robert Lubker, Mr. Robert McDonnell, Committee members. Ms. Jane Sears Pierce, Wetlands Administrator.

Guests: Mr. David Thomas, Ms. Janet Bowser (NRC), Ms. Joyce Hastings (GLM), Mr. Jack Thomas, Ms. Mary Trudeau, Mr. Paul Bevilacqua, Ms. Diane Triant, Mr. Jim Triant, Mr. Robert Levy, Mr. Michael Stanton, Mr. Mark Saydah, Mr. Tim Anderson, Mr. Verne Porter, Jr., Mr. Arthur Allen, and Ms. Melissa Dailey

49 Glen Road, DEP #324-482, Mr. David Thomas attended Public Voice to ask for the Committee’s guidance as to whether his proposed garage addition would require an Order of Conditions’ Amendment or a new Notice of Intent. Mr. Thomas explained that his property is surrounded bordered by (two) perennial streams and is located within the 200-foot riverfront area. He briefly reviewed his two proposed garage addition plans as follows:

1. the first plan included an addition that would comply with zoning requirements, but would require extensive excavation and the need to cut down several trees,

2. the second plan would not comply with current zoning requirements, but would cause the least environmental disturbance; it would be located in a previously paved area.

Mr. McDonnell opined that Mr. Thomas’ proposals needed to be reviewed during a legally noticed public meeting; and not informally, during Public Voice. Ms. Pierce explained she had met with Mr. Thomas and had asked him to come to the meeting for the Committee’s guidance. She explained that he would prefer to build a new garage in an area that would cause the least amount of disturbance to the environment (i.e. the second plan), but that plan would not comply with zoning. Before filing for a variance with the ZBA, Mr. Thomas wanted the Committee’s approval.

Ms. Pierce advised that the Committee could make a determination that the proposed change could be reviewed as an amendment to the original Order, adding that the usual NOI notification process (i.e. abutter notification and legal notice posting) could be required for the amendment. The Committee determined that Ms. Pierce’s suggestion seemed appropriate, advising that Mr. Thomas meet with Ms. Pierce to discuss how to proceed with the amendment, abutter notification and legal notice posting.

RFD, 525 Washington Street

Ms. Janet Bowser, representing the NRC, began her review of the proposed activity by reviewing the site’s recent history/upgrades, including restoration of the Duck Pond. She stated that the resource areas included a riverfront, with no bordering vegetated wetlands (“BVW”). The NRC’s current proposal included a new pedestrian entrance from the street’s sidewalk, since the Duck Pond did not currently have a safe entrance for strollers or pedestrians, adding that a few ducks had been killed/run over on the entrance roadway, traumatizing children who had observed the unfortunate events.

Ms. Bowser explained that the NRC was proposing to knock through the stone wall at Washington Street, doing some necessary regrading at this entrance, and proposing a pathway of “crush and run” or concrete from the new entrance, to the bridge at the Duck Pond. She advised that, although they do not plan to construct the pathway at this time, they have included it in the current RFD so that they would be able to construct it in the future, if needed.

Currently, there are only two parking spaces near the Duck Pond; the NRC has proposed three additional angled parking spaces. In order to construct the new parking spaces, the DPW would be removing and replacing the adjacent sidewalk. The NRC should be informed that an Order of Conditions is only valid for three years.

Ms. Bowser advised that she, Ms. Pierce, and Mr. Steve Fader had met to review the proposed plans. During their meeting, it was determined that the silt fence would be installed on the upland side of the pond’s fencing, and haybales would be installed around the roadway’s catch basins to prevent siltation into the brook. She indicated that there would be no on-site stockpiling of material; materials will be removed at the end of each workday. She said the proposal should only take two days to construct, and if the weather holds, the DPW has indicated that they could perform the work in a month or so.

Mr. McDonnell moved to issue a negative determination for RFD, 525 Washington Street. Ms. Ryznar seconded the motion, which carried 5 – 0.

Continued NOI Hearing, 15 Royalston Road, DEP #324-516

Ms. Mary Trudeau (applicant’s representative) and Mr. Paul Bevilacqua (applicant) were present for the continued hearing. Ms. Pierce notified the Committee of a letter received from an abutter that would support their finding the site’s stream to be intermittent, and then read Mr. and Mrs. Harry Rodes’ (7 Royalston Road) letter, aloud. The letter stated that during their 20 years in their home, “we have seen the small brook at the back of our property completely dry up during the hot summer months” [ ] “for a few days to over a week at a time”.

Ms. O’Donnell stated that she had visited the site with Mr. Jim Coles (from USGS), to compare Mr. Mike Soraghan’s (applicant’s engineer) watershed area plan with site conditions, indicating that Mr. Soraghan’s estimated drainage area of .02 square miles appeared to be appropriate with their findings. She explained that they had observed the stream’s water flowing out from one pipe, and entering into another pipe (under Royalston Road). In addition, Mr. Coles did some dip netting in the stream, but did not observe any aquatic insects. Ms. O’Donnell opined, “in terms of quality, it [the stream] appeared to be of lower quality” and was probably being fed by ground water and stormwater. She then stated that based on the stream’s watershed size and the USGS quad, which did not show the stream [i.e. the State Act’s presumptions regarding perennial vs. intermittent streams], she and Mr. Coles determined that the stream is intermittent.

Ms. Trudeau distributed the following new documents (not previously received):

1. “Environmental Permitting Plan, Proposed Storm Water Management Plan, 15 Royalston Road, Wellesley, Mass” prepared by Michael P. Soraghan, PE, #33418, dated January 2007, signed 1/10/07.

2. “Storm Water Management Calculations, 15 Royalston Road, Wellesley,” by Michael P. Soraghan, PE, #33418, signed 1/10/07, with attachments.

3. Assessor’s information, reportedly showing the map and parcel number, as well as the current property owner (Ruth R. Lehrer Realty Trust, Ruth R. Lehrer, Trustee).

Ms. Trudeau then reviewed the new plan’s revisions, including the requested changes, as follows:

Wetland delineation – the plan now includes both sides of the rear wetlands’ line. She indicated that she and Ms. Pierce had met on-site, and had replaced missing wetland flags in the lawn area, stating wetland flags 2 and 3 soils, although in the lawn, had met the definition of wetland soils. In addition, she pointed out that flag #3 was approximately 56 feet from the house.

Tree stumps – the plan now included the location of the tree stumps (three, located at the manhole, and a fourth on the property line). All four trees had reportedly been removed from the 25-foot no-disturb zone.

Proposed (revised) Project - the revised plan includes a deck and an addition with a full foundation.

Stormwater Infiltration - revised plans now included a proposed drywell/trench. Ms. Trudeau explained that the site’s soil, Class C and mostly fill, were not good for drainage. Mr. Soraghan believed that a 25-foot, linear trench, would work better than a drywell due to depth from groundwater (24” below existing topography).

Mr. Bevilacqua indicated that the current home had a walk-out basement (with no water seeping in); the new foundation would be at the same level.

Ms. Pierce asked where a drain, located at the bottom of the driveway but not shown on the revised plan, discharged. Ms. Trudeau did not know where it discharged, saying that there is a smaller (6 inches wide) pipe next to the (stream’s) outfall pipe, but it appeared to come from a neighboring property. Ms. Trudeau explained that a sewer easement cut across the property (shown on the plan).

Ms. Diane Triant (166 Hampshire Road) asked about the stormwater trenches. Ms. Trudeau explained that the new roof’s runoff would be piped into the trenches for infiltration.

Ms. Triant also wanted to know about the property’s trees that had been removed. Ms. Trudeau replied, stating “Mr. Bevilacqua acknowledges that he took down the three trees; understands that there is a 25-foot no-touch and that he should have had a permit to remove the trees”. She said that he was willing to replant trees, preferably near the wetlands rather than their original locations near the manhole.

Ms. O’Donnell asked whether Mr. Bevilacqua would be proposing a remediation plan during this hearing. Ms. Trudeau said that he would not, but indicated that he could plant white pine; replacing one for one, or other species such as birch, hawthorn, or rhododendrons.

Ms. O’Donnell asked whether the applicant proposed planting the trees where grass is currently growing. Ms. Trudeau replied that the applicant preferred to put the new trees closer to the stream, rather than in the grass. Mr. Jim Triant (abutter) suggested that since the pines that were cut down were viable, then why not replace them in same area, since they had not encroached upon the sewer line. Ms. Trudeau opined that they might have become a problem if they had not been removed; adding that planting over an easement would not be good practice. Mr. Robert Levy (21 Royalston Road) showed older aerial photos from GIS, showing how the trees had provided a privacy screen. Mr. Taylor agreed that it was not a good idea to plant trees near sewer pipes because of the problem with tree roots.

Mr. Michael Stanton (172 Hampshire Road) explained that he had recently come before the Committee for a RFD to replant trees adjacent to the stream. He explained that he had not yet landscaped, waiting to see what Mr. Bevilacqua did to his lot. Ms. Pierce showed Mr. Stanton’s filing to the Committee.

Ms. O’Donnell advised Ms. Trudeau that her client would need to submit a restoration plan, including specific areas and species of plants for the restoration, indicating that she preferred to have the restoration requirements incorporated into the Order of Conditions. Ms. Pierce advised the Committee that the MACC recommends against incorporating violation remediation requirements into an Order of Conditions, first because it would suggest that the violation was permittable, and second because an Order of Conditions can be appealed, further complicating enforcement matters.

Ms. Trudeau suggested that the Order could state that that no construction work could begin until restoration landscaping work was complete. She stated that her client wanted to start building in the next few months, asking not to attach the construction commencement to enforcement remediation requirements

The Committee discussed options that would ensure restoration compliance, including the use of an escrow account, passbook savings account, or a bond, as well as the amount of such a vehicle. Mr. Levy (abutter) suggested posting a letter of credit (frequently used in commercial transactions). Ms. Pierce suggested using a consent order as discussed at a recent MACC seminar; Mr. McDonnell indicated that the DEP used consent orders in their enforcement cases.

Ms. Trudeau stepped out of the room with Mr. Bevilacqua to discuss letters of credit. They soon returned with the offer to supply such a letter to the amount of $7,500. The Committee preferred an amount of $10,000.

Mr. Taylor suggested that the hearing should be closed, contingent on a condition requiring a restoration plan in the Order of Conditions and/or Enforcement Order, with a surety of $10,000 to ensure completion of the restoration plan.

Ms. Pierce, wanting to ensure that all of the Committee’s previous requests had been fulfilled, reviewed the requests, asking the following questions:

· Had a revised NOI been submitted? Ms. Trudeau indicated that she had retyped the form, but had left the revisions at home but would bring them to the office on the following day.

· Will there be site grading or retaining walls? Mr. Bevilacqua stated that he would not be building any stone retaining walls, and would not be regrading the site.

· Who owns the site? Mr. Bevilacqua stated, for the record, that he was the owner of the property.

Ms. O’Donnell suggested that (regarding the violation) the Committee could require the submittal of a restoration plan within 30 days, adding that the amounts of a letter of credit and the fine could be reviewed during the next meeting. She then explained that the basis for requiring a letter of credit was to ensure the completion of the landscape restoration.

Ms. Ryznar opined that a fine should be issued/paid immediately. Discussion ensued regarding enforcement procedures, fines, etc. When Ms. Trudeau asked what the Committee’s previous fines had been, a table of previous violations and fines was reviewed aloud.

Ms. O’Donnell recommended a fine of $3,000, which might be reduced after completion of the restoration, based on the quality of the restoration.

Mr. Levy asked that larger caliper trees be required for the restoration planting.

Mr. Taylor suggested a widening of the vegetated buffer as a requirement for the remediation.

Mr. Levy asked whether future enforcement meetings/discussions would be part of the public process and was informed that it would be discussed during a future public meeting, which would be posted on the website’s agenda.

Mr. McDonnell made the following motions:

1. to close the hearing and issue an Order of Conditions, including the following conditions:

a. an allowance to build the home’s addition prior to completion of the landscape restoration,

b. applicant must submit, within 30 days of January 11^th (by February 9^th), a proposed landscape restoration plan to include

(1) restoration of the entire bordering vegetated wetland area (including a lawn area),

(2) native tree’s species, caliper size, planting locations and number of trees to be planted, and

(3) restoration planting/construction timeline,

c. a certificate of compliance would not be issued until restoration work and payment of the required penalty/fine and other aspects of the enforcement proceeding have been completed/closed out,

2. the Applicant must post a $10,000 letter of credit, in acceptable form, to the Committee for the purpose of ensuring implementation of the Restoration Plan securing compliance and enforcement, and

3. the Applicant shall pay a $3,000 penalty/fine, subject to a possible future reduction, which shall be determined by the Committee based upon the resource area improvements or enhancements that are a result of the applicant’s restoration efforts.

Ms. Ryznar seconded the motion, which carried, 4 in favor; 1 (Mr. Taylor) abstained.

Informal Discussion – 15 Edgewater Drive, DEP #324-525 (File closed/CoC issued)

Ms. Joyce Hastings (GLM), representing Mr. Jack Thomas, reviewed the site’s topography, including a large berm to the rear of the property, with a steep drop-off leading down to the Charles River, below. She explained that Mr. Thomas would like to install a child-safety stockade fence at the property line, under the DEP’s “Exempt Minor Activity” policy. She then indicated that there would not be much space below the fence for wildlife migration.

Ms. Pierce reviewed the requirements of the DEP’s “Exempt Minor Activities”, which allows fencing that “does not create a barrier to wildlife movement” as an exempt activity. She explained that since this was a steeply sloping riverfront area, she was not concerned about the fencing creating a barrier to larger mammals, which would probably travel along the bottom of the (river’s) hillside. She was, however, concerned that turtles might use the yard for nesting, citing the behavior of nesting snapping turtles that she had observed in the past. Her main concern was that a stockade fence, without any space underneath, would prevent a barrier to nesting turtles, recommending that at least a two inch space underneath the fence should be required by the Committee.

Ms. O’Donnell reviewed Ms. Pierce’s proposal, stating that the Committee needed to determine whether it would qualify for the exemption. Ms. Pierce believed that a two-inch space should be sufficient, stating that if a turtle wanted to use the back yard for nesting, it could dig it’s way under the fence to get there.

Mr. McDonnell made a motion to approve the installation of a stockade fence with a two-inch space beneath it at 15 Edgewater Drive. Mr. Lubker seconded the motion, which carried 5 – 0.

RFD, 133 Lowell Road

Mr. Mark Saydah (representing the homeowner/applicant), present for the discussion, reviewed his proposal, which included cutting and filling an area in the property’s backyard for installation of an ice skating rink, which was near, or within, the buffer zone of a vernal pool and bordering vegetated wetland.

Mr. McDonnell reminded the Committee that other projects had been proposed (reviewed under NOIs) near this vernal pool in the past, stating he believed the proposed activity would require a NOI.

Ms. Pierce, using Wellesley’s GIS data layers, measured the distance between the vernal pool’s water line (using 2004 orthophotos) and the property’s edge, finding it to be about 100+ feet. She then measured 100 feet from the edge of the BVW, finding it to be much closer to the property than the vernal pool.

Ms. O’Donnell opined that there should be a positive Determination for this filing because Mr. Saydah had not shown the actual wetland and vernal pool distances on his plans, adding that the other part of the equation was the public process. She cited a nearby (45 Hampshire Road) filing, which had generated a great deal of neighborhood interest, explaining that the proposal’s hearings had been quite controversial. She thought there would be neighborhood interest, stating that the formal public process of a NOI would be more appropriate in this case. Ms. Ryznar agreed that a positive determination should be issued.

Mr. McDonnell asked whether the Committee thought that the proposed project was all within the buffer zone. Ms. O’Donnell believed that the applicant needed to take on-site measurements of the proposed project’s distance from the vernal pool and bordering vegetated wetlands.

Mr. McDonnell made a motion to issue a positive determination for the proposed project at 133 Lowell Road (requiring a NOI to delineate the resource areas), based on the following findings:

1. a significant portion of the subject property is located within the 100 foot buffer zone, and

2. the distance from the off-site vernal pool’s boundary has neither been shown on the proposed RFD plan, nor determined by the Committee.

Ms. Ryznar seconded the motion, which carried 5-0.

Mr. Saydah was advised that if his client chose to file a NOI for this proposed project, the following information would need to be included on the NOI’s plan:

1. edge of vernal pool as associated 100 foot vernal pool habitat (no-disturbance zone),

2. bordering vegetated wetlands (BVW) flagging/delineation information,

3. delineation of the BVW’s 100 foot buffer zone, and

4. delineation of BVW’s 25-foot no-disturbance zone.

The Committee advised Mr. Saydah to obtain abutting property owner(s) permission to go onto their properties (to determine the above boundaries), and then schedule a site visit with Ms. Pierce, so that they could review the resource area boundaries together.

Ms. Pierce was asked to review both the previously discussed 45 Hampshire Road filing, to determine neighborhood input, etc., and the filing for either 76 or 80 Livingston Road, containing Sanford Ecological’s review of that site’s vernal pool habitat.

NOI, DEP #324-536, 10 Meadowbrook Road

Mr. Vern Porter, Jr., Surveyor, and Mr. Arthur Allen, EcoTec (Applicant’s representatives) and Mr. Tim Anderson (Applicant) were present for the discussion. Mr. Porter reviewed the project, a proposed SFH addition and patio located in a buffer zone, explaining that the site’s resource areas included an intermittent stream in the back yard with some associated wetlands (BVW), were flagged by EcoTec. All proposed work is located outside of the 50-foot buffer zone.

Ms. O’Donnell asked about the site’s change in elevation. Mr. Porter indicated that the elevation at the stream was 94; 102, at 100 foot buffer line, and 98, at the 50-foot buffer line.

Mr. McDonnell asked what the DEP’s on-line comment of “Under review by DEP” meant. Ms. Pierce opined that this project was straightforward, so she did not expect to receive any negative DEP comments or review. She advised that, although the Committee needed to wait until the DEP designated a file number to close a hearing, this project had a DEP number, therefore, the hearing could be closed. She then distributed, for the Committee’s review, copies of her draft of an Order of Condition for the project, advising that the draft document contained the standard boilerplate conditions.

Mr. McDonnell made a motion to close the hearing. Ms. Ryznar seconded the motion, which carried 5-0.

RFD, 45 Forest Street

Mr. and Mrs. Melissa Dailey, Applicants, were present to discuss their proposed two-story addition to the back of their house, wanting to know if their proposed work was within a buffer zone. Ms. Pierce, using GIS information, measured the distance of the proposed work from the bank of an intermittent stream; the distance was more than 100 feet. The distance from the BVW was approximately 60 feet.

Since the proposed addition would have a basement, the Committee required that any materials stockpiling needed to be located outside of the 100-foot buffer zone. Mr. Taylor wanted to ensure that stockpiles would be covered. Mr. McDonnell explained tht this would prevent soils from running into the street, and subsequently, the stream. Mr. McDonnell advised the Dailey’s that as long as any landscaping work stayed outside of the buffer zone, they didn not need to file another RFD. He further explained that if they wanted to do any work (that would alter soils) inside the buffer zone they would need to file another RFD, adding that the Committee would approve landscaping in the buffer zone, but would ask that they plant only native species.

Mr. McDonnell moved to issue a negative determination for RFD, 45 Forest Street. Mr. Lubker seconded the motion, which carried 5 – 0.

General Business

26 Brookdale Avenue, DEP #324-504.

The Committee re-signed/re-issued this Order of Conditions because the Applicants had lost their original Order.

Intermittent Stream Classification for 15 Royalston Road brook; Wetland Map Modification

The Committee briefly discussed the issue of intermittent vs. perennial stream status. Mr. McDonnell reminded the Committee that they have “discretionary authority” to make decisions, as defined in the Wetlands Protection Act Regulations. He then advised “we have science that it is intermittent, but conflicting eye-witness evidence”, stating that the Committee was “on perfectly defensible grounds;” saying “you’ve weighed the evidence.”

Mr. McDonnell made a motion that, based on science, the Wetlands Protection Committee has made a determination that the stream, located at 15 Royalston Road, is intermittent. Ms. Ryznar seconded the motion, which carried 5-0.

2 Ledgeways, DEP #324-436, Request for Certificate of Compliance.

Ms. Pierce asked the Committee to put the issuance of a CoC for this site on hold, as she had not yet had time to visit the site.

Meeting Minutes.

Mr. McDonnell made a motion to approve Draft Minutes, with his changes (as submitted to Ms. Pierce during the meeting) of February 16, 2006, April 20, 2006, June 1, 2006, August 24, 2006, and September 21, 2006. Mr. Taylor seconded the motion, which carried 5-0.

Administrator’s Report

Enforcement Documents.

Ms. Pierce distributed various draft enforcement documents that she had compiled, including a draft violation form letter, an Enforcement Guideline document (including numbered steps to follow), Draft Enforcement regulations that she had created for Holliston’s regulations, and copies of a document that were drafted for the Committee by Ms. O’Donnell during previous enforcement discussions.

The Committee wanted to have more time to review these documents, but began to discuss the town’s enforcement issues, as follows:

Mr. McDonnell explained some of the town’s history regarding wetland enforcements. He indicated that an argument at town meeting was that the Committee should fine, saying that he had attended the meeting and had given a presentation/discussion regarding all the Committee’s cases with violations. He informed the Committee that it was the lack of the ability to fine that caused the town meeting to give the Committee authority.

He recommended that each time the Committee issues a fine; they include it in a spreadsheet including information about where the violation occurred, what the fine was, and a summary of the facts, so the Committee can start to have consistency regarding their fines.

Ms. O’Donnell agreed with his suggestion, adding that for the evening’s fines discussion, it would have been very helpful if the Committee had a chart to review, with whatever factors they thought were important. Mr. McDonnell agreed, stating that during the evening’s discussions we said that three white pines were cut down, with a possible fourth, and that the Committee thought the fine should equal $1,000 per tree, but not all members agreed.

In reviewing the current spreadsheet of enforcements, he advised that the Gottesdiener fine had been the Committee’s largest ($10,000) for cutting numerous trees in a riverfront area.

Ms. O’Donnell indicated that she believed that a fine should supplement a restoration plan, not eliminate it. Ms. Ryznar added that this could be another reason to make a fine bigger to begin with; it would give the violator motivation to remediate. Mr. Taylor cited the “Volvo” fine, which had been $3,000. A comment was made that it should have been more because they had cut down everything that was growing.

Mr. McDonnell advised that the Committee needed to work on a table of fines, etc., to see what precedent had been set in the past. His biggest concern was that fines not be considered capricious. He asked that Ms. Pierce do some research into the Committee’s files, and put together an enforcement chart for their review during the next meeting. Ms. Pierce indicated that she would work on this.

New Computer Chair for Wetlands Administrator.

Mr. McDonnell made a motion to purchase a new computer chair for the Wetlands Administrator. Ms. Ryznar seconded the motion.

The motion passed unanimously.

Adjournment at 10:25 pm.

Next meeting: February 1, 2007.

Respectfully submitted,

Wetlands Administrator