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Meeting Minutes

March 22, 2007

PRESENT: John Danehey, Chairman, Albert Bangert, Agnes Rona, Brian Sullivan and Sara Trezise.

OTHERS: Neil Duggan, Building Commissioner/Zoning Enforcement Officer and Jason Talerman, Town Counsel.

MEETING CALLED TO ORDER:

Meeting was called to order at 7:10 PM.

Herring Brook Meadow, LLC of 265 Newbury Street, Peabody, MA 01960 applies pursuant to General Laws, Chapter 40B, Section 20 through 23, as amended, for the issuance of a Comprehensive Permit authorizing the applicant to construct 60 condominium units to be called “Herring Brook Meadow” on land located at 126-132 Chief Justice Cushing Highway in Scituate.

Janet Stearns from Stockard, Engler and Brigham, LLC represented the applicant.

Rodrick Gaskell, Alexander Trakimas and Jeffrey Couture from SITEC Environmental were present.

Daniel Garson from Woodward & Curran and Jim Comeau from Pennoni Associates were also present.

John Danehey opened the hearing at 7:10 P.M.

Janet Stearns- addressed the peer reviews that were submitted to file from the Board’s consultants. She said they didn’t receive the reports in time to comment but had some ideas about their response. She requested to give the traffic study presentation that they revised from the last hearing and wanted to discuss the environmental issues at the next hearing. The traffic study was prepared by Steve Finland from McMahan Engineers and Planners.

John Danehey- requested that the applicant share the MBTA Traffic Study with the Board’s consultants. He wanted to discuss the Woodward and Curran report first. Mr. Danehey asked that the applicant delay the ZBA hearing until after they clear up all the environmental issues raised by Woodward and Curran. He felt they were putting the cart before the horse.

Janet Stearns- stated the applicant would be moving forward with the ZBA hearing and the Conservation hearing.

J. Danehey- felt it would be repetitious if they need to relocate the buildings and project boundaries following a MEPA review.

J. Stearns- felt the project as proposed does not trigger the need for a mandatory Environmental Impact Study (EIR) from MEPA

Jay Talerman- said it was not uncommon for a 40B applicant to wait to do the MEPA review at the end. He did not agree with this but stated it was up to the applicant; the Board could not force them to do this.

Brian Sullivan- felt they were going about everything backwards. He felt they should not have a Conservation review or MEPA review until the ZBA approves the project. He suggested they withdraw from ConCom and redesign the project. He felt they were trying to stonewall.

Janet Stearns- felt a lot of the issues in the Woodward and Curran report fell under the jurisdiction of the Wetlands Protection Act, which they were addressing with ConCom and not the ZBA.

A. Bangert- said the ZBA was the one stop shopping except for State Building Codes, Title 5 and the Wetlands Protection Act.

Janet Stearns- wanted to address traffic and hold off on the environmental issues until next meeting.

John Danehey-said they would address the Woodward and Curran report and suggested Ms. Stearns have the traffic engineer and architect leave for the evening. He wanted the applicant to revise their environmental and engineering reports and provide copies of the report to the Board at least 10-days prior to the next meeting.

J. Stearns- agreed to this request.

J. Danehey- stated he did not want the applicant to do any plowing, harrowing or planting on the site until after the ZBA hearings.

Janet Stearns- said she would need to discuss this with her client.

Neil Duggan- stated if they attempt to cultivate the field he would issue a Cease and Desist order under the Saltmarsh and Tideland Conservation District bylaw since the applicant is not a farmer.
J. Danehey- wanted to make it very clear that the land should not be altered in anyway. He felt there is no need for the applicant to alter the land while in front of the ZBA .

B. Sullivan- suggested a letter from the applicant’s attorney stating they would not alter the site.

Agnes Rona- felt there was no reason to plow the land

Gloria Hollostein- talked about the ZBA’s site visit the prior week; she stated that Rod Gaskill made comments that the field had been plowed and winter rye had been planted. She requested that Mr. Gaskill expound on his comments.

Rod Gaskill- submitted a memo dated February 21, 2007 (see file). He stated that he was a Land Use Planner and a Wetlands Scientist. He talked a about letter from Ronnie Simons stating he had planted winter rye on the property in 2005. Rod Gaskill said he had aerial photos of the land being plowed. He felt the property fell under the Agricultural exemption provided under the Wetlands Protection Act.

J. Danehey- felt the exemption was premised on an agricultural use of the land. If they simply plow the land and plant winter rye to prevent wetland vegetation and weeds from growing, they have altered the site.

R. Gaskill- said the winter rye was a cover crop that was planted. Their goal was to keep their status under farming in case the proposed project did not pass.

B. Sullivan- asked if they planted prior to 2005.

R. Gaskill- said he would need time to establish that.

B. Sullivan- wanted to know when the client took title.

Janet Stearns- answered 18 months ago.

Agnes Rona- asked if they wanted to build houses and leave open spaces why would they need to preserve the status of the agriculture use.

Jason Talerman- asked if it was a riverfront issue

R. Gaskill- said they wanted to keep it open for the proposed open space use. He stated that there was no way the plowing and harrowing would destroy evidence of the wetlands vegetation. He was the one who suggested planting corn on the land

Neil Duggan- asked if the developer hired Ronnie Simon to plow and harrow the land.

Contractor for the Owner- stated that Tom Doherty hired Ronnie Simon to plow and harrow the land.

J. Talerman- asked if Mr. Gaskill knew the agricultural restriction under Scituate’s bylaws

R. Gaskill- said he did not know.

J. Talerman- felt the local bylaw would go ahead of the Wetlands Protection Act. They would need to determine this prior to planting any corn.

Janet Stearns- stated after to speaking with her client, he agreed not to plant anything prior to the next hearing.

J. Danehey- requested that a written notice be sent to the Board prior to anything happening on the site. .

Janet Stearns- agreed to notify the Board in writing.

Deirdre Hoffman of 109 C J Cushing Highway- asked if Mr. Gaskill found any wetlands vegetation.

J. Danehey- clarified that Mr. Gaskill stated that there was not wetland vegetation there if they harrowed the fields.

R. Gaskill- stated there was no regulated wetlands vegetation. He felt the vegetation observed was not regulated because there was not sufficient hydric soil observed on the site.

B. Sullivan- wanted to know an example of common plants that were not regulated.

R. Gaskill- stated that this site would still be regulated under flooding but not under wetlands. He felt there was a pre-existing use within the 100-foot boundaries. The field varied from 40-50 feet from the mean high-water mark, which means some of the field was in the lower 100-feet. Four acres of the site had been farmed in the past.

Agnes Rona- wanted to clarify why the developer, who paid close to 1.5 million for the properties, would need to plant corn on the site if the proposed construction did not pass.

R. Gaskill- said the selling of corn would not provide enough cash to fulfill the debt. The applicant’s intent was to keep the agricultural status just in case.

Kathy Donahue of 4 Cushing Landing- stated the farming hadn’t been documented yet, and if they were so concerned about it, why had it not been documented.

B. Sullivan- said they had established that it was farmed in the last year but not prior to that.

R. Gaskill- said they haven’t done it because he thought the open space would be well received. He didn’t know they would be challenged on it.

Gloria Hollstein of 11 Martha’s Lane- stated in the late summer of 2003 the site was plowed, harrowed and planted. She had two affidavits from people who had actually plowed the land before the delineation took place in 2004. She stated there had been no farming for over a decade. Her research on the DEP regulations showed that if the agriculture land hadn’t been farmed for a period of five years it would fall back under the DEP regulations. She felt the Conservation Agent who lived in the abutting property should have stopped this plowing and investigated it. Her feeling was that the plowing and planting of the land changed the wetland vegetation on the site. She asked if the ZBA would act as the town’s Conservation Commission and have the land re-delineated. She felt the applicant had no intent for it to be agriculture.

J. Danehey- said the Board could handle the local bylaws but not enforcement.

Scott Greenbaum of 40 Damon Road- said that Mr. Gaskill could not make a determination that it was wetlands because it had been farmed and now he was saying he could.

Sara Trezise- wanted the purchase and sale’s and the pro-forma the Board asked for at the previous hearing.

Janet Stearns- thought the Board got the p&s information from Mass Housing. She stated she would provide the Board with the pro-forma.

Daniel Garson- gave an overview of his peer review report. Mr. Garson recommended that applicant provide detailed alternative analysis, detailed mitigation report, IVW, ILSF, LSCSP, Chapter 91 and MEPA reviews. He discussed the Wetlands and Resource Protection Acts, which he felt were significant. The meadow they flagged was key being vegetative wetlands and areas subject to flooding. He spoke about the need for a MEPA review. In his view MEPA was design as the first stop for a project because it mirrored the Federal level. The reviews were intended to raise all environmental concerns by the state, municipality and citizens. He felt strongly that the MEPA review should go first. Mr. Garson thought the review might require the applicant to redesign the project. He also questioned a need for a Chapter 91 filing along the salt marsh. A Chapter 91 filing was legislation that was passed years ago on the long-standing legal bases that refer to certain tidelands, which have been filled historically. The State says the public has interest in these tidelands even if they were filled years ago. He gave the renovations at Rose Wharf Hotel in Boston as an example of a project that would require a Chapter 91.

B. Sullivan- asked if there was a difference between filled salt marsh and filled tidelands.

D. Garson- answered yes. He referred to the maps he submitted with his report (see file). The map year was 1870. He explained that DEP would require data that would supply salt elevation, location of mean high water mark and historical records if they existed. He did not know if the applicant had this information but thought the Board should ask for it. He felt due to the treated ground water and new fill in a regulated waterway would require an ENF and EIR. He explained that the wetlands would be another trigger for an ENF.

J. Danehey- asked if lines of delineation could prevent this from happening.

D. Garson- his concern was with storm activities. He questioned where the storm surge would go after the proposed buildings were in place. He suggested the Board ask the applicant to study this.

B. Sullivan- said that Mr. Gaskill stated they had 7 acres that were buildable. Mr. Sullivan felt they could spread it out over the site.

D. Garson- felt this was not a simple answer. He felt the comments from the Planning Board and Design Review were the right concerns and the Board should have them addressed.

Susan Deileader of 5 Martha’s Lane- had concerns with waivers.

J. Danehey- said the Board would study all waivers thoroughly.

Leslie Kilduff of 125 C J Cushing Highway- asked about fill and storm surges. She wanted to know if it was possible to measure this?

D. Garson- said that he felt Sitec could do this very easily and that it was typically done.

Janet Stearns- said their coastal geologist would come to the next meeting to give a presentation.

Kathleen Donahue- asked if the applicant would put the location of the abutting properties on their maps and she wanted to know who their geologist was.

Janet Stearns- stated their geologist was Dr. Peter Rosen.

Gloria Hollstein- wanted to clarify that the house referred to as number 11 on the applicants plan was in fact house number 5.

R. Gaskill- felt that they were not triggering the need for a MEPA review. Mr. Gaskill stated he ran the program for Chapter 91 for about 5-years. He said that Mr. Garson was right if he was referring to historically filled tidelands but after a lot of research he felt there was no historic filled tidelands on this site.

J. Danehey- felt that over time the land might have changed but that historically they cannot change the fact that they were filled tidelands.

R. Gaskill- stated they would do more research through out the site but they did look for evidence of peet, which would have determine that it had been filled. He did find evidence of glacial deposits.

J. Talerman- asked about a discharge permit.

R. Gaskill- said it did not trigger a MEPA filing. They would have to have a state permit and go over the state requirements.

Sara Trezise- wanted to clarify that he viewed them as tidelands.

R. Gaskill- he said the tidelands were the salt march, which is determined by coastal flooding.

D. Garson- clarified that he did not say it was tidelands, what he stated was they need to further investigate to determine if whether this was tidelands. He felt the applicant should provide further documentation.

Jim Comeau- talked about technical comments about the engineering. He would like to see a reevaluation of the parking garage, dumpster location, distribution of parking, handicapped accessibility and emergency vehicles. He felt the buildings should be relocated and turned for a more positive traffic flow. The utilities had no service connections, which he felt their maybe some conflicts with the some of the utilities. The wastewater treatment and the elevation of the anti-drone system may be below the 100-year tanks, which would be sealed, but fluctuation of storm water may leak chemicals into the wetlands.

J. Danehey- would like to know if they could relocate it.

J. Comeau- said they had moved the treatment away from the wetlands but they left the antiddrom system closer.

B. Sullivan-asked for data on how many times there has been a 100-year storm threshold. He had concerns with the effects on the system from storm water and water running off because of the elevations.

Gloria Hollstein- asked that the Board require the applicant to file a MEPA review. She stated that if the Board did not require this then the abutters would.

R. Gaskill- said they would do an analysis but did not think it was necessary.

Susan Daileader of 5 Martha’s Lane- wanted to know whey they would not do a MEPA review when it was so clearly a wetlands area.

J. Danehey- explained that they could not make applicant file because they were coming under Chapter 40B. The Board would touch on all these concerns as the meeting went on and there would be open negotiation between the Board and the applicant.

J. Stearns- stated they were not trying to avoid a MEPA review.

J. Danehey- requested that the applicant submit all documentation to the Board 10 days prior to the next hearing.

B. Sullivan- after reviewing the consultant’s reports he would like to ask the applicant to resign the development. He would like to see the applicant lower the height and move the buildings back. He felt the applicant should try and work with the abutters.

J. Danehey stated the next meeting would be May 24, 2007 at 7:00 P.M.

N. Duggan- clarified that if zba could question the developer and impose a 50-foot buffer zone.

J. Talerman- said they have same power that ConCom has under a Notice of Intent. The Board would issue the conditions and the applicant would ask for waivers. The Board would have to decide whether they would issue other requirements

A. Rona- encouraged the abutters to try and work with the applicant.

Werner Boehl of 15 Martha’s- stated the abutters engineer would walk the site on Friday, March 30, 2007 at 9:00 A.M. He requested the presence of some Board members.

Agnes Rona- agreed to join the site walk.

J. Stearns- said the site walk was for the technical people. She would check with her client regarding the ZBA being present for the walk.

Gloria Hollstien- stated someone had made her consultant uncomfortable and she requested that her attorney be present for the site walk as well.

J. Stearns- would talk with her client.

J. Danehey- stated they would cover the environmental issues at the next hearing.
He wanted to know when the applicant would be going forward with MEPA.

J. Stearns- said she would have additional information by the next hearing and would let them know.

Gloria Hollstein submitted photos to the file (see file).

Sullivan moved to accept the minute from January 18, 2007, seconded by Danehey, all in favor, unanimous.

Danehey moved to adjourn the hearing at 8:35 P.M., seconded by Bangert, all in favor, unanimous.

Respectfully Submitted,

Nicole Harris
Administrative Assistant to the
Zoning Board of Appeals