Lincoln Conservation Commission
MINUTES
Wednesday, October 4, 2006
Lincoln Town Offices
COMMISSIONERS: David Katsuki, Peter Von Mertens, Jim Meadors, Sara Lewis, Ben Horne, Ari Kurtz, Jim Henderson STAFF: Tom Gumbart, Angela Seaborg.
WETLAND FILINGS
Notice of Intent Continued from July 19, 2006: Thomas Dooley. 31 Old Concord Road (Map 61-Block 4-Lot 0). For construction of a single-family dwelling with attached garage, site preparation, landscaping, amenities and utility connections.
Jim Meadors, Conservation Chair, opened the final hearing for a proposed project including site preparation; construction of a single-family dwelling with attached lower-level garage; deck; driveway; associated drainage and construction of landscape amenities within the 100-foot buffer zone resource area. The closest point of project disturbance is 50 feet from the wetland.
The Commission deliberated the proposed project first in light of the State Wetlands Protection Act. They reviewed the timeline of the filing and letters of concern submitted by area residents. As the State Wetlands Protection Act is less restrictive than the Lincoln Wetlands Protection Act, and the project meets most of the standards set forth under the State Buffer Zone Policy, the Commission agreed that the project was permissible under the State Wetlands Protection Act.
A motion was made and seconded, to APPROVE the project proposed in the Notice of Intent under the State Wetlands Protection Act. The Motion to APPROVE all proposed work under the State Wetlands Protection Act passed by a vote of __7_-_0__.
The Commission then deliberated the proposed project under the Lincoln Wetlands Protection Bylaw. Because there is an existing Order of Conditions on lots 5&6 and this application is for proposed work on lot 6 only, the Commission's Legal Council advised the Commission to handle this request as an amendment to the existing Order of Conditions and to consider it as a request under a Notice of Intent in its own right. The reason for treating this application as an Amended Order of Conditions is to alleviate any confusion regarding conflicting conditions for work on the same portion of the property.
The Commission reviewed sections 2, 7 and 12 of the Lincoln Wetlands Protection Bylaw, reading out loud and clarifying pertinent sections.
"When making its decision on a permit application, the Commission, in accordance with Section 7 of the Wetlands Protection Bylaw, shall take into account the cumulative adverse effects of loss, degradation, isolation, and replication of protected resource areas throughout the community and the watershed, resulting from past activities, permitted and exempt, and foreseeable future activities. Furthermore, under Section 7 of the Bylaw, the Commission may deny permit applications for development projects on lands within the upland buffer zone resource area, 50 to 100 feet from wetlands, if it determines that the project, or the land and water uses associated with such project, might cause significant adverse effects, immediate or cumulative, upon the resource area values protected by the Bylaw".
Section 12 of the Wetlands Protection Bylaw states:
"the applicant for a permit shall have the burden of proving by a preponderance of the credible evidence that the work proposed in the permit application will not have significant adverse effects, immediate or cumulative, upon the resource area values protected by this Bylaw".
Through specific deliberation, as outlined below, the Commission felt that the applicant proved by a preponderance of the credible evidence that the proposed project will not have significant adverse effects, immediate or cumulative, upon public or private water supply; storm damage prevention; protection of fisheries; protection of habitat for rare species; or agriculture, aquaculture, or recreation values deemed important to the community. However, the applicant failed to prove by a preponderance of the credible evidence that the proposed work will not have significant adverse effects, immediate or cumulative, upon protection of groundwater; flood control; erosion and sedimentation control; water quality; avoidance of water pollution; and protection of wildlife habitat.
The Commission found that the applicant proved by a preponderance of the credible evidence that the proposed work will not have significant adverse effects, immediate or cumulative, upon the protection of public or private water supply. Since the surface and groundwater in the proposed construction area fail to contribute to current or potential public or private water supplies, the applicant proved by a preponderance of credible evidence that the proposed development would not have significant adverse effects upon the protection of this resource area value.
The Commission found that the applicant failed to prove by a preponderance of the credible evidence that the work proposed in the permit application will not have significant adverse effects, immediate or cumulative, upon the protection of groundwater. One purpose of the Lincoln Wetlands Protection Bylaw involves maintaining the quality and level of the groundwater table. The applicant proposed to maintain the groundwater quantity at the site by trapping and leaching runoff from Old Concord Road and the proposed dwelling into a constructed detention basin located in front of the house. However, runoff from such impervious surfaces would likely contain various pollutants, such as household chemicals, fertilizers and deicing salt, from the proposed dwelling, which could adversely affect groundwater quality. Pollutants
normally associated with house exterior maintenance activities such as painting, power washing, and mold and mildew control could find their way into groundwater. Furthermore, since the project includes approximately 3,617 square feet (20% of the outer 50-foot buffer zone resource area) of impervious surface cover on the site and approximately 6,748 square feet (40% of the outer 50-foot buffer zone resource area) of total disturbance, the groundwater recharge occurring at the proposed leaching beds would proceed at a faster rate and would be more concentrated with pollutants than would dispersed groundwater recharge taking place throughout the site. This process could alter both the level and quality of the groundwater in the area of 31 Old Concord Road. As a result, the applicant failed to prove by a preponderance of credible evidence that the proposed project would not have significant adverse effects upon the protection of this resource area value.
The Commission found that the applicant failed to prove by a preponderance of the credible evidence that the work proposed in the permit application will not have significant adverse effects, immediate or cumulative, upon flood control. While some of the runoff from the proposed impervious surfaces for the project would be recharged to the ground through leaching beds, such impervious surfaces would still likely increase runoff into the 50-foot buffer zone resource area, as well as into the adjacent wetland. Therefore, the project could cause increases in downstream flood peaks. Furthermore, the process of sending bursts of water into the ground through the proposed leaching system could saturate the soil in the areas not covered with impervious surfaces, thereby limiting the ability of the wetland and its surrounding buffer
to absorb enough water to prevent flooding under wet weather conditions. Moreover, even though the applicant did not propose work in the inner 50-foot buffer zone resource area, the project would likely decrease the overall flood storage capacity of the wetland and its surrounding buffer, given that the project would be located almost entirely within the 50 to 100-foot buffer zone resource area. Consequently, the applicant failed to prove by a preponderance of credible evidence that the proposed project would not have significant adverse effects upon the protection of this resource area value.
The Commission found that the applicant failed to prove by a preponderance of the credible evidence that the work proposed in the permit application will not have significant adverse effects, immediate or cumulative, upon erosion and sedimentation control. Development of the lot as proposed in the plans requires a massive amount of fill and grading within the 50 to 100-foot buffer zone resource area with work occurring right up to the 50-foot line. Our experience with construction projects is that it is very difficult to fully contain sediment on such a disturbed site. The extent of work and the proximity to the inner 50-foot buffer zone resource area makes it quite possible that there will be short-term adverse impact from erosion and sedimentation. In the long-term, runoff comprises the most likely cause of erosion
and sedimentation from the site. The applicant claimed that the maintenance of the 50-foot vegetated buffer zone resource area, as well as vegetated terraces in the northerly segment of the site, stone drains at the end of the driveway, and the maintenance of vegetated cover over the remainder of site would constitute sufficient long-term erosion and sedimentation control. However, the proposed vegetated terraces would cover only a small portion of the total site. Additionally, while the stone drains would absorb some runoff from the site, a substantial amount of surface water containing sediment loads would likely still flow from the impervious surfaces into the vegetative cover on the site, the 50-foot buffer zone resource area, and the wetland. Furthermore, if future landowners landscape the site, which remains likely, the vegetative cover on the site would become greatly diminished, as turf grass can act similarly to an impervious surface with regard to
runoff. Therefore, under these circumstances, the mandated 50-foot buffer zone resource area would be the only remaining erosion and sedimentation control for the majority of runoff from the site. Accordingly, the applicant failed to prove by a preponderance of credible evidence that the proposed project would not have significant adverse effects upon the protection of this resource area value.
The Commission found that the applicant proved by a preponderance of the credible evidence that the work proposed in the permit application will not have significant adverse effects, immediate or cumulative, upon storm damage prevention.
The Commission found that the applicant failed to prove by a preponderance of the credible evidence that the work proposed in the permit application will not have significant adverse effects, immediate or cumulative, upon water quality and avoidance of water pollution. Given the proposed increase in impervious surfaces at the site, more runoff would flow from the site into the 50-foot buffer zone resource area and the adjacent wetland. Additionally, the groundwater recharge would be more concentrated and would occur more rapidly as a result of the increased impervious surface area and proposed leaching system. Furthermore, since the applicant proposed to develop the land for residential purposes, more pollutants would be present on the site. These pollutants might include household chemicals disposed of in the garbage
or down the drain, fertilizers, pesticides, deicing salts, and pollutants normally associated with house exterior maintenance activities such as painting, power washing, and mold and mildew control. Such contaminants could pollute surface water runoff and groundwater recharge, which, in turn, could adversely affect water quality and contribute to water pollution. Therefore, the applicant failed to prove by a preponderance of credible evidence that the proposed project would not have significant adverse effects upon the protection of this resource area value.
The Commission found that the applicant failed to prove by a preponderance of the credible evidence that the work proposed in the permit application will not have significant adverse effects, immediate or cumulative, upon protection of wildlife habitat. The construction of the proposed single-family dwelling would require site preparation, including clearing, grubbing, excavation, and rough grading. Such processes would remove a significant portion of the vegetative cover currently present on the site. This vegetative cover serves as habitat for a wide array of wildlife species, including birds such as the American woodcock, mammals such as eastern cottontail and white-tailed deer, reptiles and amphibians such as eastern garter snake and pickerel frog, and a wealth of smaller organisms. There is a report of a blue-spotted
salamander in the immediate area, a species of special concern in Massachusetts. In addition, the dwelling, with its amenities, utilities, and landscaping, would preclude wildlife from inhabiting the site in the future. As a result, the applicant failed to prove by a preponderance of credible evidence that the proposed project would not have significant adverse effects upon the protection of this resource area value.
The Commission found that the applicant proved by a preponderance of the credible evidence that the work proposed in the permit application will not have significant adverse effects, immediate or cumulative, upon the protection of fisheries and habitat of rare species, including rare plant species. Since neither identified fisheries nor state or federally listed plant or animal species exist on or near the site, the applicant proved by a preponderance of the credible evidence that the proposed project will not have significant adverse effects, immediate or cumulative, upon this resource area value. There is the report of the blue-spotted salamander near the site but it was not formally recorded.
The Commission found that the applicant proved by a preponderance of the credible evidence that the work proposed in the permit application will not have significant adverse effects, immediate or cumulative, upon agriculture, aquaculture, or recreation values deemed important by the community. Specifically, use of the site for agriculture is no longer an economically viable practice. In addition, the site lacks sufficient surface water for aquaculture practices. Furthermore, the site remains unavailable for public recreation based on inadequate access and abutting private properties. Thus, the applicant proved by a preponderance of the credible evidence that the proposed project will not have significant adverse effects, immediate or cumulative, upon this resource area value.
As set forth in Section 7 of the Bylaw, "where the Conservation Commission determines that the proposed activity would have adverse effects on the resource area values protected by the Bylaw, the applicant shall prove by a preponderance of the credible evidence that there is no practicable alternative to the proposed activity that would have materially less adverse effect on the resource area values protected by Bylaw". “No build” areas constitute practicable alternatives to development activities. The applicant did not demonstrate that a “no-build” alternative is not viable for the lot at 31 Old Concord Road. The original parcel purchase by Mr. Dooley has five building lots with homes that have been sold and there is a sixth lot that appears to be buildable.
Development of this marginal lot to get seven rather than six lots from the site is not essential for the owner to realize a reasonable return on his original investment. The applicant did not provide any financial documentation of why the “no-build” alternative would not be feasible. The Commission raised the possibility of an alternative where the two remaining lots are combined into one larger lot. The larger lot should have more value on the market. However, the applicant did not offer this as one of the potential alternatives.
According to Section 7 of the Bylaw, "lands within 100 feet of wetland resource areas are presumed important to the protection of such resources because activities undertaken in these upland buffer zone resource areas have a high likelihood of adverse impact upon the wetland, either immediately, as a consequence of construction or clearing, or, over time, as a consequence of daily operation or existence of the activities". As noted in Section 7.1 of the Lincoln Conservation Commission Regulations (June 2005), "a growing body of evidence suggests that even “no disturbance” areas reaching 100 feet from wetland resource areas remain insufficient to protect many important wetland resource characteristics and values. Therefore, the Conservation Commission generally discourages any work or activities within 100 feet
of wetland resource areas". Pursuant to Section 7 of the Bylaw and Section 7.1 of the Regulations, the Commission may even require that an applicant maintain a strip of continuous, undisturbed vegetative cover in part or all of the 100-foot area, unless the applicant provides evidence deemed sufficient by the Commission that the area or part of it may be disturbed without harm to the values protected by the Bylaw. In accordance with Section 7.2 of the Regulations, if the Conservation Commission requires a 100-foot naturally vegetated buffer strip, construction activities in that area become prohibited. The applicant failed both to meet its burden of proof under the Lincoln Wetlands Protection Bylaw with respect to all proposed work on lot six at 31 Old Concord Road. Furthermore, the applicant failed to prove by a preponderance of the credible evidence that there is no practicable alternative to the proposed activity that would have materially less adverse effect on
the resource area values protected by the Bylaw.
The existence of the previous Order of Conditions (DEP #203-772) governing work at 31 Old Concord Road (and 33 Old Concord Road) also affects the ability of the Commission to permit the proposed house project. This original Order of Conditions was issued to allow restoration work within the buffer zone resource area and to allow for the control of exotic invasive vegetation. At this point in time this Order of Conditions is still valid. Conditions include no mowing and no dumping within any of the buffer zone resource area on the site. The Commission finds that the proposed house project is in direct conflict with these conditions.
Accordingly, the Lincoln Conservation Commission denied the project proposed in Mr. Dooley’s Notice of Intent under the Lincoln Wetlands Protection Bylaw and further required that the lot at 31 Old Concord Road be maintained as a 100-foot naturally vegetated buffer, consistent with the previous Order of Conditions for the subject property.
A motion was made and seconded, based on the findings above, to DENY the project proposed in the Notice of Intent.
The Motion to DENY all proposed work passed by a vote of __7_-_0__.
Jim Meadors (yes)
Peter Von Mertens (yes)
Jim Henderson (yes)
Ben Horne (yes)
David Katsuki (yes)
Ari Kurtz (yes)
Sara Lewis (yes)
A motion was made and seconded, based on the findings above, to amend the Existing Order of Conditions to allow a structure and modifications in the proposed area of the property.
The Motion to AMEND THE EXISTING ORDER OF CONDITIONS was denied by a vote of __7_-_0__.
Jim Meadors (no)
Peter Von Mertens (no)
Jim Henderson (no)
Ben Horne (no)
David Katsuki (no)
Ari Kurtz (no)
Sara Lewis (no)
DISCUSSION ITEMS
Todd Pond
Conservation Staff will be arranging a time to paddle around Todd Pond to assess the status of invasive aquatic vegetation in the pond. This investigation will help the Commission determine whether it is appropriate to permit chemical treatment of this and other ponds in Town.
Nyanza Site
The EPA will hold a meeting on October 26, 2006 to discuss the progress of this super-fund cleanup site.
Weekend of October 7th
Anna Wilkins and Jane Layton will be leading a canoeing trip on the Sudbury River from 10-12. Tom Gumbart will lead a clearing work day at Browning's Field from 9-3.
Emergency Planning
Public Safety has reintroduced their need for a secondary school access route. Tom Gumbart explained that they will need to take the lead in organizing and presenting their plan.
MACC Conference
Coming soon to a conference room near you!!
Trail behind Love Lane
Peter Von Mertens recently walked the trail. They have been doing a considerable job at clearing the horse manure from the trail. The Commission should still find a time to work with Love Lane staff to add a layer of gravel in the low parts of the trail.
Community Preservation Committee
The Commission would like to maintain their available funds at $100,000. Currently $50,000 has been allocated to various conservation land purchases in cooperation with the Town and RLF. They will request an additional $50,000 to replenish their budget and will also communicate with other conservation organizations regarding potential projects that may require additional funds in the next year.
State of the Town Report
Tom Gumbart has forwarded a draft of the State of the Town Report to Commissioners for review. The report will be submitted on October 5th to inclusion in the Town-wide report.
Sunnyside Stream Restoration Project
The Stream corridor has been daylighted and restored by the National Historic Park. Plantings should go in over the next couple weeks. Commissioners should find a time to go see the great work that the Park did on the project.
Open Space Planning
The first Committee meeting went very well. The Committee will be breaking into working groups to focus on specific issues prior to the next all Committee meeting.
Beavers
Ruth Callahan has breached the dam below the Railroad tracks and did not see further activity of the beaver. She will continue to monitor the situation and will do trapping if necessary.
ACTION ITEMS
Emergency Certification Ratified for Beaver dam breaching at the Railroad.
Minutes Approved 9/20/06
Bills & Payroll Signed
Respectfully Submitted,
Angela Seaborg
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