Conservation Commission
Meeting Minutes

Minutes of meeting dated March 7, 2002

Present:  Nancy Naslas, Paul Locke, Bruce Rider, David Valade, Susan Murphy, David Carpenter.

Voted:  to approve the minutes of 2/7/02.

Voted:  to pay Nancy Pritchard $75 for secretarial services during the month of February.

Nancy Naslas:  I have received a notice to come back to speak to someone about our budget report, but it doesn’t say where or when so I will find that out tomorrow.

We still have a lot of budget for this fiscal year we haven’t used yet, but we are anticipating that we will during the spring unless drought conditions stop us from doing our usual work.  We maintain 3 ponds in Melrose.  We spot treat them with herbicides to stop growth of nuisance vegetation.

David:  We did a considerable amount of raking, particularly at Towners Pond, and have it all under control now.  There are chemical treatments to make sure it doesn’t get back out of control.  The statement about assuming the non-drought conditions, at one point we couldn’t do the mechanical raking because at Swains or Towners Pond there was so little water in them they couldn’t bring any equipment into it.

Correspondence:

·        Mass Wildlife News

·        The Community Reservation Coalition

·        Letter from DEP Wetlands & Waterways Group, proposing two amendments to the Wetlands Protection Regulations.

Mt. Hood Park/Golf Course

There will be a special meeting of the Board of Aldermen, Monday, March 11 at 6 p.m. regarding the following order:

“Requesting the Board of Aldermen to authorize the City Treasurer, with the approval of the Mayor, to issue bonds or notes and or borrow funds in the amount of One Million Seven Hundred Thousand ($1,700,000.00) Dollars, for the purpose of construction, stabilization and environmental remediation at Mount Hood Park and Golf Course.”

Nancy:  I believe this is driven by the fact that their bids expire on the 13^th so they want to approve the money so they can award the contract before the 13^th.

36 Slayton Road/James Confalone

Nancy:  We have received a certified document, The Order of Conditions, from James Confalone’s lawyer, Theodore C. Regnante, Esq., on his behalf, regarding 36 Slayton Road.  The cover letter is dated 2/22/02.

Olive Ave. Extension

The Malden Board of appeals have still been very busy right on our property line off Hemenway and Maple Terrace.  They sent some more letters regarding that, and some more meetings, which Bruce has attended.  I will let him fill you in on that.  We do have a letter from Joe Lynch since he couldn’t attend the meeting that Bruce attended.  The gist of his letter is that he is asking Malden to require that the projects, both of Olive Ave. Ext. and James Jones Road, which is right next to us, meet a “ net zero runoff performance standard” with regard to surface run-off control.  Joe’s letter is dated 2/20/02.

Nancy:  Attached to the February 21 Board of Appeals Agenda is:  “The Secretary Malden Board of Appeals hereby move reconsideration of the vote to deny the above petition taken on Monday, 2/28/02”.    We received a voice mail in our conservation mailbox today from an engineer named Ben Smith on behalf of the owner of 195 Olive Ave., which straddles Malden and Melrose, and he would like a call from us regarding our property.  Bruce will take care of this follow up.

Bruce – I have a letter involving Olive Ave. Ext. and it is addressed to the Board of Appeals from the Malden Conservation Commission.  They are informing the Board of Appeals that they have requested the applicant to appear before them and that they have issued a Cease & Desist Order.  When I went to the Board of Appeals meeting, the applicants, since it was a reconsideration hearing, didn’t have any additional testimony.  They voted to approve it with conditions, one of the conditions being that if they construct a road or access to the property, which was their goal, that it would be for the construction of a single family dwelling and not access to a multi family development.  That was what was approved.  Other conditions were the Fire Department and the sprinklers.  Also, they were required in the conditions that any further work needs to go before the Malden Conservation Commission, and in the diagram they had clearly showed that the entire property that they want developed is in the 100 ft. buffer zone border and the stream.  Regarding James Jones Road, it abuts Mr. Rose’s property and it also abuts the farmland.  It is in the buffer zone and ½ of the development will be in Melrose. 

8 Hemenway Ave.

Nancy:  To the new members:  This property we are discussing actually comes out the back of the lot we are going to talk about later.  At the end of Hemenway Ave., #8, is the last house being built up there, and right on there, the back of their property, is a paper road right now.   Now they are talking about building over there.  No one has contacted us other than the Malden Board of Appeals about that so far.  The only contact we had from an applicant is that phone call we got today, so if you could give us an Email and let us know what happens after you speak with them about that, Bruce.

Nancy:  Mr. Amero, would you like to address the board now?

Mr. Amero:  Basically, I am here to give information back finding tonight.  I got my engineer in the process of doing the final survey of the land to come back with an as built.  My dad built 17 years ago and came in front of the conservation, and back then I guess they gave occupancy permit, and then you were allowed a two year period to finish your project to get an as built.  I assumed it was the same way.  Come to find out I went to get an occupancy permit to get signed off so we could live there and then proceed to finish, and the building inspector says that I have to get an as built and get it signed off before I can go for an occupancy permit.  Basically, the project is 99% done.  I can’t put in the grass, obviously because of the time of the year and the weather.  All the grading is done and I will probably have the as built next week from the engineer.  All the hot top is in place.  I don’t have the finish coat of hot top because the hot top plants are closed until April 1.  Basically what I am looking to do is to come back to the next meeting and get some sort of a partial release so I could get an occupancy permit and then continue on and finish the grass while I am living there.  I didn’t know what rules or regulations you have or what could be done so that I could get in there to live.

Nancy:  It is my understanding, based on my conservations with Mr. Gregorio and the Building Dept., that you do not need to have a Certificate of Compliance from us to get your Certificate of Occupancy.  His requirements just happen to require an as built, as do we, so our Order of Conditions is very specific as to what we require.  We need the two sets of as builts and the other things that are listed in the Order of Conditions, which basically means that you need to show us in your as builts and in our site inspection that what you have done matches what you requested to do when you submitted your Notice of Intent and got your Order of Conditions.  I think that your issues regarding occupancy are separate from us.  We wouldn’t hold that up, although he does have copies of our plan which we can hold you to.  So if you are not doing what you said you told us you would do, that is another story.  He won’t wait for us to wait for you to wait for grass to grow basically.  That is not an issue.

Mr. Amero:  So I need to get an as built to him for the occupancy, and then I can go with the grass?

Nancy:  The Certificate of Compliance comes out when all of your Order of Conditions are met.  Your Order of Conditions can pass on to future property owners so long as they have an understanding that an Order of Conditions is still out there.

Mr. Amero:  That is time sensitive, isn’t it two or three years?

Nancy:  You have three years to finish the Order of Conditions.  Within the conditions, one of them is you can’t leave bare earth for a whole growing season.  You need to cover things up as soon as you can.  I am sure you are planning on doing that.

Mr. Amero:  Oh yes, everything is graded and we are just waiting for the ground to thaw.  The building inspector allowed us to put in temporary front stairs because we have to pour the concrete slabs to put in the permanent stairs, and they won’t do that while there is frost on the ground.  So we are right at the end of the project.

Nancy:  Just for the record, we received a letter from an adjacent property owner  regarding the grading and for the record I will read that.  It is addressed to the Planning Board and the Conservation Commissioners:

  “As the project adjacent to us appears to be near completion we are asking that neither a Certificate of Compliance nor occupancy permit be granted until deviations from the approved Order of Conditions and approved plan are corrected.

These deviations include, but may not be limited to, the raising of elevations at and over our property line that are not in compliance with approved plans.  As our deed clearly indicates, the stone wall separating our properties is the property line.  This wall is now buried in spots by approximately three feet of fill making the property line impossible to identify and potentially causing flooding of our property.  Per the Order of Conditions and approved plan, the finished elevations along the property line are to be as existed prior to construction with our property line untouched.  At the Conservation Commission meeting where the project was approved, the owners and builders made assurances that the existing property line was not to be disturbed or modified.  The area bordering our properties is now constructed to be much higher than were existing and planned elevations.

Please advise as to the meeting date at which these issues can be discussed.  Thank you in advance for your cooperation in this matter and I look forward to your response.

Sincerely,

William C. Rose”

Nancy:  I did call and I spoke with Mr. Rose’s wife, Gail, and told her that we would be discussing this tonight, and I did go out and take a couple of pictures of the property, and just to show the other commissioners, this picture down here shows the stream in the middle with the rock wall over here.  Here is the rock wall and this little white square is actually the plan, the 2 x 3 ft. plan, showing your rock, which is where the original stone wall was I think, and since you can see my plan is about 3 ft. high, it is probably about a 4 ft. high change of grade there.   The other piece of correspondence we have was copied to the Melrose Conservation Commission.  It is a letter addressed to Mr. William Rose from John Gregorio, Building Commissioner, Melrose.  It reads as follows:

“Dear Mr. Rose,

As a follow up to our conversation and since receiving your letter of February 25, 2002, I contacted both the general contractor and the owner of the new home at 8 Hemenway Ave.

I also requested from the Melrose Conservation Commission, copies of all site plans and documents they have on record regarding the same lot and the present owner.

Further, the owner was informed of his obligation to comply with the Order of Conditions and site plan and also that I would be unable to issue a Certificate of Occupancy until grading elevations are consistent with the applicable plans.

If I can be of further assistance please do not hesitate to contact this office.”

Very truly yours, John Gregorio, Building Commissioners.”

Nancy:  These are the two pieces of correspondence we have received and I wanted to bring that to your attention in comparing that rock wall with the plans that we have attached to the Order of Conditions.  A proposed railroad tie wall is how it is listed on the map, and looking at the change of grade it goes from 78 to maybe 80, so it should only be about a 2 ft. tall railroad tie wall, and right now it looks like it is a 4 ft. tall rock wall with soil between the rocks, so I am willing to hear anything you would like to say, or any explanation. 

Mr. Amero:  The reason why we had to bring that up so high is when they went to backfill the foundation, etc., there was really no room to get a machine around with the hold up for the foundation, so we had to fill in that area, temporarily bring it up level so the machine could get by the foundation.  I called the machine in to bring that elevation down, and he has been working on that and with the ground frozen, it has been difficult because every time he digs and breaks up the ground, it disturbs the rock wall.  So that will be on the final plan as the correct height.

Nancy:  So you are going to bring that whole flat area down by 2 ft., or at least down to where the wall can only be 2 ft. tall? 

Mr. Amero:  It will be at the grade it is supposed to be at.

Nancy:  I am sure people encounter problems during construction all the time, but in the process of the construction you can come to the Conservation Commission, either with a letter or just come to our meetings and tell us “I am having these difficulties, I am not meeting my plans specifically.  Do I need to resubmit?”

Mr. Amero:  Right.  The other question I have is because we had to go ahead and do this and it took so much effort, we ended up using the stone on site to build a stone retaining wall, and I was curious if there was going to be a problem with maintaining the stone retaining wall instead of the railroad tie wall which eventually would rot away and then would have erosion problems down the road.  I didn’t know if that minor change, I am not talking elevation now but construction of the wall, if that minor change would be adverse or a problem.

Nancy:  I think that anything that is not in the Order of Conditions should be requested from us at least to start out, in a letter, and I believe that is what the Order of Conditions requires that you do, and then from that point we decide if we can just discuss it and we will forward or if we require a new submittal with further hearing.  We need you to put it in writing for us as a first step.  Keeping in mind that your as builts need to match your Order of Conditions plan to get your certificates of compliance, it would be prudent to get things written down and updated.

Mr. Amero:  Okay, that is fine. 

Paul:  I think the law does foresee that there would be some minor deviation from the plan.

Nancy:  If people encountered ledge or ground water in places they didn’t expect.

Paul:  Part of the request for the Certificate of Compliance would be the plans submitted by an engineer, certifying the work is done substantially in compliance with the Order of Conditions and if there are any minor deviations that can be explained at that point.  By waiting until the end at that point, you are running risk that those minor deviations won’t appear minor to the commission, and it is always better to deal with that with a letter and your seeking some assurance as you are going along, rather than waiting to the end and than hoping.  If it is a railroad tie wall, that is probably not a big change, if you want to be sure it is better to come to us first.

Mr. Amero:  That was my intent down the road because I didn’t think I needed to be involved with you people to get an occupancy permit, and then when the Building Inspector denied it, I said I have to go in front of them, and obviously that is why I am here tonight.

Nancy:  He has our plans showing the grading, and his plans were the same as ours anyway.   He might wait until you do fix it to be sure it does match the plans.  I don’t know how his department works.

Mr. Amero:  So basically I need to get that area of grading which I am working on, and there is a machine there.

Nancy:  Before you do that, I would be sure to install more hay bale and silt fence wall on that side of the property again, because right now there is a talk about wall which you are going to be moving, so I would put it at the bottom of the wall, somewhere in between.  You are going to be on the Rose’s property, but as close as you can within your work area to protect that stream because this time of year it is going to get the runoff.

Mr. Amero:  I will get some more hay bales and beef it up there so there is not a problem.  So I can come back with an as built within 2 weeks?

Bruce:  If you want an occupancy requirement, you have to deal with the Planning Board, but we would like you back here in about two weeks to tell us what you are doing, what you plan on doing there, so we know what to expect on the property.  Then we can tell you if you are going in the right direction.  We don’t want to face you when it comes time for your Certificate of Compliance and have to tell you we can’t issue it, that you have to make major changes.

David: In prior cases, something like changing from a wood wall to rock wall, we really didn’t consider it substantive enough to require new filing, and I think we understand too, that when you work on the site and you excavate things like that, the grades bounce all over the place.  At one point you probably had a pile that was pulled out for you down your cellar that might have been 10 ft. over what the ultimacy is going to be.

Mr. Amero:  We ended up pulling up tons of more dirt than we even anticipated.

David:   Our concern ultimately is where you finish at the end, and it’s 2 ft. too high now, but is it the right height when we do it and when we review with you the change from a wood stone and say that is not a problem, then that is really where it comes down to at the end.

Mr. Amero:  So I can come back with all those plans even though the grass won’t be there.

Nancy:  You can come back to us with your plans, but I think it would be more to show us how you changed things from the initial Order of Conditions.  We cannot issue the Certificate of Compliance until all of the items in the Order of Conditions have been met, but our Certificate of Compliance is a completely separate document from the Certificate of Occupancy, so you don’t need to bring us your as builts in two weeks.  What we are suggesting that you bring to us is what you are doing differently from your Order of Conditions and to get those documents.

David:  There may be different issues that we run into on other things, like if you have a construction loan that you are going to convert to a permanent loan.  They might require all of the certificates before they convert the loan.  I don’t know what kind of financing or other things you have had happen.  We have run into that before.

Mr. Amero:  I am running into that problem too.  They won’t give out the final payment until I have a CO (Certificate of Occupancy), so it is just one thing that chases the other, and it has got me going crazy.  Like I said, my dad did this on Swains Pond Ave. like 17 years ago, did the house and moved in, and over the next year he finished his landscaping, etc., and then got signed off and never had a problem, and I had foreseen it as going the same way, but I ran into this.  I will come back in two weeks and we will discuss it then.  Thank you very much.

Public meeting

360 Swains Pond Ave./Shaepe property

The following notice was in the Melrose Free Press:

Legal Notice, Public Meeting, City of Melrose, Conservation Commission will hold a public meeting, Thursday, March 7 at 7:45 p.m. for the requested Determination of Applicability submitted by Matthew Shaepe for repairs to the existing building at 360 Swains Pond Ave.

David:  I visited the site in January and here is an outline of what is happening.  There is an existing structure that is a breezeway and a sunroom on the backside of the property.  Both of them are replaced on the existing footprint.  I am not an engineer or construction person, but I can tell looking at it, as I think you indicated, the foundation needs to be replaced on this.  What they are doing is rebuilding this and I think, changing the purpose of what it is, but on the existing footprint.  There will be excavation as a result.  There is a culverted stream in the backyard.  There are no openings on Mr. Schaepe’s property.  There is a manhole cover, not graded, I think 2 properties north of his.  There was no indication that there was any opening to it on the adjacent property and the adjacent property is pretty overgrown, so if anything, silt or otherwise, floated as the result of water on the top, it is all going to be trapped pretty much at his property line.  There is a wetland that I think is two or three properties down.  He is well outside the buffer zone, so based on what I saw I had two questions:  1) is there an opening that is fairly close to his property and the answer is no; and 2) it wasn’t from a conservation perspective that I was concerned about short term, but it was to find out exactly where the type is and what the construction is because he is going to need to bring some kind of construction equipment in to excavate to do this, and I didn’t want him to have to deal with the hassle with the clay pipe for instance that crushed under the thing and us to have to get involved, because now we have a culverted stream that is collapsed. So based on what I have seen, my recommendation is that we do a positive recommendation, but no further filing required.

Nancy:  I suggest that you flag the culvert during construction so nobody drives anything over it.

Mr. Schaepe:  I called the engineer and he indicated that it was made out of some type of corrugated metal, not that the soil can collapse it.  Then he gave an indication that “well, it could be 5 ft. from your foundation to 15 ft.  He didn’t really have a clear indication of where its exact location is.

Nancy:  If it is metal, you can go out there with a little metal detector.

Mr. Schaepe:  I suppose, but then how deep?  I am not an authority. 

David:  All he knew is where the easement was in your backyard.

Voted:  A positive recommendation, but no further filing required for a Request for Determination of Applicability for repairs to the existing building at 360 Swains Pond Ave./Schaepe property.

David:  On Mr. Schaepe’s filing, we could do the negative determination.  The work does not file a notice of intent which reads as follows:  “The work described in the Request is within an area subject to protection under the Ac, but will not remove, fill, dredge or alter that area.  Therefore said work does not require a filing of a Notice of Intent.”

Nancy:  Paul has volunteered to order 4 sets of the standard round of new commissioner’s documentation.  We have two new commissioners and will be getting two more.  We also need to find the registration forms so they can register with the state. 

Monks Field

Nancy:  I received a phone call from the Little League people regarding Monks Field.  Monks Field is the one on Tremont St., you go from the pool, to the basketball courts and then that little tiny field there.  They want to do some work there, so I gave them an RDA form, but then I also found out from Joe Lynch that now their money has come through, that $400,000 grant to fix the water draining into Ell Pond and reduce flowing, they just might dig up that whole area.  He doesn’t want to undo all the work that they plan on doing this year, when he knows next year or within the next 6 mos., they might be digging in it.   They may or may not come to us next time.

Paul:  Does that drainage pipe go underneath the field?

Nancy:  Yes, it cuts right under all that.  The good news is that the tree warden, Barbara Jessie, was there too.  She said we have all these new trees we can put into all the distrubed areas afterwards.  She has grant money for that.

14^th Green/Penny Lane/Stream

Nancy:  There is another RDA we will be talking about at our next meeting, two weeks from tonight.  I received from the Parks Department, and if you go to it, I think it’s the 14^th green along Penny Lane, if you come up the back road from Route 99  there is that horrible area full of trash, junk, etc.  The stream there is just full of silt, trash, tires, and the stream itself goes up ground, underground.  Because it is all filled in, they would like to clear out that channel and their project says they would like to excavate soils from the stream channel along the section of Penny Road in an effort to open a restricted section to improve the flow of water and such channels will be cleaned of soil, removed only to the original depth and width as defined by the presence of an original cobblestone, sidewall and base.  It was a constructed channel at one point.  They are just going to clean it up to the point of where the old construction is.  There are maps and plans and I will put them on our agenda for next time.  I think it would be prudent if you would take a look at it before this so you get a better handle of what we are talking about.  I will advertise this one in the paper.  Some of the neighbors tend to like to talk about that area, so we want to give the public a chance to respond.  If you are not sure how to get there or would like to just go up there together one afternoon or early morning, or you name a time and I will be happy to take you out and show you around a bit. It is a deserted area.  People see one big piece of trash and then everybody else puts their trash there, and I think it will help if they at least get the trash out of there, but they are planning on cleaning up the whole thing.  They are hoping to get mosquito control money to help them out doing it as well.

Paul:  What they need to do is to cut off the access of Route 99.

Nancy:  So we have one RDA for sure regarding Penny Lane, and possibly two regarding Monk Field at our next meeting.

Bruce:  I bought a couple of things from the Conference; one is the Massachusetts Inland Wetland Replication Guidelines.  I also have a copy of the proposed amendment, and an announcement for Bio Diversity Days which is May 31 – June 3, and it is essentially about people going for a lot of walks through the green space around here.

Paul:  They are also beginning to make available the lists from the Bio-Diversity Days.  It is on the Executive Office of Environmental Affairs’ web sites, summaries of the animals they are finding.

Bruce:  I have a Bio Diversity poster here where they have all the endangered species in the state of MA.  They are going to be sending out a CDROM with the towns Bio Diversity maps.  One of the things that I attended at the Conference was a little seminar on the 40B filings. This might be something that would come up in our city since we do not have 10% of our housing allocated to affordable housing.  Any applicant who has applied and been denied a permit to build can come back with a 40B filing which is the anti-snob law, and what that does is bypass the town’s bylaws.  They go straight to the Board of Appeals, and at the Board of Appeals they can do one of 3 things; they can approve it as is; they can approve it with conditions; or they can deny it.  If they deny it their chance of winning the denial, because they are going to have to go before the State, is almost zero.  If they approve it with conditions, then they have a good chance of maintaining those conditions.  Now the recommendations were that: 1)  we go before the Board of Appeals and we educate them on the requirements of the Wetlands Protection Act, and 2)  we give them copies of our boiler plates of conditions.

Nancy:  You are saying 40B means they can bypass the Wetlands Protection Act?

Bruce:  Yes, they can bypass a hearing before the Conservation Commission.  But, the way the law is written, we can have a lawyer write up an opinion stating that since the Conservation Commission is not one of the boards that is specifically mentioned in 40B,  we can still require them to come before us.  Since our commission does not have bylaws to pursue that, we are regulating the state Act, and then they would theoretically be required to appear before us for any filing, so we will still maintain a voice, but for each 40B application we will have to have a lawyer file some documents.  We would need access to the City Solicitor or some other attorney that we may have.

Susan Murphy:  How often has this happened in Melrose.

David:  It was threatened, but it did not happen.

Bruce:  The only way that they (The MACC) said to prevent it from happening is let’s say we have a development coming the size of Fidelity/Pembroke, and they have 400 or 500 some apartments.  10% of those apartments would be for affordable housing.  If we could get them to designate that 10% in perpetuity as affordable housing, then the entire 480 or some odd apartments would be counted as affordable housing for the city.  That is the way the math works.  It doesn’t make sense.  It is state math, and that is the way the math

works.  So I just want to make the board aware if there is a 40B filing or we hear of one that we need to take action and appear at the meeting.

Nancy:  Maybe just a short letter to that effect without going into too many details, but just say please notify us at your earliest convenience.

Bruce:  Or we go before the Board of Appeals and have an education session with them on the Conservation Commission, provide them our standard package of Orders of Conditions, how they are important to the Wetlands Protection Act, and that way make them Conservation Commissioners so to speak.  That way they can take in account what we have and where we put it, etc.

Nancy:  Sounds like you are volunteering.

Bruce:  I guess so.

Nancy:  That is a great idea.

David Carpenter:  I will talk to some attorneys and see if anybody has got any insight that might be useful for us.

Conant Park/Spot Pond Brook Drums

Nancy:  I managed to volunteer myself to go out and sample those drums after all.  I am going to go out with the emergency management.  The drums’ tops have been cut off, they are empty.  I am just going out with a Photo Ionization Detector (PID) to detect the presence of organic vapors like gasoline, petroleum, etc.   I will take some samples and I will analyze those samples with my hand held, and then send in one or two samples.  I found a local LSD PG right on Tremont St..   He hires out his staff to do all the field work at environmental investigation sites.

Paul:  What is his name?

Nancy:  Luke Fabbri.

Voted:  To open for public comment: 

No comments.

Voted:   To close public comments.

Paul:  I did talk to Alderman Boisselle earlier today, and he said that the Mayor is probably going to be very aggressive in cutting the budget.

Nancy:  Yes, I am thinking we are going to have money left over this year.  Because of the drought we won’t be able to do a lot of what we do anyway, which is a good thing for the city in the whole. I found out after we had done our budget that all departments had been requested to submit at least 5% less than they had the year before.  Ours was about 40% more.

Voted:  To adjourn at 8:20 p.m.

Respectfully submitted,

Nancy Pritchard
Conservation Secretary