Minutes of November 16, 2000

[Approved 1/4/01]

Present: Bob Boisselle, Paul Locke, Peter Mortimer, Nancy Naslas, David Valade

It was voted to accept the minutes of October 19, 2000 and November 2, 2000 as amended.

Correspondence

"Mystic River Water Association has received funding from the U.S. Environmental Protection Agency to identify and prioritize areas of open space that could play a significant role in minimizing flooding and protecting water resources in Mystic River watershed. Working closely with the Project Impact/Upper Mystic River Watershed Board this past summer, a MRWA intern examined MassGIS open space data for communities in the upper watershed. We hope to expand on this groundwork by conducting formal interviews with town planners and conservation commissioners or staff. We believe that planners and conservation commission officers such as yourself are best informed about your town's trouble-spots and significant open space parcels, particularly those under the greatest threat of development. We would like to set up a meeting with you to gather this information and tell you more about what we're doing in the watershed. One of our goals in this project is to provide core towns in the watershed with an up-to-date open space assessment as it relates to flooding prevention and the protection of water resources. We hope this will be useful to you in the context of FEMA's Project Impact, the recently-passed Community Preservation Act, and Governor Cellucci's Executive Order 418. Our graduate student intern, Vanessa Rule, will be contacting you in the coming week to set up a meeting. Please contact Vanessa or me at 781-316-3438 or by e-mail (beckrule@ziplink.net) if you have any questions.

Sincerely, Grace I. Perez, Executive Director." (Note: Grace Perez contacted Bob today and he will be getting back to her soon).

Department of Environmental Management, Peter C. Webber, Commissioner:

"Dear Friend of Community Trees, I am pleased to announce the availability of Mass ReLeaf grants for community tree-planting. These grants are being funded by the generous contribution of $30,000 to the Mass ReLeaf Fund by Mass Electric. Matching grants of up to $5000 will be made to enable cities and towns in the Mass Electric service area to purchase trees for planting on the public right-of-way. This is an opportunity for communities to demonstrate the planting of appropriate and low-growing trees which are compatible with utility lines. Mass Electric arborists will be available to consult with applicants to plan and design projects. Grants will be available to municipalities and non-profit groups to purchase trees for planting on public property. Mass ReLeaf grants will be awarded on a competitive basis to communities proposing well-planned, visible tree-planting projects; while demonstrating strong community support and the ability to properly maintain the trees. Grant recipients must make a matching contribution toward their project of in-kind or contracted labor to plant and care for the trees. The trees may be planted in the Spring of 2001. Mass ReLeaf continually seeks funding for community tree planting from both public and private sources. We are pleased to join with Mass Electric as a partner in this unique grant program. Please direct any questions to Edith Makra at 781-741-5909. Please note the attached application is due December 8, 2000. We look forward to supporting your efforts to plant trees in order to enhance the quality of life in your community." (Bob will refer this information to Rick Amirault).

Elwell Circle Subdivision, Malden/Melrose City Boundary

Bob stated that he had a call concerning a project going on in Malden, and there was water on the property in Malden which was going to be redirected off the property into Melrose. Bob contacted the City Engineer, who wasn't aware of any particular project like that and Joe Lynch, acting DPW Supt. and City Engineer, Joe Lynch, drafted the following letter to Mr. Russell, City Engineer, Malden:

"Yesterday a constituent of Malden informed the City of Melrose Public Works Department of the above stated planning board public hearing to discuss a petition from Richard Marchese in regards to the Elwell Circle Subdivision. As the property abuts the Melrose/Malden city boundary, and with Melrose being down stream and at a lower gradient than the proposed subdivision, it is of utmost importance that the City of Malden firmly require this subdivision to meet the "net zero runoff" policy and that all runoff is collected and discharged in an appropriate and legal manner that complies with Massachusetts General Law, chapter 131, section 40 and it's storm water management policy. From initial investigations, it is also evident that this subdivision abuts conservation land in the City of Melrose. As such, it is imperative that all of the necessary provisions are undertaken in order to meet the Wetlands Protection Act and also requirements from the Melrose Conservation Commission. Given the short notice, I will not be able to attend this evening's public hearing. However, I anticipate that all of the above issues have already been addressed and if not, are dealt with prior to the subdivision's final approval. I thank you for your time and should you require any additional information, please feel free to contact me."

Cc: Conservation Commission, Bob Boisselle; John V. Scenna, Interim Deputy City Engineer.

Aquatic Control

A scheduled has been sent to us. There will be some post treatment inspections of the ponds and they are due for an end of a year report this month. They also indicated some plans for the upcoming year 2001: Ell Pond - Initial herbicide treatment; follow-up algaecide treatment; Towners Pond - Spot treatment of submersed and floating-leafed vegetation and algae treatment (if required); Swains Pond - Mechanical Hydro-Raking of emergent vegetation (that is still up for discussion). They have also discussed weed control work on the ponds that abut the golf course since they are going to be in the area. Bob will talk to Rick to see if he is interested in doing this.

News of the Fells

The Fells trails are a disgrace. It looks like illegal mountain biking has done a job. This newsletter has pictures of what these bikes have done to trails, making them one big mud hole. In the past the 2000-acre Fells provided a sanctuary for wildlife and a place of quiet solitude and renewal of spirit for hikers. The reservation was carefully monitored and trails were left in a natural state. According to a veteran Fells hiker, in the mid 80s many hiking trails required "cutting back the vegetation on both sides so the path would not be obscured. Fallen trees were also picked up. No programs were ever set in place to see that the prohibition of illegal and damaging mountain biking was enforced. What has happened, the highly organized mountain bike organizations wasted no time in seizing on the opportunities created by this vacuum and began to publicize the Fells as Mecca for wide-open riding on all trails regardless of the rules. Riders began to flock to the Fells as the message got out. Here is a quote from one biker on a mountain bike web site, "Since I live only a few blocks from the Fells, I tend to do most of my riding there. You can ride fire roads until you are blue in the face, but the best riding to be had is on the single track." They are looking for a possible banning of bikes on the Fells trails. If you want to look at the damaged site you can see www.wheeled-locust.org. There are scores of photos from all sections dramatically documenting devastation caused by illegal mountain biking to hiking trails and wildlife habitat.

Mt. Hood Fill

Nancy went up and looked at their files and she made a few photo copies of a couple of the chemical analysis sheets. She is concerned about the fact that some of the results list: total petroleum hydrocarbons are present in this clay material. Nancy's recollection is that this material is being presented to us as clean, and not contaminated in any way. Nancy is looking to Bob or Paul and the DEP as to what our next course of action should be. She would be happy to write a letter to the city, asking for more information and find out who is following up on this and who is reviewing these results. Nancy don't feel this is an acceptable material to have in the soil up there and she is not sure how to proceed.

Bob: Are any of the analysis above the state's standards for soil?

Nancy: I am not sure regarding reportable quantities since this soil is being brought into a clean area, but they are below the cleanup category standards, the most stringent ones, and also keeping in mind this clay will be underneath a foot or more of loam and grass, but I was disturbed to see that there are petroleum hydrocarbons, but also keeping in mind that these are just a couple of lab sheets without any qualifying statements regarding the methodologies used and the other problems they could have had. I think we need some more information, which is the first step.

Paul: Even though it is under the cleanup criteria, there are provisions in the regulations that are intended to prevent people from bringing in contaminated materials into clean areas, so these anti-degradation provisions that would apply to this. So if in effect the results are real and they are not artifacts from that particular method, which they could be, then they may not only be breaking the contract they have with the city to be bringing in clean fill, but Modern Continental might be liable for what has been created.

Nancy: So perhaps the first step is to bring these to the appropriate person's attention.

Paul: To DEP or to Steve Lipman.

Nancy: Could you write down his name and where I should address that to. I will send it to him and I will send it also to Rick Amirault, Eng. Dept. and the Mayor as well, to let them know I am concerned about this. I can do that on behalf of myself or on behalf of the commission, whichever you think would be better.

Bob: You can do it on behalf of the commission. You can Email a copy to me and Paul.

Public Hearing

470 Lynn Fells Parkway/Dunkin Donuts

DEP #217118

In accordance with the provisions of Mass General Law, Chapter 39, Section 23B, the Melrose Conservation Commission will hold a public hearing Thursday, November 16, 2000 at 7:45 p.m. in the Mayor's Conference Room, Second Floor, City Hall. The purpose of the hearing is to discuss the Notice of Intent submitted by Konstantino Skrivanos for the demolition of an existing service station and the construction of a new Dunkin Donuts with associated parking, utilities and landscaping located at 470 Lynn Fells Parkway in Melrose. Any interested person wish to be heard in this discussion should appear at the time and place designated.

Melrose Conservation Commission, Melrose Free Press 11/9/00

David: It says right here "demolition of an existing service station", but when I drove by it is demolished. I am confused why we are getting an NOI for something that is done.

Bob: we can ask the applicant when he comes forward. Who is representing the Dunkin Donuts.

Mark Belter: I am from Allen & Major Associates of Woburn.

Jim McAvoy: I am from 723 Main Street, Melrose.

Mark Belter: As you know we filed an NOI for the proposed Dunkin Donuts. This project site is sitting in bordering land subject to flooding in the Ell Pond Area. Because it is sitting in bordering land subject to flooding we had filed the NOI and our design constraint in the project is to maintain incremental flood storage up to the 100 year flood elevation. In our proposed grading plan we have met that requirement and made a slight increase in storage capability at the site. That really is all there is to the site.

Bob: You say you increased the storage area, how did you do that?

Mr. Belter: Just through grading. It is very marginal. The site is very flat and the size of the site is limited, so we are really grading pretty much to the contours that are existing, but in grading and creating our models for the project, we actually come with a slight gain in incremental storage.

Paul: Is there any particular area that is going to be lowered?

Mr. Belter: No, it is just in general a proselyte, will be slightly more. There is no significant depression of any kind that would indicate in obvious areas.

Bob: Since there was a gas station there before, was there any environmental site testing done or Phase 1 done on this site?

Jim McAvoy: It has been done and poor resilient was removed.

Bob: What was removed? The soil is all removed?

Mr. McAvoy: Yes

Bob: So you have a clean bill?

Mr. McAvoy: I believe so.

Bob: Any other questions from the committee?

Paul: As a gas station, most of the property was paved. Will it be the same?

Mr. Belter: Yes, we did not increase impervious area.

Nancy: Is this little stream off the map there, is there more than 200 ft. from that stream?

Mr. Belter: I believe we are, yes.

Nancy: The one that comes out of Ell Pond next to the Crystal St. park area.

Paul: I think it is culverted there.

Nancy: That would be my only concern, would there be any runoff from the site, more specifically during demolition and soil removal, any runoff getting into that stream which is narrow.

David: Looking at this we have 1 inch it goes 500 ft., and that is maybe 28th of an inch or so, so somewhere around 200 ft.

Bob: One of the plans I believe also shows haybales more in the left hand corner of the picture. Is that correct, are your haybales going to be?

Mr. Belter: We really don't have enough room to stake haybales given the paving area to the property line.

Nancy: Right now there is a lot of bare earth on the lot, right?

Mr. Belter: I have not visited the property recently.

Nancy: Does all the water go to catch basin on site?

Mr. Belter: There ia no catch basin on the site. It is all sheet flow.

Nancy: Sheet flow to the street?

Mr. Belter: No, not necessarily. Sheet flows in all directions, some comes off the back, come off the front and some off the side.

David: Based on your changes, is it going to flow the same way it did before?

Mr. Belter: Yes, we maintain the same flow patterns for the proposed conditions, we really didn't have any choice but to do that.

Bob: It is all parking, no drive through here right?

Mr. Belter: No drive through. We really didn't have a choice.

Paul: It seems straight forward.

Bob: The calculations are still the same.

Public Hearing:

There was no one in favor of this project.

There was no one against the building of Dunkin Donuts on Lynn Fells Parkway.

Voted: to close the hearing.

Voted: to approve the project subject to issuance of an Order of Conditions.

Bob: We will have the Order of Conditions in probably a week or two.

3 Hemenway Ave., William Rose

Public Meeting, City of Melrose, Conservation Commission

Melrose Conservation Commission will hold a public hearing Thursday, November 16, 2000, at 8:30 p.m. in the Mayor's Conference Room, Second Floor, City Hall. The purpose of the hearing is to discuss the request for a determination of applicability submitted by William Rose for the gathering of information concerning the filling in of a swale at 3 Hemenway Avenue. Any interested persons wishing to be heard in this discussion should appear at the time and place designated. Melrose Conservation Commission, Melrose Free Press, 11/9/00

Nancy: Could we ask the members of the public if they know of anyone else that was planning on coming at 8:30 p.m.?

There were others members expected.

Voted: to recess until 8:30 p.m.

Hearing:

Bob: To the request of determination of applicability submitted by William Rose for the gathering of information concerning the filling in of a swale at 3 Hemenway Ave., any interested persons wishing to be heard in this discussion should appear at this time and place of designation. Melrose Free Press 11/9/00

Bob: We received some clarification from the Department of Environmental Protection, Wilmington office, concerning DEP File #217-107 to George E. Richardson, Esq.:

"The Massachusetts Department of Environmental Protection is in receipt of your letter dated October 4, 2000 in which you summarize your position relative to certain work being conducted along Hemenway Ave., Melrose, MA pursuant to a Superseding Order of Conditions which the Department issued to Robert E. Senier on May 15, 1998. The work involved the partial extension of Hemenway Ave. and the construction of a residence at 5 Hemenway Ave. (A copy of your October 4^th letter is attached hereto and made a part thereof). In the October 4^th letter, you imply that it is the Department's "policy" to ignore work that is in noncompliance with a Superceding Order of Conditions. While the Department does not believe that it is an appropriate use of our resources to respond point-by-point to the allegations and the claims set forth in your letter, suffice to say such statements grossly mischaracterize the Department's position in such matters. The Department takes noncompliance with its regulations and approvals very seriously and exercises enforcement discretion in the manner it deems appropriate. With reference to Hemenway Avenue's Superceding Order of Conditions and the work being conducted pursuant thereto, the Department has reviewed the matter and it is the Department's understanding that any plan changes will be submitted to the Department in accordance with the terms and provisions of the Superceding Order of Conditions. Thank you for your attention to this matter and please do not hesitate to contact me should you have any questions.

Very truly yours, Gail McCarthy, Senior Regional Counsel"

Hemenway Ave.

Bob: We have correspondence from James Sprague, Section Chief, Wetlands Waterways Program, in reference of the Superceding Order of Conditions, DEP File #217-107 Plan Change Request Hemenway Ave. This was addressed to Joseph W. Lynch, Acting Supt. & City Engineer, City of Melrose.

"The Department has received your letter dated November 7, 2000, requesting authorization for a plan change on the above referenced project. The proposed plan modification within the Department's jurisdiction involves approximately 20 ft. of additional Hemenway Ave. roadway improvement in the outer portion of the Buffer Zone similar in nature to that approved by the original Superseding Order of Conditions (SOC). Upon review of the plan submitted with your request, "Proposed Roadway Betterment, Hemenway Ave., Melrose Department of Public Works, Engineering Division, BOA Order 00-062, scale of 1" = 20', December 1999, and accompanying information, it is the Department's opinion pursuant to special condition 16 of the SOC, that the modification is an insignificant change to the plan, does not require the filing of a new Notice of Intent (NOI), does not require an amendment to the SOC and is therefore permitted under the SOC issued for this project by the Department on May 15, 1998. Please note that mention of this authorization for plan change should be included in any future request to the Department for a Certificate of Compliance for the project.

Very truly yours, James A. Sprague, Section Chief Wetlands & Waterways Program."

David: As a result of that, did you lift the Cease & Desist Order?

Bob: I got a call from Joe Lynch at that time and the Cease & Desist Order was lifted according to the directions from this commission. DEP has accepted the project with the extension of the roadway with the information that was submitted to them, the plans and accompanying information at that time. They had this down for approval and the work continued accordingly. I believe the curbing is in, and I believe by next week the asphalt will be put down. That was the schedule I heard as of a couple of days ago. That can always change. I made a site visit to the area to look at the water coming off the hill. It does bank to the left, stays with the curb, makes a beeline towards the catch basins at the other end of the street, and even though the catch basins are sealed or steel-plated on the top, the water was seeping around it and going into the pipes, going down the basin and out, you could hear it moving to the pipes underground and moving out towards the swale. The other swale that we are talking about at the other end of Hemingway Ave. is now blocked, the curbs must be at least 6-8 inches above the roadway. They are filled to a certain extent. All water is diverted to the two basins at this time. The plates on the metal basins will be removed and the grates will be put in, and I believe they have their filters on and it is standard, and the swale will do any filtering of any other nutrients or materials during storms.

Bob: The request for determination on the roadway is a mute at this point, basically because of the November 8 letter from DEP. That will close this particular request for determination. The second letter for request of determination of applicability, the filling in of a swale that exists on the northeastern side of Lot 4 of 3 Hemenway Ave., and otherwise placing filling of the above mentioned property so as to raise the elevation thereof. This swale was placed there without seeking review by Melrose Conservation Commission, as the result said filling water no longer would drain over the former course towards the wetlands. With the new development with the DEP acceptance of this roadway and the blocking of the present swale, do we wish to continue this discussion.

David: I think there are two separate issues, that is a request for determination of applicability, which is yes it is a wetland, and no it is not.

Nancy: Or whether the work is significant to a wetland. We still have a negative binding such that we don't feel that the work is going to any wetlands.

David: The granite curbing now goes all the way across and would redirect any water that used to flow between Mr. Dantona and Mr. Petrella's properties.

Bob: That is correct, and while I was at this site visit Monday during curbing operation, I also stopped by Mr. Dantona's property to look at the basin and the pipe that was showing at the edge of the wetlands, so catching any water coming off that swale, but that is all past now because there will be no water approaching any of the properties at this point. It is all heading towards two basins at the other end of the street. I will say there was some pooling of water on the street, but that is because the road was uneven and there were holes during the construction process itself, so there was water pooling on the street at different locations, but there was no major pool of water except for puddles that were pooling at that point. The rain was coming down pretty heavy.

Peter: And it goes from the catch basins to the wetland?

Bob: You could hear it going underground to the pipes and heading out the swale towards the wetland.

David: The swale you are talking about, the catch basin put it into the swale between Mr. Senier's property and Mr. Petrella's property?

Bob: That is correct. It goes with the original basins I believe in the plan that were put together when Mr. Senier submitted the plans in 1998/99.

David: One more question. My assumption is since you said they put the base layer of the pavement down, they must have moved the pole. Is that out of the road now?

Mr. Petrella: That is not removed.

David: Did they pave around it?

Mr. Petrella: You are talking about the one that is way in the road? That is still sitting there. They did pave around it.

Bob: My understanding is that the crews have been notified and are coordinating between the power company and the telephone company so they would both be there. That pole still sits there.

Bob: What would you like to do with this particular determination of applicability?

Nancy: Let's do the easy one first. I move that regarding Hemingway Ave., the first request for determination of applicability that you mentioned Bob, I move that we find a negative determination applicability based on the information you presented to us tonight on behalf of the DEP and that this street is in fact under a Superceding Order of Conditions that is in the DEP hands.

David: I second it, but the only question I have is it appropriate to do a negative determination because there is Superceding Order of Conditions, or do a positive and say that no further filings are required as a result of this Superceding Order of Conditions.

Paul: I think the latter because the Wetlands Protection Act certainly is applicable to that work. It just doesn't fall under our jurisdiction because of the Superceding Order of Conditions.

Nancy: I think we need to look at the paperwork, the language. I just don't want to give a positive determination and then require another notice of intent on something that we have gone over so many times.

Paul: It is whether the law applies to a particular area in project.

David: In the past we have given a positive determination and said no notice of intent was required because of such and such.

Bob leaves to look up the wording in the files.

Bob returns.

Bob: To bring you back to the determination of applicability, a positive determination "no work within the jurisdiction of the Wetlands Protection may proceed until a final Order of Conditions following submittal of a notice of intent or abbreviated notice of intent has been received from the issuing authority, Conservation Commission, DEP, etc." A negative determination "no further action under the Wetlands Protection is required by the applicant. However, if the department is requested to issue a superceding determination of applicability, work may not proceed on this project unless the department fails to act on such a request within 35 days of the date requested is postmarked for certified mail or hand delivered to the department. Work may then proceed at the owner's risk only upon notice from the department and to the Conservation Commission. Requirements for request for superceding determinations are listed at the end of this document."

David: It sounds like a positive determination with a footnote that says a superceding order of conditions, and in its effect that we don't need to have an additional filing.

Paul: May I read another section here. "Small projects in the buffer zone may not have an adverse effect on resource areas or erosion control measures are taken. A negative determination of applicability may be issued with conditions in cases such as this where it is obvious that compliance with simple conditions will protect the resource areas, so based on this ".......

Nancy: It can still be under our jurisdiction, but we can have a negative finding. That is why I first thought negative finding.

Paul: The standard set out in Section 10.02 of regulations is that the Commission determine whether, in its JUDGEMENT, the activity in the buffer zone "will alter" the resource areas.

David: I personally don't care which of the two ways we do it, as long as it is not done in a way that implies that this is not a buffer zone to have someone come back in 5 years and say no, you can't say that.

Nancy: It is a determination of applicability to the work that is proposed or that has occurred.

Bob: There is a section under the negative determination "the work described in the request is within an area subject to protection under the act but will not remove, dredge or alter that area, therefore said work does not require the filing of a notice of intent.

David: It is altering an area and it is pretty substantial, but DEP says it is okay.

Peter: DEP has already determined that the act applies because they set conditions, so conditions precedent they had to determine that the act applies, so a higher authority has already determined that the act applies and they have set their conditions, so I think we almost pass, we demure to a higher authority here.

David: And actually phrase it a little bit differently, it was us who said that the act applies there, and then DEP as a result of an appeal, changed the Order of Conditions we placed on the project. But either way, a higher authority has said this is how it is going to be.

Bob: Specifically, they requested the swale between properties. Instead of a regular pipe going directly from the basins to the wetlands area, they requested the swale be put in and the superceding order.

Nancy: I still stick with my expressed thought that it is a negative determination with the condition that they must continue to adhere to the DEP Superceding Order of Conditions or any changes subsequent to that Superceding Order of Conditions.

Bob: Let me read you another section of negative determination. "The area described in the request is subject to protection under the act since the work described therein meets the requirement for the following exemption as specified in the act and the regulations. No notice of intent is required." It says "site applicable statutory or regulatory provisions".

Nancy: So that is where we could put our qualifier regarding the superceding order.

Bob: The exempt activity is basically the request of the November 8, 2000 letter from DEP approving the request. In view of the negative determination with selection #5, the area described in the request is subject to protection under the act since the work described therein meets the requirements for the following exemption as specified in the act and regulations. No notice of intent is required. The exempt activity is the approval by DEP for this project reference November 8, 2000 letter.

Nancy: I agree, I just wish it would say no new notice of intent is required. It is not perfect, but it does meet the intent of what I was trying to say as long as we are referring to the DEP and their superceding order.

Voted: In view of the negative determination with selection #5, the area described in the request is subject to protection under the act since the work described therein meets the requirements for the following exemption as specified in the act and regulations. No Notice of Intent is required. The exempt activity is the approval by DEP for this project reference November 8, 2000 letter.

Bob: The second determination of applicability is the question concerning the filling in of the swale that exists on the northeastern side of Lot #4. The water no longer drains over this former course towards the wetlands.

David: The current water flow then is the result of DEP's decision.

Bob: Right now it is basically a permanent fixture. The water does not flow into the swale.

David: It is in the 6 inch dam that blocks it now.

Bob: That is right, 6-8 inch where the final grade is. What are your comments? Do I hear a motion for negative determination or positive determination?

Nancy: I would think another notice of intent is required now that the water is not going that way anymore.

Bob: That swale that is on that property doesn't exist any more because of the previous determination from DEP's superceding order has actually blocked that particular exit of water.

David: What makes it real interesting to me, I note the reason why the wall was put in there is to stop the erosion from the water coming down and the curb that is put in there now made it so that the wall wouldn't be needed now.

Voted: to open this meeting up to the public concerning the request of determination of applicability for the filling of swale that existed on the northeastern side of Lot 4 which is 3 Hemenway Ave., and otherwise placing fill on the aforementioned property so as to raise the elevation thereof. The fill was placed on their land without seeking review by the Melrose Conservation Commission, and as results of its filling, water no longer could drain over its former course towards the wetlands.

Bob: Does anyone wish to speak about this?

Peter: Before we open this up to the public, do we find as a fact here or just determine the law. Is that an established thing? #1 that fill was put on land, and #2 it changes the force. I would call this assuming facts, not an evidence, is what we would call it in law. It is a conclusory statement. #1 the request for determination of applicability. It answers its own questions. #1 the fill was put on the land, and #2 that fill changed the flow, it certainly doesn't change it anymore because of the reveal on the curb stone, but are we going ahead and have a discussion before we even know if that, in fact, did happen, those two points.

Nancy: I think that is what the next step would be.

David: I don't think that particular is going to be addressed tonight. I don't think there is anyone here that would debate whether or not there was fill added there. There may be a debate as to how it changed or didn't change the flow of water.

Anthony Dantona, 3 Maple Terrace: The wall is actually on my property. We did bring up the wall to the existing grade on the Petrella's lot, but as far as the fill, it was a vacuum for the wall and to the dirt. To accommodate the wall, the wall would topple over. It is a stone wall, not a permanent wall, it is a block wall. As far as the water changing route, it does not and it really didn't then. I believe there is video tape and everything else. What changes the route on the water was just natural hydrostatic erosion on the road that wasn't finished. You would get a pocket somewhere, the water would go down, puddle up where there was work done at one time doing the water main, it would be a puddle in the road. I still took a great deal of water down over my property. I believe Mr. Boisselle was there during some floods and he saw it. No great deal of water was ever deflected and now with the curbing as the new point anyway, now the wall is there basically as an erosion barrier. It is a very expensive attractive solid wall that is used on highways.

William Rose, 4 Hemenway Ave.: I think there is some history here that is also lacking and it begins over a year ago when it was first brought to the attention of this Conservation Commission that fill had brought in. This is long before the street, after the fact. I think in hindsight if we just look at a very short period of time going back from here, back a few months. Then you can say well, yes the street solved the problem and it seems like that is what I am hearing. I am hearing well now that there is a 7 in. impervious reveal in place, that it is a non-issue. The term was used as a new point. Well, it could very well be now, but I submit that when the fill was brought in, it was brought in without review of the Conservation Commission which appears to be in violation of some kind of statue, some kind of regulation, by and of itself, and I believe that is the issue. Was fill brought in without the review of the Conservation Commission? Now what the condition is today, I submit has nothing to do with what happened well over a year ago. Another question I have is why did it take coming to this point for the commission to address this issue? It wasn't addressed over a year ago when it was first brought up. It was kind of deferred to the Building Commissioner and the Building Commissioner sent out a letter requesting a document showing the new elevations and then the matter was dropped, and it has been languishing for over a year. So I guess the step was taken to get an answer, should somebody have come before this commission before they put that fill in and should the commission have reviewed that given the circumstance that there was water coming down Ireson Court, coming and gathering on Maple Terrace and then going back into wetlands through that swale. I believe that is the question before this commission. I think it has nothing to do with the street that is in there. I also submit that the street being put in, is not a consequence of this, but it was the other way around. Yes, the street kind of made the issue go away, but I throw the question out would granite curbing had been required had that swale been deemed as being necessary to be maintained over a year ago. Had the proper drainage been put in on Maple Terrace to capture the water that is coming down there, which by the way is not in the drainage calculations of your prior subject that you didn't open up for public discussion. The drainage calculations on that street do not include the water coming down Maple Terrace, Ireson Court and all the wetlands on top of Irseon Court. I have a copy of the drainage cals here where the engineer that did the study states that the water comes down the street and then goes across lawns and into wetlands and in his calculations he only calculates the new construction, so I question whether or not that information was made available to DEP and was part of the evidence that DEP looked at in making their determination that the difference is insignificant. I will tell you right now we had a storm last week, and not this light one we had a couple of days ago, and there was a significant amount of water coming down that hill and going down one side of the street, and my concern once again is that the 12 inch pipe that connects the two drains is inadequate for a 50 year storm, let alone a 100 year storm, given that a majority of the water is going to be coming down on one side of the street, having to be forced through that one 12 inch pipe to make its way to the other storm drain and eventually into the wetlands. I just don't see how one 12 inch pipe is going to accommodate all the water that is coming down from all that resource area up on the hill. Again, the calculation did not include all that water. I am just asking the commission to take that into consideration and that is what I have asked since day one. I have been making the point that the 12 inch pipe, I believe, is inadequate.

David: Unfortunately, as a result of a letter received from DEP, it is out of our jurisdiction.

Mr. Rose: I understand that.

David: I would like to ask a question, something that you said, maybe I misunderstood, it seemed to contradict what your request for determination says, and that is listening to what Bob read, it sounds like you are asking us for some action to be taken to deal with the fact that in your opinion, I am not saying you're not correct, the water that used to go down the swale is now redirected and eventually ends up somewhere further down Maple Terrace, and I make the point that is being made here as a result of Hemenway Ave, as a result of granite curbing, that is a new point. What I am asking is what would you hope for an outcome? I mean we can say theoretically, yes it was illegally filled, but it is not really going to change what is happening as a result of the granite curbing, so what is it you are hoping the commission can do or will do?

Mr. Datona: I have the same question. I really don't understand what is going on. I don't see any videos, I don't see any proof by their assumptions. Some of them are right, some of them are stretched a little bit, but as far as evidence, before you are judge guilty you have to have some kind of evidence.

Bob: In the aspects of evidence, there has been site visits, photographs, videos and so forth taken, times that I have been there and water is going through the swale, as other times water was going through the swale and down the street, as the road started deteriorating, the water now started moving more to the left instead of to the down swale, it basically wasn't the swale that was being filled, it was the roadway that was falling apart that was blocking the water and changing the status of the water flow down the street and down the swale. Maybe during longer storms, we had sheets of water flowing down, it would overflow the poles in the street or just move to the swale or just move to the left, but up to this past summer on site visits to Hemenway Ave., water was flowing down, pictures were taken, there was question concerning the berm, etc. The berm wasn't working because the water was going around the berm and still going down the swale and still parking in front of the driveway of 3 Hemenway Ave. on Lot #4, so the concern of water flow being stopped, the water just changed, the area around the swale changed, the area in front of the swale of the roadway changed also and the water was diverting everywhere that it could. It was taking the easiest route, hits the hole, takes the left or goes over and down the swale to a point. There is a lot of evidence showing that the water was going, was not going and the water just split. Right now what I have seen so far is that the water is coming off the hill, taking a left and making a beeline towards the two basins at the end of Hemenway Ave. The material that Mr. Senier's plan show, that DEP showed upon view of it, was specifically I believe the engineer looked at the concept and that he did not take that into consideration, basically because he was assuming that the basin would take the water coming off the hill and the main portion of the water that Mr. Senier's problem involved was the two conduits going under property, coming off the stream at that point, and that was basically the main part of the water shed that they were trying to concentrate on in getting that rain cals. It may be true to a point that they did not consider the water coming off the hill, basically because it is going through the swale and going towards the basins that were in the plan for Mr. Senier at that point. The main effort was to get the water under the street from the pond behind Mr. Rose which was flooding at that point because of the problems that were there, that relieved the Senier's plan to put the conduits through the property to relieve the problem behind Mr. Rose and I don't think you have any flooding at this point. The water is flowing quite heavily through the point and the pond inspection at Mr. Senier's property, the water is flowing through that. Maintenance of the two drains may have to be maintained to keep those openings open so it doesn't block up and flood the street or flood your backyard. The effort was there to take as much water as possible and move it to the wetlands one way or the other, going to the swale or going down street to the catch basins and out through the required swale that was precedent by DEP at that point between Lots 3 and 5.

Mr. Datona: There is another catch basin right at the corner of Maple and Hemenway.

David: Where is the outlet for that catch basin?

Mr. Datona: It goes down off my property to a 12 inch pipe to a riff raff that goes to another swale down in between my lawn and Mr. Cefalo's lawn.

Richard Donovan, 2 Hemenway Ave.: This water problem started somewhere around five years ago when the extension of Maple Terrace between Ireson Road and the Malden line was still then, that diverted that water at that time down Maple Terrace onto Hemenway Ave., and that has been a contention that has been arguing since that time with letters to the Conservation Commission and to the Building Dept. It is just a problem that has been ongoing and it is accumulating and finally ended up that the water would go down into Lot 4, now 3 Hemenway Ave. Eventually that was blocked up, and there was drainage put in, but now that drainage is blocked, and we have a pool of water in front of my house right at the beginning of Hemenway Ave., and that pool of water just sits there and will sit there all winter and is there during the summer, but at least it dries up and the water flows. What you are going to have now as you have had before? You are going to have a big ice patch right in that intersection, and Mr. Senier is not going to be able to get out of that street.

Bob: Is that pool of water still there over the past storms?

Mr. Donovan: Yes, it is still there.

James Petrella, 3 Hemenway: It always seems to come after the rain goes away, and all of a sudden it appears out of nowhere.

Mr. Donovan: What happened back in 1995 was all that water used to go down Maple Terrace and go into that stream that runs behind my home and Bill's home, and that water was diverted down to Hemenway Ave., and what somebody has to do, which I have been harping on for five years, is to open that road back up, open the drainage back up and allow that water to flow where it flowed before.

Bob: But that water upon inspection last Monday was coming from two houses up, almost near the wall.

Mr. Datona: When he says Maple Terrace, he means the dirt road.

Mr. Petrella: Maple Terrace, the extension.

Bob: That is not where the water is coming from. The water is coming up from the extension. The reason it has been diverted because the road has been deteriorated to such a point that there are holes and the water is diverting.

Mr. Donovan: That was built up 4 ft. since its original elevation.

Bob: I am not talking about the dirt road, I am talking about the asphalt that goes up on the hill. On observation Monday, the water was coming out from the roadway about 20 ft. from the dirt road, it was coming down the hill and takes a turn and comes down Maple and down Hemenway.

Mr. Rose: The water used to come down Ireson Court, a couple of houses up, down Ireson Ct. Coming down the hill the water would turn left down the dirt road portion of Maple Terrace and it used to enter behind our properties and into that resource area that is in the back. What happened five or six years ago was that was built up such that the water was effectively dammed from going down that path, and now what the water does it continues all the way down the paved portion of Maple Terrace and then it turns left onto Hemenway and that is what caused the erosion to the Petrella and the Dantona property, all that extra water.

David: I think if I remember the fill you are talking about was stuff that mysteriously appeared that the city said we didn't do it, then we just said we didn't do it, but it is there.

Mr. Donovan: That fill was gotten from the city yard, it was brought up to that location by Greenwood Construction Co. and it was left there overnight, and the following day they had out an excavator that smoothed that out and set up the road and work continued throughout that weekend, and I was up there at city hall, down at the highway dept., down at the police station, I was arguing that there is no permit, there is no trained construction person there, there was nobody in there conducting any type of drainage calculations, and the road was put there and when I went down to the highway dept. I was told too bad, we approved that. Well nobody approved it except for saying okay, do what you want to do and that began the problem. We had drainage problems there anyway, but that began the big problem of the large amounts of water coming down and deteriorating Hemenway Ave. It is not so much the heavy equipment that went off of that road to build these other homes that are there now, but had to do with the roadway freezing over, cracking up the asphalt and then of course you had the heavy equipment coming in. They had everything else coming down there and that is what broke up this roadway, and now somewhere along the line the drainage was taken away and now you have built another drainage at the end of the roadway and you just have a roadway that is an ice skating rink. It stays basically at that intersection, but now where it used to flow down into the swale at Lot #4, now it has come back over to our property, so I am not only being flooded by the elevation of Maple Terrace who is in back of my property, now I have water on the other side, so it is flooding both our properties out and the water is not draining. It was a problem for me and then it became a problem for Bill, and now with the curbing it has become a problem for the whole neighborhood. I called the department ten times last winter just for the icing problem, and they are going to get ten more calls, and it won't be just from me, it will be from the other neighbors because there is no drainage on that street.

Bob: But the water is draining towards the two basins and heading out towards the wetland at this point. On personal observations of the past two storms, the water is coming off that hill, taking a left in front of your house and making a beeline towards that drain which is sealed, but it was making its way into the drains and out to the wetlands.

Mr. Donovan: It had to travel the 200 ft. to get there, and as it travels that 200 ft. you have little dams that build up on the roadway like it always does. Yours or anybody else's personal observation isn't going to matter to anybody that lives there that has to drive through that ice and it just takes up and fills whole new dams and freezes over.

Mr. Rose: From those of us on our side of the street unfortunately, our houses being the age that they are, the entrances to our houses are walkways from the street to our houses, unlike the newer houses that were built where the entrances are from their driveway, so what we have to do now is leave our vehicles in the street and then we are going to have people that are going to be walking over ice conditions because the water has been redirected to our side of the street and that water is going to be constantly running all winter and constantly freezing, so now we have a safety condition on our side of the street because that is going to be freezing during the winter time so people are going to be constantly walking across ice and there are going to be ice dams at the mouth of the street until it gets resolved what happened at the top of the hill, until the water is sent back to its original path. Now I go back to the question that I was asked, I would say there is two parts. What I would ask the commission is for a determination of whether the fill action should have required a notice and that is the determination that I would be asking for, should the commission have been notified prior to the fill going in and should it have been reviewed. Now insofar as the 2^nd part of your question, what type of action would I ask the commission to take, I leave that up to the commission. You are looking at it with the situation that we have now, the situation that was in the past, whatever you do is what you do. You know what is within your jurisdiction to do and what makes sense to the neighborhood. I just leave that in your hands, but I would ask that a determination be made as to whether or not, given the laws that are in place and given conservation regulations that are in place, my question is should the commission have been notified, should a notice of intent been filed prior to the filling of the land, prior to the lesion of the swale.

Mr. Dantona: Mr. Boisselle was aware that the wall was being built.

Bob: Right, it shows in the plans.

Mr. Petrella: I am not an engineer. I have been to city hall, I have called, I have talked to Mr. Lynch and Mr. Gregorrio. I just kept taking on more water and more water, and then we lost swale outside our property, but it seems to me the solution is somehow to get the city to help us out and put drain up on the corner of Mr. Donovan's property that would catch any overflow. That would only seem to make sense to me, then the water would catch on his side and it would flow underneath my property which it naturally does. I put a sump pump in my house and when it goes off it tells me there is a lot of water underneath my property. That seems to be the only solution that I could think of. I understand the person that lives down at the Maple Extension couldn't get to his property. I believe the city was just trying to help him because you can hardly get a regular small truck plow, let alone a city truck plow to get down there. I think the city was trying to rectify a problem for that residence, but they caused a problem for the residents on Hemenway Way, not realizing that was going to happen.

Mr. Rose: To Mr. Petrella's plaint, two words, I agree. The installation of a correct drain probably with some type of aggressive grading towards the culvert that would capture the water and force the water down, rather than the water running over on the hillside of Maple Terrace, that would capture that water and then somehow direct it back to the wetlands. It is my belief that makes a lot of these issues evaporate. Again, had there been a review of the fill of that land, Maple Terrace, the direct road portion of it, I believe the Conservation Committee would have come up with some type of suggestion of that matter, and had there been a review of the street right down the line, had these reviews occurred, I believe that something like that could have come up and all of this could have been avoided.

David: Had it been in our jurisdiction one of the things that I said at the last meeting that I would recommend that the city do is put drains, get some kind of an easement from the two of you to put pipe underneath it.

Mr. Dantona: We were told that they couldn't. I talked until I was blue in the face, told them about the ice dams.

Mr. Petrella: They wouldn't even let us put drainage. We wanted to pay for it ourselves and do it and put one on the corner of Dick's house and one on the corner of Tony's house, but we were told flat out by the city, hey you guys don't know what you are doing, you can't do it. So what do we do with this water problem? Basically, I would like to say to sum up my feelings is that I really believe there is a betterment going on down there. I really believe that before they come and finish the paving to maybe get a couple of drains installed and if we work with Joe Lynch from engineering and John Chenner, I am sure they they have reviewed the street and I think these guys are the pros, we're the people that pay their salaries, so I look to them for the expertise to help us to solve our problem, and the addition of even one drain on the corner of Mr. Donovan's property would relieve a lot of those problems, and then if it does catch up and run off there is the two drains down the end to catch that water.

Bob: Have you worked with our local alderman?

Mr. Petrella: Yes, he has been quite helpful. I think if we made some phone calls we could talk him into it hopefully before the first snow falls.

Mr. Dantona: It is all ledge. They don't want to get into ledge. Once you go up onto Ireson, it is all ledge. Even if a speed bump was put in the right place, it would knock that water down.

Bob: Well, the question would be requesting them to change the topographical area near that Maple Terrace, maybe to divert the water towards the rear in some way to alter the course.

Mr. Dantona: It finds its way down there. I think Jeff comes down and re-routes it with a shovel and some dirt anyway.

David: I think in terms of the water situation that you are talking about right now, the only thing the Conservation Commission may have left in respect to that is jurisdiction after the fact. If the result of the fact that the water doesn't flow between your properties anymore there is damage to the wetland there. You might be able to come in and say the city needs to fix something, but at this point I think beyond the possibility of that there is really nothing we as a commission can do.

Mr. Petrella: Can you maybe request that they do put a drain on Mr. Donovan's property, if possible.

Bob: We could request it, but the actual aspects of it comes through the Aldermanic and Engineering Departments where you have to talk to your local alderman, etc. to push the engineering and to appropriate the money to get that done at that level. We can only recommend. As you are going one way to the alderman we can go from the engineering aspect saying this is the situation that the water be diverted in a different way and maybe the solution is putting something here, something there, to alleviate all the water coming down the street, etc.

Mr. Dantona: Before we leave tonight, do I get a determination on the wall so I can get my Certificate of Compliance.

David: I was going to bring that up after we deal with this issue, because I think to a certain extent how we deal with this would let us lead right into the next.

Voted: to close public comment.

Bob: We have the second determination. How do you want to go with this, as a negative or positive determination concerning the question? The question in this particular request is the filling in of the swale. Should the individual have contacted us, or according to some of the testimony we heard first of all there was a lot erosion going on, the wall was put up and back fill was put in to protect the wall from toppling over. It wasn't a solid wall, it was basically a free standing wall at that point. The swale again was still there and the point that there was water flowing down the swale and as we have gone over this before and all the documentation, etc., the water shifted at different stages was going down the swale, then starting shifting down the roadway, started puddling, the road fell apart and water even went further down the road. Should this be a negative or a positive determination?

Peter: There is a third possibility that this was included with plans so the determination of applicability was in fact, sought, and complied with. If it was on plans that have come before this committee before, then we determined it applied and we set conditions and the conditions were met. If that was stated in a public hearing, then it was....

Mr. Dantona: At a hearing a reference was made to the wall that was there and asked what type I would be putting up and I built the same type of wall that was there, and I believe I showed the commission the literature from the wall manufacturer and Mr. Lynch, I believe actually had hoped that it was the type of wall that was existed at a conservation meeting, so it was acknowledged and on a plan that I submitted for the pool the wall is showed in more detail on the plan that was accepted by the commission.

David: There wasn't an order of conditions that issued to say go ahead and build the wall or a negative of determination saying it is not a problem, because we don't have a record of one.

Peter: It was verbal.

Nancy: So now we have the opportunity to formalize with this request for determination.

Bob: Right now we are trying to select that this is a positive or negative determination concerning the filling in of the swale, and should it have been brought forward at that time. We had discussions concerning the walls have been shown on a number of plans or changes on other neighbor's property and the wall does exist. The wall was put up because of erosion problems, there was backfill that was brought in to do that. Right now there is a positive determination. There was no work within the jurisdiction of the Wetlands Protection Act and it proceeded until a final order of conditions or issues following submittal of a notice of intent has been received from the issuing authority. We have five categories, one of them is the area described on the reference plan as an area subject to the protection, the boundary delineations of the following resource areas described in the reference plan are confirmed as accurate, the boundary and resource areas listed below are not confirmed by this determination, the work described on reference plan and documented within the area subject to protection, and the work described on the referenced plans and documented is within the buffer zone and within area subject to protection under the act. The area and/or work is described on reference plan and is subject to review and approval by the Conservation Commission. #6 in the positive determination, the following area and/or work is subject to a municipal ordinance (that doesn't follow with us), #7 if a notice of intent for the work on the river front area described in reference plan (which does not refer to us). Negative determination: no further action under the Wetlands Protection Act is required by the applicant. However, it if the department is requested to issue the superceding determination of applicability, work may not proceed on this project unless department fails to act on such request within thirty-five days of the request. Work may then proceed at the owner's risk only upon a notice of the department and the Conservation Commission. All this is post work period at this point. The area described in request is not an area subject to protection under the act. The work described is a request within an area subject to protection under the act. The work described in the request is within the buffer zone as defined in the regulations, but will not alter an area subject to protection. The work described in the request is not within an area subject to protection under the act. Therefore said work does not require the filing or notice of intent. #5 in this negative determination in the area as described is subject to protection under the act since the work is described there and meets the requirements of the following exemption. The area and/or work described in the request is not subject to review and approved by the municipality.

Paul: The comment I would have is that in the request of determination applicability, the description of the project has risen there may or may not, based upon what we have heard here as accurately described as the work that had already taken place. As it's arisen there, the project described as filling of the swale such that it would not accept the water into the swale and diverted all the water down the street, and based upon what we have heard here, there may be some dispute as to whether that accurately describes what had occurred. If that does describe the work that had occurred, then I think it would have required a notice of intent and we would need to find a positive determination of applicability. I am at a loss, I think, as to how it should be dealt with, if on the other hand it does not accurately describe the work that had taken place. Then what we have is a request for determination of applicability for a hypothetical project; if it were to take place would stop the flow of water, which again I think would be a positive determination. But should it be linked to the project described here, which is completely moot if the water ends up where it would with what had actually taken place. I think there is a disconnect there. The options that we have don't really address that.

Bob: So at this point what we are saying here in the statement as a result of said filling water no longer could drain over its former course towards the wetlands. It has been viewed a number of times, and documented that the water was still flowing through that particular area of concern, of this particular swale that is written here. So what you are saying at this request for determination that it is sort of hypothetical.

Paul: Well, I will leave it there is a dispute as to what accurately describes what took place there. If water continues to flow into the swale, then that does not accurately describe the work that had taken place in the past, so to say that yes, any project that met that description we would have to find would have a positive determination of applicability because it is in a buffer zone .

Bob: So at this point you are requesting a negative determination because the water was not stopped.

Paul: I think we would need to say any project as described in that request for determination would have been subject to our jurisdiction and would be a positive finding, but at this point nobody is proposing, well at this point the city is proposing a project which prevents the water from going to that swale.

David: My comment was I am confused about what context we want to put this in. We have the context of the year plus when the work was done. At the time we received the request for determination, the city was partly done the work and that refused a cease and desist order, which would affect the way the water flowed, and now we have a granite curb. My confusion is that at the time the work was done, I think if we looked at it and said yes, it is clear the water flows there, we would say it is a positive determination, we need a Notice of Intent. When filing was made, I didn't see it so I can't say what we would have done, but at this point in time, based on some other things we have done, in particular like with the soccer field when they regraded it in the flood plane, said no, you don't need an NOI because you are not materially affecting anything because of the current conditions with the granite curb there, putting the wall and the fill in would not materially affect the wetland, so we might say negative determination or positive with exception and don't require a filing. So I am just confused about what context we want to answer the question.

Paul: If we treat this as a request for determination for the work that was done at the time it was done, then I think that we have a problem that the description project does not accurately reflect the work that was done, so there is a disconnect there. If we treat it as a request based on certain conditions, that is a different story, it is then describing the project which has not been proposed and which is a hypothetical project. I think in either case the area is certainly within our jurisdiction.

David: That is the only part I am clear on, it is definitely within our jurisdiction.

Paul: If there is a hypothetical or a substantial proposal at this point to fill in the area, currently known as the former functioning swale, it would still be in within our jurisdiction and we certainly would be considered about erosion of transported material into the wetlands and whether any hypothetical project to that extent we would want to make a negative or positive determination. I think that is kind of a coin toss. If it were negative, it would certainly have to be a negative condition about erosion. If we are looking at it as what should have been done in the past, and certainly what should have been done in the past is a filing of NOI, but I am not sure that this request of determination gets at that point because the work does not accurately reflect what actually occurred.

Bob: So are we saying we are throwing this particular determination out because of the description.

Paul: We can't do that.

Bob: But the way it is described, it doesn't fit the particular project we are talking about in this particular paragraph. Water was not blocked. Water was seen flowing down the swale.

David: I believe we have pictures of that in the file.

Bob: That is correct. There has been documentation concerning video tapes and other aspects of it. Water was also going down the street too, but again during discussion there was concern of the street's condition and the water was being diverted. Mr. Donovan was talking how the street was getting chopped up and diverted, water was going everywhere. From what you are saying it doesn't reflect the case of filling as a result of filling or water could not longer drain over its former course towards the wetlands. So can we make a determination at all?

Peter: Looking at this issue from a different perspective, the third or fourth rationale for a negative determination of applicability was that work is done, but it does not and I paraphrase here, significantly impact the flow of water to the wetlands area or doesn't affect the wetlands area. That was one of the criterions for a negative determination of applicability from the list that you read.

Bob: Right. #3 indicates that the work described is a request within the buffer zone after finding the regulation, but will not alter an area subject to the protection under the act, therefore said work does not require filing a notice of intent subject to the following conditions, if any.

Peter: Right, and that seems to be what occurred here. It doesn't seem that the flow was interrupted, it doesn't seem that the wetlands were negatively affected by the construction of that wall or the fill that supported that wall. If anything, the wetlands may have been protected from erosion of silt and other refloating soils clogging up the wetlands, so I think we should look at this with a negative determination of applicability, even looking at it retrospectively if we are being asked to give an applicability of determination from the past stated more accurately that we should have a negative determination of applicability here because the work that was done in putting up that free standing wall and the fill supported it did not have an impact on the wetlands or the flow of water to the wetlands. I think there was nothing wrong with doing that work, and then I think tacitly we accepted it when we looked at plans, possibly that is not a hard and fast fact, but there were plans subsequent to that extensively that show the wall in existence, and although we may have not ratified it formally by default, by seeing it there we determined that it was a negative determination of applicability because it did not have the affect of detrimentally effecting the wetland or impeding the flow of water to the wetland, so I don't think there was anything wrong with doing the work and I don't think there is anything wrong with what we did in allowing the plans subsequent to the construction of the wall, and so I think for the reason #3 there should be a negative determination of applicability.

Voted: Approving a negative determination in Article #3 in that particular category which states the work described in the request is within the buffer zone as defined in the regulations, but would not alter an area subject to protection under the act. Therefore said work does not require the filing of a notice of intent subject to the following conditions, if any.

4 in favor; 1 abstained.

Roll Call: Bob Boisselle, yes; Nancy Naslas, yes; Peter Mortimer, yes; David Valade, yes; Paul Locke, abstained.

Bob: At this point the determination of applicability concerning the filling in of the swale at Section #3, there is a negative determination. The work described in the request is within the buffer zone as defined in the regulations and will not alter an area subject to protection under the act. Therefore said work does not require the filing of a notice of intent subject to the following conditions, if any, and there are none.

Voted: to move that we issue a Certificate of Compliance for the pool built at 3 Maple Terrace on the Dantona property.

Bob: We will open to the public on any issue concerning Conservation Commission. Does anyone wish to speak concerning any subject.

No comments.

Bob: Does anyone wish to speak on any other subject.

Mr. Petrella: If we do, in fact, go to the city hall and we try to get a drain installed at the corner, do we need the conservation's permission or is that something the city will automatically do.

Paul: I think since it is covered by the Superceding Order of Conditions, if they are changing the flow of water, we would recommend that they would go back to DEP, certainly not to us, but it would be under DEP's Order of Conditions.

Voted: to adjourn at 10 p.m.

Respectfully submitted,

Nancy Pritchard

Commission Secretary