3. Public Hearings
a) Evergreen Commons LLC
18 Boyd Drive and 5 Brown Avenue
Definitive Subdivision (2017-DEF-01)
WRPD Special Permit (2017-SP-05)
Continued from 11/15/17
Chair Sontag said the working session would examine the Horsley Witten (HW) review results
and recommended conditions. Outstanding issues remained for other boards and commissions.
Director Port distributed a working draft of findings and conditions with the original special
permit attached. The Water & Sewer Commission previously would not comment until a final
plan was available and should be given another opportunity for feedback. CSI’s letter late today
said plans complied with the original OSRD and made additional minor comments. Tonight’s
focus should be on the WRPD SP and incorporating additional conditions to protect the public
water supply. Draft findings and conditions incorporated both the Definitive Subdivision and
WRPD SP decisions. Chair Sontag said the Water & Sewer Commission, per Chair John
Tomasz, agreed that any approval should include items noted in Section B of the December 11,
2017 HW report and all special conditions from the board’s March 1, 2017 SP findings and
conditions for the OSRD.
Attorney Lisa Mead, Mead, Talerman, and Costa, LLC, 30 Green Street, said three issues from
last night’s Conservation Commission meeting required board input: 1) demarcation between
lots and open space; 2) type of monumentation; and 3) signage, both educational and for open
space. She would propose a signage plan for the board’s approval to avoid littering the area with
signs. The quality of the Conservation Restriction (CR) was discussed also. The CR did not
require an Energy and Environmental Affairs (EEA) approval but could not be in perpetuity as
requested by the Conservation Commission, without an EEA sign off. Best efforts would be
made, otherwise, the local Conservation Commission would sign off. Timing for certain things in
the draft decision was important overall. The CR had to be filed before the first building permit
was issued. There was a lot to be done. Open space should not be deeded to the HOA until all
work was done, or before the first building permit was issued. But work needed to continue after
the CR was issued. The Conservation Commission tightened up HOA documents last night. A
plaque in the garage by the door to the house would that the property owner is subject to an
HOA, that there is one landscape contractor, and that there are certain lawn products that are not
permitted for use in the subdivision. Chair Sontag said the board would use the draft documents
as a checklist for issues covered in last night’s Conservation Commission meeting.
Engineer Steve Sawyer, DCI, 68 Pleasant Street, reviewed minor changes on the CR use plan.
The wooded area was not to be disturbed, the ILSF area was added to the open space plan, some
foundations changed, drywells were updated, and typos corrected. Plans had not changed much
since May. He would wait for CSI comments before issuing final Mylars. ‘No Parking’ signs
would be installed, as well as demarcations in the back of lots. Chair Sontag verified with Mr.
Sawyer that three foundations HW identified had been corrected.
Neal Price, senior hydrogeologist, HW, 30 Green Street, concurred with Mr. Sawyer. The ILSF,
SHGW, and pollutant loading potential were all acceptable. He added approval conditions, also
added to HOA documents, regarding mosquitos, pesticides use, and pool water, which could not
be drained into the ground when performing maintenance. The Conservation Commission had
decided against a pool water condition. Jay Billings, Northeast Geoscience (NGI), 97 Walnut
Street, Clinton, explained that backwashing pool filters discharged pool water with chemicals
designed for ingestion and were not too toxic. There were no related WRPD restrictions. Mr.
Price said chlorine reacts with the organic matter in soil to produce restricted compounds that
could get into drinking water. His WPRD condition tried to minimize that effect, but it was a
minor concern relative to the chlorinating process. Members were uncomfortable with the pool
water risk because water entered the system untreated. Julia Godtfredsen, Newburyport
Conservation Administrator, said the commission did not have the benefit of Mr. Price’s
knowledge at their meeting. When it was initially thought pools should not be allowed, Mr.
Billings explained that pool chemicals were benign. The risk of a chemical interaction with the
organic matter in soil was not part of the commission’s review.
Chair Sontag asked if all pool water had to be hauled offsite if the condition was included?
Director Port said yes, pool water was not permitted in the sewer system. Ms. Godtfredsen said
pool draining occurred when backwashing filters or lowering levels at the end of the season.
Both processes released chemicals into the ground. Attorney Mead said a condition, such as
requiring non-chlorine pools, could be added. Ms. Godtfredsen said some filters did not require
backwashing. She would find best practices. Members said blow up pools that came as a kit with
filters and chemicals included were breakable. Attorney Mead said homeowner’s ability to build
in ground pools was hampered by the low percentage of impervious surface that could be added.
Members said that would encourage the use of blow up pools. Director Port said chemicals in
use could change over time. He would not rely on full compliance with a condition that required
homeowner’s to haul substances off site. Attorney Mead said homeowners could not do
numerous things already. Mr. Billings asked Mr. Price if he knew of other towns with similar
pool water and chemical restrictions? A bigger issue was the Water Department’s chlorination. It
seemed unlikely that a pool located 1,000 feet from the well could affect the drinking water. The
condition was overly conservative. Chair Sontag said Mr. Billings was not considering all the
other factors that made the site unique, other than untreated water going into the system. Mr.
Billings said everyone in Zone II should be held to the same standard, including pools on Boyd
Drive and Brown Avenue. The City would be testing for trihalomethanes. Chair Sontag
reiterated the expert opinions that the issue was minor and could be controlled through testing.
Members said if testing found trihalomethanes, it was too late. Attorney Mead showed a satellite
image of several pools on Boyd Drive and two on Brown Avenue, identified the stormwater pipe
that drained untreated into Zone I. She said there was no evidence that restrictions were needed.
Members said the existence of neighboring pools did not mean the same privilege had to be
extended to Evergreen homes. Justifications would not be based on neighboring pools. Many of
the 38 homes could add pools over time. Would that increase the odds for having a problem?
Mustard and black algae in pools were chemically treated. The board could avoid perpetuating
the risk. Each lot’s distance from the well should be evaluated as to risk. Attorney Mead would
work with Mr. Price to develop parameters for revising the pool condition. Mr. Price said
language for two conditions added to the HOA documents implied they were prohibitions for
everyone in a WRPD, rather than conditions for this development only. Attorney Mead would
correct that and said the applicant’s response to the HW report had resolved everything.
Conditions were added for monitoring wetlands and for wetlands to be built and planted in a
manner that ensured plant survival, per the Conservation Commission.
Tom Hughes, Hughes Environmental Consulting, 44 Merrimac Street, responded to conditions in
Section B where conditions scattered throughout the report had all been put into one section.
Well monitoring would be monthly, or more frequently, with or without the condition. He agreed
to over site by a wetland scientist and to replacing dead or dying containerized plants for two
years. The 300 tubelings that provided after-growth for fuller coverage were, like seed, not all
expected to survive and would not be replaced. A requirement that work within the wetland
occur during the winter impeded getting ILSF work done right away. He had only seen gophers
that were hunted by hawks and recommended phasing the disturbance to allow animals a chance
to relocate. He had suggested an alternative to the conditions for working within the resource
areas that were agreed to by HW and the Conservation Commission. The alternative gave him
flexibility and created a stable site. He would not put anything on the slopes that could wash into
the wetlands. The commission wanted signs big enough for homeowners to see. That would
result in fairly large signs. Attorney Mead would accept a condition to submit a signage plan for
approval that addressed language, location, size, and incorporated educational signs. There
would be funding for an annual report by a qualified person on the conservation areas to manage
encroachment issues. Mr. Hughes agreed to the remaining conditions.
Attorney Mead addressed issues on the draft of the Definitive Subdivision and WRPD SP
decision. Sections had broad titles such as ‘Occupancy Permits.’ Some items listed were not
appropriate at the beginning. The applicant was willing to have the City hold a CR to be recorded
when the conservation area was completed or, alternatively, to not record the CR until issuance
of the last occupancy permit. The open space should not be deeded until work on the
conservation area was complete. Chair Sontag asked if the timing issue was only on the CR?
Attorney Mead said no. Timing related to the SP and Definitive Subdivision also. Ms.
Godtfredsen said homes built one-by-one, by a new builder as each home sold, would affect
when the commission needed the ‘as built’ plan. Chip Hall, a development principal, said interim
‘as built’ plans would be used to release the bonding. A certain number of homes would be built
on spec. When sales provided sufficient funding, additional homes would be built. Final ‘as
built’ plans would be held until everything was completed and released for recording.
Members did not want the subdivision division conditions looked at in isolation from the WRPD
conditions. Everything that protected the City’s water supply should be completed before any
home was built, including grading and other similar processes, because of the WRPD. Attorney
Mead agreed and would address that in a sequencing plan. Mr. Hughes said permits needed to be
included in the final pollution prevention plan. Members said the first occupancy permits would
be released when the City was sure the water supply was protected. Attorney Mead said
refinements in the working draft would address that. Easements and deeds in the conditions
under ‘Prior to Release of Lots’ would not get transferred until the very end to avoid insurance
and indemnification issues. Director Port would follow up with the applicant offline to develop a
timeline and return to the board with a marked up version that protected the City.
Attorney Mead said outstanding commission items had all been addressed except the
demarcation on lot’s back corners. Director Port said a physical marker was important for
determining the public right of way, private property, and open space areas. Ms. Godtfredsen
said the commission recommended split rail fences to prevent mowing into the conservation
area. Attorney Mead said residents would not mow their own lawns. One maintenance person
would do everything, including winterizing driveways. Ms. Godtfredsen said no language
expressly prohibited homeowners from performing maintenance. Director Port said the provision
for a single, licensed lawn care professional to establish a unified program for lot maintenance
was on page 12 in the original OSRD SP. Attorney Mead said HW added the provision to the
HOA documents. Director Port said draft conditions concerning the HOA documents addressed
the provision as well. Attorney Mead would add a provision that homeowners could not perform
specific maintenance on their property. Members said the OSRD disallowed privacy fencing
between the front of the house and the street. Attorney Mead said granite bounds were fairly
permanent. A split rail fence was easy to move around. Chair Sontag said yearly monitoring
would catch whether a fence had moved. Members preferred granite bounds. The construction
monitor would catch erroneous mowing. Director Port said CSI would visit the site as needed.
Members asked if there would be weekly reports? Director Port said monitoring was ‘as needed.’
Weekly could be specified. Attorney Mead said all major milestones would be reviewed.
Members noted that Mr. Christiansen’s letter was not typical. A portion of the letter regarding
daily inspections to protect the City’s water supply was read aloud. Should a condition be added
for a representative to be on site full time during infrastructure construction? Mr. Sawyer said it
was unusual for Mr. Christiansen to comment on daily inspections, which was overkill. Chair
Sontag said the letter’s subsequent paragraph explained that Mr. Christiansen was guarding
against past errors of inappropriate fill or something similar, from occurring in the future.
Members accepted weekly monitoring due to the expense of a daily report. Did the commission
require weekly wetlands monitoring? Ms. Godtfredsen said monitoring would be for two years,
but not weekly during construction. A wetlands scientist would oversee construction.
Public comment open.
Peter Hatcher 15 Boyd Drive, asked who maintained the open space if it was deeded to the City?
Attorney Mead said it was not deeded to the City, but was public land. Maintenance was paid for
and performed by the HOA. Mr. Hatcher asked how homes with so many restrictions were
marketable? Director Port said the restrictions necessarily protected the water supply from salts,
chemicals, and landscaping pesticides.
Ann Marie Vega, 21 Boyd Drive, said Cherry Hill’s pool restrictions, that were under fire, were
an example of pool restrictions that could be examined for that was workable or not.
Rick Vega, 21 Boyd Drive, said a pool had to have a fence. Chair Sontag said that was a
different type of fencing than one that delineated the yard from the conservation area.
Public comment closed.
Chair Sontag said there was only part of January to get issues clarified. Members asked if any
experts would be involved in the review? Director Port said yes, by legal counsel as well as the
Public Services Water and Sewer Divisions’ feedback. The Planning Office would finalize
conditions without the Water and Sewer Commission’s feedback, if necessary. Chair Sontag said
the final rough draft should be the only document reviewed by Water and Sewer Commission.
The review would have to wait for their next meeting. Members asked if HW and CSI would
participate in the review? Chair Sontag said HW would participate. Director Port said there was
no need for CSI feedback. He could send CSI the final version. Chair Sontag agreed that CSI
was concerned with stormwater and engineering, whereas the issues under review concerned the
WRPD. Waivers would have to be reviewed as well.
Mary Jo Verde made a motion to continue the Definitive Subdivision and the WRPD Special
Permit public hearing to January 17, 2018. Leah McGavern seconded the motion and all
members voted in favor.