TOWN OF BURLINGTON Conservation Commission

TOWN OF BURLINGTON Conservation Commission MINUTES OF Approved January 26, 2017 Members Present: Chair L. Cohen, Vice-Chair W. Boivin, E. LoTurco, A. McNamara, G. Lima Members Absent: Also Present: K. Melanson, I. Deb Conservation Administrator J. Keeley, Assistant Conservation Administrator H. Charles Lis 1. Call to Order L. Cohen called the meeting to order at 7:02 pm. The Conservation Commission welcomed Ed LoTurco to the Commission. L. Cohen described E. LoTurco s background and experience, and E. LoTurco introduced himself. 2. Citizens Time No one spoke. 3. Approval of Minutes December 8, 2016 The December 8, 2016 Conservation Commission meeting minutes were tabled to the Conservation Commission meeting of January 26, 2016. 4. Request for Extension Order of Conditions 68 Wilmington Road Thomas Murphy DEP #122-517 No one represented the application. J. Keeley explained the project has begun; unfortunately the proponent (applicant) has passed away, and the Order expires this week. Staff reached out to the attorney Thomas Murphy of Shea, Murphy & Gulde and suggested on behalf of the estate that he request an extension. The Conservation Commission had no comment.

2 A MOTION TO ISSUE A THREE (3) YEAR EXTENSION TO THE ORDER OF CONDITIONS FOR 68 WILMINGTON ROAD, DEP #122-517, WAS MADE BY A. MCNAMARA. THE MOTION WAS SECONDED BY W. BOIVIN AND APPROVED (5-0-0). 5a. Request for Certificate of Compliance & Release of Surety 41 Burlington Mall Road Lahey Hospital and Medical Center DEP # 122-538 Engineer Jocelyn Mayer of VHB represented the application. Ms. Mayer updated the Conservation Commission that this project has been completed. J. Keeley commented: Trail along Vine Brook has signage Applicant submitted photos but staff and the Commission have not seen the site recently because: o There is snow on the ground o It costs to park at the site so arrangements need to be made in advance Staff suggests issuing the Certificate of Compliance, and holding the bond until the Conservation Commission can do a site walk in the spring and inspect areas such as the swale, and the trail and signage The Conservation Commission discussed: Improved gravel trail Dedicated parking to use the trail, which is not feasible Removing the poison ivy on the trail Supporting staff recommendations A MOTION TO ISSUE THE CERTIFICATE OF COMPLIANCE FOR THE PROJECT AT 41 BURLINGTON MALL ROAD, DEP #122-538, WAS MADE BY W. BOIVIN. THE MOTION WAS SECONDED BY G. LIMA AND APPROVED (5-0-0). The bond for this project will be held and the Conservation Commission will review this in the spring. 5b. Request for Certificate of Compliance & Release of Surety 68-110 Burlington Mall Road Linear Retail Burlington #1 LLC DEP # 122-548 No one represented the application. H. Charles Lis commented: Staff did not receive written reports; they received emails and phone call updates Stormwater management improvements were constructed (mostly done during the evening hours), and the applicant had a professional engineer on site during construction Site issues: o Gap in fence along Vine Brook with significant potential for erosion into the river

3 Food waste on the Vine Brook side of the fence behind the building Board of Health has been informed, and they will do a follow up site visit Staff recommended issuing the Certificate of Compliance and holding all or a portion of the bond Conservation Commission discussed: The machine pulling out the erosion controls along Vine Brook potentially damaged/removed some of the vegetation Staff noted the dead trees that needed to be removed at the applicant s request Amount of the bond that should be held A MOTION TO ISSUE THE CERTIFICATE OF COMPLIANCE FOR THE PROJECT AT 68-110 BURLINGTON MALL ROAD, DEP # 122-548, WAS MADE BY G. LIMA. THE MOTION WAS SECONDED BY W. BOIVIN AND APPROVED (5-0-0). A MOTION TO RELEASE THE $10,000 BOND WHEN THE TRASH IS PICKED UP, THE FENCE IS REPAIRED AND THE UNSTABLE CONDITIONS ARE RESOLVED WAS MADE BY A. MCNAMARA. THE MOTION WAS SECONDED BY W. BOIVIN, AND APPROVED (5-0-0). 6. Public Hearing Notice of Intent 20 Sandy Brook Road Kirit Shah Construct residential addition DEP # 122-584 Wetlands consultant Leah Basbanes of Basbanes Wetland Consulting represented the application. Ms. Basbanes explained that she flagged the wetlands, and prepared the Notice of Intent. John Noonan engineer did the design work. The proposal is for an addition to the back of the house with a deck and larger front porch. Both additions would be on seven sonotube footings total, and the concrete steps will be replaced with wooden stairs to provide compensatory flood storage. The addition will be within the 40-foot no build zone, closer than the existing house, which is also in that area; applicant is requesting a waiver. DEP had no comment. J. Keeley commented: Staff has not reviewed the wetland delineation because flags were missing Resource areas on site: riverfront area, bordering vegetated wetlands, floodplain Proposed addition is 2.5 feet closer to BVW than the existing house Alternatives analysis will show there is no other feasible place to put this addition Performance standard to improvement the riverfront area o Suggestion to not mow an area and allowing it be converted back to wetlands or buffer zone DEP file number was issued today Roof top runoff mitigation would not be feasible due to the high groundwater The Conservation Commission commented: No existing sump pump on site

4 Black pipe on site is a remnant of an old well The Conservation Commission requested: Plant some vegetation to demarcate the line between the mowed and not mowed areas Increase the buffer to the riverfront area This hearing will continue at the January 26, 2017 Conservation Commission meeting. 7. Discussion Zoning warrant article for January Town Meeting to re-zone the Landlocked Forest parcels from General Industrial (IG) to Open Space (OS) Monte Pearson of 5 Willow Way (TMM precinct 3), Christine Warren (TMM), Jonathan Sachs of 12 Oxbow Lane (TMM precinct 7), and John Iler of 9 Brookside Lane (TMM precinct 6) represented this warrant article. The warrant article representatives explained their rationale for re-zoning the Landlocked Forest: Landlocked Forest is accessible with parking and associated trails It s a natural resource for town Connects with other resource areas in Lexington, Billerica, and Bedford Retain some rural features for the town Re-zoning would ensure the intent of Burlington taking the land by imminent domain is upheld and gives an additional line of defense from development Improves water quality/supply in Burlington and helps with the drought Board of Selectmen want to form a committee to decide the allowed uses of the parcels J. Keeley noted this is Article 97 land, not conservation land. He explained the difference and mentioned other open space areas of Burlington such as Mary Cummings Park and Mill Pond. Conservation Commission commented in support of protecting the Landlocked Forest noting: The land connects to the historical Paint Mine conservation area, where educational groups visit Protects Burlington s water Improves air quality Making global improvements to the environment starts at the local level Provides a home for the animals, that are under the constant threat of displacement; Protection of the wildlife corridors and connections to other open sapces Improves the quality of life for the residents of Burlington BOS explored turning the land into conservation land in the past Helps with flood control Burlington is in good financial shape and this land can be preserved without causing any detrimental affects Public Comment: In favor of re-zoning:

5 Ernest Zabolotny, 33 Paulson Street, TMM precinct 5, noted he is against increasing the population of Burlington by building multifamily homes on these parcels. Paul Raymond, 1 Dorothy Road, member of the Planning Board, noted the low open space percentages in Burlington compared to neighboring communities, and Article 97 is not enough protection. David Miller, 19 Gloria Circle, TMM precinct 4, noted preserving open space is a high priority of the Master Plan Steering Committing, particularly because of drought and contaminated wells. David Webb, 23 Eugene Road, TMM precinct 7, had concerns about the Board of Selectmen, Town Meeting, and Department of Public works voting against this because of the additional land upkeep involved with re-zoning. Rosalie Blum, precinct 4, noted this is a good weapon against the Route 3 pollution from cars. L. Cohen read into the record a draft statement from the Commission in support of the article. See attached. Staff recommended adding language about climate change mitigation, and the connection and benefits to the Mill Pond Reservoir and the Town s drinking water by preserving the land E. Zabolotny requested an electronic version of the draft statement distributed to the Town Meeting Members. A MOTION TO ENDORSE THE ZONING WARRANT ARTICLE FOR JANUARY TOWN MEETING TO RE- ZONE THE LANDLOCKED FOREST PARCELS FROM GENERAL INDUSTRIAL (IG) TO OPEN SPACE (OS) AS AMENDED WAS MADE BY W. BOIVIN. THE MOTION WAS SECONDED BY A. MCNAMARA AND APPROVED (5-0-0). 8. Continued Public Hearing Notice of Intent 63 Third Avenue Nordblom Development Company Replace & relocate electrical transformer DEP # 122-583 Engineer Frank DiPietro of the BSC Group represented the application. Mr. DiPietro updated the Conservation Commission on the outstanding issues from the last hearing: The applicant received the DEP file number. Conservation staff had no comments. The Conservation Commission had no comments. H. Charles Lis reviewed the findings and conditions. A MOTION TO CLOSE THE HEARING FOR THE PROJECT AT 63 THIRD AVENUE, DEP #122-583, WAS MADE BY G. LIMA. THE MOTION WAS SECONDED BY A. MCNAMARA AND APPROVED (5-0-0).

6 A MOTION TO APPROVE THE FINDINGS FOR THE PROJECT AT 63 THIRD AVENUE, DEP #122-583, WAS MADE BY W. BOIVIN. THE MOTION WAS SECONDED BY G. LIMA AND APPROVED (5-0-0). A MOTION TO ISSUE THE ORDER OF CONDITIONS FOR THE PROJECT AT 63 THIRD AVENUE, DEP #122-583, WAS MADE BY A. MCNAMARA. THE MOTION WAS SECONDED BY W. BOIVIN AND APPROVED (5-0-0). A MOTION TO REQUIRE A $5,000 PERFORMANCE BOND FOR THE PROJECT AT 63 THIRD AVENUE, DEP #122-583, WAS MADE BY W. BOIVIN. THE MOTION WAS SECONDED BY G. LIMA AND APPROVED (5-0-0). 9. Public Hearing Notice of Intent 22 Corcoran Road Henry Turnquist Grading & residential addition DEP #122-581 No testimony was taken on this matter This hearing will continue at the January 26, 2016 Conservation Commission meeting. 10. Public Hearing Notice of Intent 2 & 10 Wall Street Rebel Restaurants, Inc. Exterior building modifications DEP #122-582 Engineer Frank DiPietro of the BSC Group represented the application. Mr. DiPietro explained the changes: Two existing catch basins will have hoods added for oil/gas 12 inch straw wattles will be used near the deck Use of permeable pavers for the walkway to the new entrance Landscaping above the brook (11 native shrubs) as an improvement to riverfront area Specific impact to the riverfront area and an alternatives analysis were submitted H. Charles Lis supported these changes, and had no issues. Conservation Commission had no comment. H. Charles Lis reviewed the findings and conditions. A MOTION TO CLOSE THE HEARING FOR THE PROJECT AT 2 & 10 WALL STREET REBEL RESTAURANTS, INC., DEP #122-582, WAS MADE BY G. LIMA. THE MOTION WAS SECONDED BY A. MCNAMARA AND APPROVED (5-0-0). A MOTION TO APPROVE THE FINDINGS FOR THE PROJECT AT 2 & 10 WALL STREET REBEL RESTAURANTS, INC., DEP #122-582, WAS MADE BY W. BOIVIN. THE MOTION WAS SECONDED BY A. MCNAMARA AND APPROVED (5-0-0). A MOTION TO ISSUE THE ORDER OF CONDITIONS FOR THE PROJECT AT 2 & 10 WALL STREET REBEL RESTAURANTS, INC., DEP #122-582, WAS MADE BY A. MCNAMARA. THE MOTION WAS SECONDED BY W. BOIVIN AND APPROVED (5-0-0).

7 A MOTION TO REQUIRE A $10,000 PERFORMANCE BOND FOR THE PROJECT AT 2 & 10 WALL STREET REBEL RESTAURANTS, INC., DEP #122-582, WAS MADE BY W. BOIVIN. THE MOTION WAS SECONDED BY E. LOTURCO AND APPROVED (5-0-0). 11. Continued Public Hearing Notice of Intent (WPA only) 10 & 20 Corporate Drive Burlington Centre Twenty Corporation c/o The Davis Companies Construct multi-unit residential buildings with walkways, courtyards and utilities DEP # 122-576 Attorney Robert Buckley of Riemer and Braunstein, LLP, Developer Christopher Chandor, Jr of the Davis Company, and VP of Land Development Rick Alfonso from Tetra Tech represented the application. E. LoTurco recused himself from the discussion because it began well before his appointment to the Commission. Mr. Buckley updated the Conservation Commission: Plans were revised to reflect the suggestions of the Conservation Commission staff and the wildlife consultant Board of Health approved the plan with conditions Zoning Board of Appeals will hear this project on Tuesday, January 17 at 7:30pm The plan includes: o Recreation area scaled back and no access road for maintenance o Vegetation added up the slope and below the stone wall for vernal pool animals o Applicant is open to a conservation restriction o Signage on Corporate Drive to bring awareness to the vernal pool o Enhancements to Corporate Drive curbing for vernal pool animals crossing o No access out the back of the building o Removing pavement to create a replication area o Recreation area will be a higher grade to prevent migration into the wetlands There will be fund of about $600,000 for gap units which will go the individuals who make too much for affordable housing but not enough to afford the market rate J. Keeley commented: The changes are summarized in the cover letter the applicant submitted Sloped curbing was added to assist vernal pool creatures with crossing o Applicant noted a culvert under Corporate Drive would not work in this area Staff support the conservation restriction for the vernal pool and surrounding area The staking changed since the last Conservation Commission visit Conservation Commission commented: Ways to prevent vernal pool animals from falling into the catch basins Creating educational signs explaining the importance of vernal pools Ways of making the contractor aware of the vernal pool restrictions with construction fences; environmental monitoring during construction o Applicant agreed to include a construction fence and have the Board of Appeals add that to their conditions Preventing light migration into the vernal pool

8 G. Lima left the meeting at 9:10pm. Mr. Buckley requested the Conservation Commission keep the hearing open, in case changes are made. L. Cohen read into the record the letter to the Zoning Board of Appeals from the Conservation Commission. See attached. Staff recommended adding the amphibian species L. Cohen took an informal vote of the members in favor of the letter, and it was unanimous (3-0- 1; E. LoTurco abstained). This hearing will continue at the March 9, 2017 Conservation Commission meeting. 12. Administration a. Violations/Enforcements: No new updates b. Planning Board Comments: None c. Subcommittee & Staff Reports: None d. Upcoming Meeting Schedule: January 26, 2017 & February 9, 2017 e. Other Business: Town Meeting Town Meeting - Monday, January 23, 2017 - Burlington High School Auditorium at 7:30 pm Items of interest to the Conservation Commission are: Change to the bylaw to allow Town Meeting members to serve on other volunteer Boards and Committees Re-zoning Landlocked Forest to open space Board of Appeals Zoning Board of Appeals - Tuesday, January 17 Main Hearing Room at 7:30 pm 13. Adjourn A MOTION TO CLOSE THE JANUARY 12, 2017 CONSERVATION COMMISSION MEETING WAS MADE BY W. BOIVIN AT 9:29 PM. THE MOTION WAS SECONDED BY A. MCNAMARA AND APPROVED (4-0- 0). Minutes respectfully submitted by: Noelle Judd, Recording Clerk

Statement to Town Meeting from Burlington Conservation Commission Open Space Zoning Article (January 23, 2017) At its January 12 th meeting, the Conservation Commission discussed the Landlocked Forest (LLF) and the stated purpose for its acquisition, namely preserving open space and the protecting the Town s Watershed and Aquifer Resource District. The Landlocked Forest is approximately 70 percent in the Water Resources Overlay District. The purpose of these Districts is to protect our Town s ground water supply and contributing surface water recharge areas. An additional stated purpose in Section 8.3.1 of our Zoning Bylaws is that these Districts are for conserving our natural resources. The Conservation Commission is specifically charged with protecting Burlington s natural resources as specified in the originating 1958 Conservation Commission Law. The Conservation Commission sees value in the varied and undisturbed topography consisting of substantial wooded areas, meadows, rolling hills, streams, vegetated wetlands, and swamp areas. We see value in the major stream that bisects the land and runs under Route 3 and into Northwest Park. This stream flows into our Vine Brook well field, and eventually into the Shawsheen River, the source for our Mill Pond Reservoir. This stream is fed from topography on both sides of the stream, making up 65 percent of the parcel. The Conservation Commission sees wildlife habitat value in the wetlands and associated uplands, including four certified vernal pools and the surrounding wooded areas that amphibians also use as their habitat. The LLF has been rated by the Massachusetts Department of Environmental Protection (Mass DEP) as a Massachusetts Habitat of Potential Regional and Statewide Importance. The Conservation Commission sees value in the numerous trails used by walkers and runners, as well as uses of wildlife photography, snowshoeing and mountain biking. The LLF improves Burlington s quality of life, providing open space for outdoor recreation that cannot be replicated elsewhere in town. The ongoing development in town increases population density and potential pollutant loads, magnifying the importance of protecting any and all remaining open space parcels for habitat value, water quality value, air purification value and climate change mitigation purposes. Our collective responsibilities are to preserve and protect the LLF for our future generations. Open space is intrinsically valuable. Open space contributes significantly to the character of our Town. The Conservation Commission strongly endorses the rezoning request before you. We hope that you too see the value of the Landlocked Forest. The Burlington Conservation Commission asks for your support of this article.

Corporate Drive 40B Project Statement from Conservation Commission to Zoning Board of Appeals (January 17, 2017) The major natural resource of concern relating to Corporate Drive 40 B project is a vernal pool. Vernal pools are temporary ponds that usually confine water for a minimum of two continuous spring months but lack vertebrate predators such as adult fish. These ponds provide habitat for numerous amphibians (e.g., spotted and other salamanders, wood frogs), reptiles (e.g., spotted turtles and painted turtles), and a number of other animals (e.g., fairy shrimp). Some of these species are dependent on vernal pools for a portion of their life cycle. Many vernal pool species spend over 90% of their lifecycle in upland forest. Our local Wetlands Protection bylaw, Article XIV, is intended to be the same or stricter than the regulations under the State s Wetlands Protection Act. In this case, the resource area vernal pools, as defined in the Conservation Commission s bylaws and regulations, includes the vernal pool and all vegetated habitats within 100 feet of the seasonal high water of said pools. The Commission presumes that both the inundated and adjacent upland areas provide essential habitat functions. Through our local regulations, the Commission asserts project review jurisdiction for an additional 100 foot buffer zone to the vernal pool. The Commission presumes that the buffer zone is important to the protection of resource areas because activities undertaken in close proximity have a high likelihood of adverse impact, either immediately, as a consequence of construction, or over time, as a consequence of daily operation or existence of the activities. These adverse impacts from construction and use can include erosion, siltation, loss of groundwater recharge, poor water quality, and loss of wildlife habitat. The Commission sometimes waives specific design specifications, performance standards, or other requirements set forth in its regulations. In order to grant a waiver, the Commission must find that there are no reasonable conditions or alternatives that would allow the proposed activity to proceed in compliance with said regulations; that avoidance, minimization and mitigation have been employed to the maximum extent feasible; and that the waiver is necessary to accommodate an overriding public interest or to avoid a decision that so restricts the use of the property as to constitute an unconstitutional taking without compensation. The proposed Corporate Drive 40B project site is bordered by a wall on the east, Corporate Drive on the west, a parking lot on the south and a forested upland to the east with a road further out. The forested upland contains a large well-documented vernal pool and bordering vegetated wetlands. At a public meeting of the Conservation Commission, two concerns relative to conservation surfaced. The first concern is that the building is located within a 40 foot no build zone as defined by our wetlands regulations. The edge of the building is located 36 feet from the bordering vegetated wetlands line on the south side. This issue was discussed at a Conservation Commission meeting. The applicant has chosen to keep the building in this location. If this project was destined for a decision under our bylaw, the Commission would need to vote to issue a waiver for this condition in order for the project to be approved. The Commission has not made a formal determination of whether this project would qualify for a waiver under the bylaw to approve the 4 foot intrusion into the no build zone. 1

The proposed 40B project is proposed to have an outdoor patio area significantly within the 100 foot buffer zone on the east side of the vernal pool. After discussions at a public meeting, the applicant modified their proposal to significantly reduce the area of the patio within the buffer zone, and added additional plantings in the vicinity. Given the project as now proposed, the key question for the Commission (under our bylaw) is whether is there is sufficient mitigation incentive proposed by the applicant to compensate for the buffer zone being used to this extent. The applicant has proposed to clean up debris and trash within the vernal pool (which has been ongoing), remove a 3,300 sq. ft. area of old pavement close to the vernal pool and restore this area with native plantings, modify the curbing along a section of Corporate Drive to promote its use as a crossing and migration route to the forested upland area to the north, and install Slow-Salamander signs along Corporate Drive on a seasonal basis and permanent Environmentally Sensitive Wetland Areas signs along Corporate Drive. The applicant has also indicated they are willing to put a Conservation Restriction on the vernal pool and its associated protected uplands. At its meeting on, the Conservation Commission agreed that if this project was subject to our bylaw for a formal decision, then these mitigation measures would be sufficient to allow the project with a portion located in the buffer zone of the vernal pool, and would be sufficient to grant a waiver for the portion of the building in the no build zone. 2