Friday, March 2, 2007
ZBA presses for septic analysis at Coventry Woods
The Zoning Board of Appeals (ZBA) hearing on the Coventry Woods 40B application continued on Friday evening, February 16, with the board pursuing unresolved questions about the potential impact of effluent from the development on the wells and homes of several abutters. At its last meeting, on January 29, the ZBA agreed with a strong recommendation from the Board of Health to require the applicant to conduct groundwater mounding analysis, in accordance with Title 5 regulations, as well as a solute transport study proving that nitrogen and fecal levels will not affect the neighbors.
Applicant considers hearing closed
One absence in particular was noted: Mark O'Hagan, the applicant for the proposed 41-unit development on Concord Street, was sitting this one out. At the end of the last ZBA hearing on January 29, the applicant submitted a letter to the board through counsel stating that he considered the hearing closed and would no longer be participating. ZBA attorney Art Krieger noted at that time that the applicant does not have the authority to close the board's hearing, and he reiterated that point at the February 16 meeting when he took the opportunity to provide an update on process.
Krieger explained that in about a week, 40 days after O'Hagan submitted the letter, the applicant can approach the state Housing Appeals Committee (HAC) and attempt to convince the committee that the hearing should have been closed. Some possibilities that might ensue are:
1. The HAC could rule that the ZBA has been acting in good faith and order the applicant to continue with the hearing process;
2. The HAC could agree that the hearing should be closed shortly and require the ZBA to make a decision by a particular deadline;
3. The HAC could agree with the applicant that the hearing was closed on January 29, after which 40 days expired without a decision, resulting in constructive approval of the comprehensive permit.
Krieger noted that the possibility of constructive approval is by far the least likely option to occur.
While the applicant said he is no longer participating in the ZBA hearing, Krieger has had several discussions with O'Hagan's attorney Lou Levine about continuing the process. Krieger noted that the applicant's decision to no longer participate in the hearing was "triggered, in part, by the vote this board took [January 29] regarding nitrogen, virus and bacteria transmission and transport..."
Where will the water go?
As part of the hydrogeological study recommended by the Board of Health (BOH), the ZBA voted unanimously on January 29 to require the applicant to provide groundwater mounding analysis and a solute transport model on groundwater leaving septic system C. (The transmission and transport of nitrogen, viruses and bacteria would be included in these studies.) The BOH had recommended this analysis to determine the potential hydrologic and water quality impacts extending beyond the property line toward the wells and homes of several abutters. In other words, as ZBA member Steve Hinton explained later during a phone interview, this analysis will help the board learn two important things: "where the water goes" after leaving the septic C leach field, and "what's in it."
Groundwater mounding occurs when a discharge of wastewater increases the water table level. The "mound" refers to an influx of ground water that raises the water table, not to the large mound of soil needed to filter effluent at the site of the septic system. Horsley wrote to the ZBA on December 18, 2006, "I have conducted a preliminary mounding analysis that indicates an additional four to seven [feet] of water table rise dependent upon final septic design flow rates. It also suggests that hydrologic impacts will occur across the property boundary on the Epstein/Stone parcel. Our model suggests a water table rise of approximately one to two feet at the Epstein/Stone septic system. This may compromise Title 5 compliance at their system, and/or it may also cause basement flooding."
Horsley's model suggests at least one other scenario of where the water might go. The engineer also noted in a letter to the BOH on January 16 that the Kummer/Brueing property is another possible destination for the effluent flowing from septic system C. And if the water could be headed for these two properties, there is data to show that it could also be headed for their wells.
What's in the water?
If engineering analysis shows that the groundwater from septic C is likely to end up on abutters' properties, perhaps even in their wells, determining what is in the water and how much is there becomes more important. Horsley and the BOH have recommended that the developer's studies analyze the potential concentration of contaminants in groundwater when it reaches the property and/or wells of abutters. However, a sticking point for the developer seems to be a perceived lack of well-established standards and procedures by which levels of contaminants might be evaluated.
There are DEP standards that are acceptable to some parties but not strict enough for others. For example, while the state and federal drinking water standard for nitrogen is 10 mg/liter, Horsley wrote to the BOH on January 16, "5 mg/liter is recommended at the property boundary to provide a margin of safety." It is the "open-endedness" of such numbers that O'Hagan objects to most strongly.
Due to the highly technical nature of the proposed study, Krieger mentioned that the ZBA might want to consider asking Jerry Preble, one of ZBA's engineering consultants, to bring in a hydrogeologic engineer who could provide technical support in both developing the methodology for and implementing the hydrogeological study. The hope is that such expertise could quickly address the discrepancies between acceptable evaluation standards and establish firm criteria on which all parties could agree.
After some discussion of and agreement with the merits of hiring a consultant to assist town counsel in addressing the highly technical challenges of this project, the ZBA voted to engage the hydrogeologic engineer at a cost not to exceed $6,000. Selectman and affordable housing liaison John Williams said that all efforts will be made to recover the actual cost of these services from the applicant, but Selectmen will not stand in the way of this process moving forward.
Tree removal approved
The ZBA approved the removal of four trees and the clearing of 15 feet of brush at the proposed driveway to the Coventry Woods development on Concord Street during a public hearing under the provisions of the Scenic Roads Bylaw and the Public Shade Tree Act.
While the removal of Public Shade Trees is usually reviewed by the Planning Board, Chapter 40B allows developers to bypass some local requirements when seeking a comprehensive permit from the ZBA.
When approached from Carlisle center, the proposed driveway would be located within a winding section of Concord Street about a mile from the center. The four trees slated for removal are on the left side of the road and tagged with pink tape.
The tree removal is intended to improve the sight distance for vehicles exiting the driveway as well as those traveling on Concord Street. There was a question as to whether all the trees that need to come down for traffic safety had been tagged, but the board decided that if more trees need to be removed, the developer would have to return to the ZBA at a later date.
The ZBA voted 3-1 to approve the tree removal, with Ed Rolfe opposed.
Payment of fees
Krieger informed the board that the applicant has agreed to pay $7,500 to cover fees for peer engineering review up to the December 18 hearing, and that remaining fees are still up for discussion. The developer has still not replenished the peer review account to the $20,000 level that is required.
The ZBA hearing on the Coventry Woods application for a comprehensive permit will continue on Thursday, March 1.
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