Friday, April 6, 2007
ZBA hears all sides on Coventry Woods
On Wednesday evening, March 28, the Zoning Board of Appeals (ZBA) heard from Coventry Woods developer Mark O'Hagan, abutters to his proposed 40B project on Concord Street and their representatives, members of town boards, several Carlisle residents, and even State Representative Cory Atkins. Members listened to almost four hours of feedback and concerns, asking questions of several speakers along the way. The ZBA decided to continue the hearings on at least two more dates before reaching their April 27 deadline to issue a decision on the Comprehensive Permit for the project.
Before hearing testimony from the developer or abutters, Chair Cindy Nock asked ZBA member Steve Hinton, an environmental engineer and BOH Water Quality Subcommittee member, to review key points of a recommended hydrogeologic assessment of septic system C, which was recently prepared by the board's consulting hydrogeologic engineer, Jim Vernon, of the civil engineering firm, ENSR. Hinton was pleased with the report, which he said was "very good" and "well written." The report included all the concerns discussed with Vernon at a ZBA meeting a little over a month ago when he was hired by the ZBA. Vernon detailed several areas of analysis needed for evaluation of the threat that septic system C may pose to abutters' wells. "He wrote of significant and substantial indicators," according to Hinton, "which point to problems with C."
Vernon wrote that his assessment is based on the question, "Will the proposed septic system have adverse impacts to abutters' water supply wells?" He noted that "three key factors make this situation unique and lead ENSR to conclude that site-specific hydrogeologic investigations are required"
These factors include the presence of two domestic wells (Epstein/Stone and Breuing/Kummer) located less than 200 feet from the planned system C's leach field. Other issues are that the wells are located in bedrock, and there is no town water supply to back them up "in case the wells are negatively impacted."
Vernon recommends several elements that are "critical" for analyzing project wells for connectivity, the direction of flow and the concentration of any contaminants in groundwater leaving septic system C and flowing toward abutter wells. The installation of monitoring wells along the property line between septic C and the private wells, according to Vernon, could be helpful for ongoing evaluation of mounding and nitrate analysis, bacterial and viral concentrations, and could "serve as sentry wells that might provide a warning before contamination reached the homeowner wells."
"What this says to me," concluded Hinton, "is there's a problem here."
Applicant Mark O'Hagan speaks
The ZBA allotted equal time for both O'Hagan and Jon Witten, attorney for several abutters, to address the board. Since most parties were still unfamiliar with the new plan for 48 age-restricted units (up from the previous 41-unit plan), which was submitted by the developer just hours before the last hearing on March 14, testimony began with O'Hagan.
O'Hagan said that the project was re-designed, in part, to address concerns about the proximity of septic system C to several abutters' wells. The septic system is now over 200 feet from all existing wells, O'Hagan emphasized, and reverting to an age-restricted development has helped to reduce septic flows.
"I hoped this would give them a little comfort," said the developer of those who had been wary of how the project might adversely affect health and safety in the neighborhood. "But it's not enough. I can't understand why there are still questions about system C," O'Hagan said in reference to the report by the ZBA's consulting hydrogeologic engineer discussed earlier.
New plan, same deadline
O'Hagan maintains that he has spent more than enough money on peer review for the project. He has not replenished the peer review account in 2007 and says he does not think any engineering review is needed for the new, 48-unit age-restricted plan. Nonetheless, he is still holding the ZBA to the same April 27 deadline that the board agreed to before the developer introduced new plans. Chairperson Nock asked O'Hagan whether he would consider extending the deadline to give the board adequate time to become familiar with the new plan. He refused, and also confirmed that no additional funds would be made available for peer review.
According to state regulations, developers are limited to a maximum profit of 20% on 40B developments. Witten reminded the board that the applicant recently submitted a pro forma for the 48-unit plan that shows a profit of 10%. While the appraisal of the developer's land authorized by Selectmen has not been completed, Witten has calculated a pro forma, also based on the applicant's figure of 10% profit, and has come up with a 24-unit plan. Several boards and the abutters are in favor of this plan, which Witten noted would be safer for the neighborhood, still profitable for the developer, and would not require a huge septic system.
"Clearly, if you have a 24 units, you don't need to have a septic system C," noted Planning Board Chair David Freedman.
ZBA attorney Dan Hill urged the board to request the applicant to provide a letter detailing the potential economic impact of the waivers being requested for the project as well as the conditions that are particularly burdensome in terms of cost. As the ZBA's review draws to a close, the board needs to determine that it has not written conditions that might render the project "uneconomic." Likewise, the developer can only request waivers from regulations that would cause the project to be uneconomic if not waived.
Attorney Ed Woll, who represented abutter Louis Salemy of Concord Street, said that the developer must prove that the project's five drinking water wells do not have "hydraulic connectivity." Currently, Woll explained, "the cluster of five separate 2,000-gallons-per-day (gpd) wells constitutes a well field that must be treated as a single well that is governed by the 250-foot protective radius for a 10,000 gpd well."
The developer has not performed the testing that would show whether the wells "communicate" with each other. O'Hagan's plans show a 145-foot protective radius. However, unless the applicant proves through testing that the wells are not hydrologically connected, Woll maintains, the smaller radius is inadequate. Woll says there is now a "presumption of connectivity" that could require that the plans be revised to accommodate a radius of 250 feet, thereby substantially reducing the size of the development.
"There is no regulation in [Massachsetts Department of Environmental Protection] DEP that says you can have a smaller protective radius just because you have multiple wells," said Woll. "You have to go out and do the testing, and the applicant has chosen not to do that."
"So we can assume there is connectivity because we have not been shown that there isn't?" asked Nock, who received a nod from Woll.
Abutter attorney Jon Witten asked the board to review the Project Eligibility (site approval) letter sent to the Coventry Woods applicant (listed as Bruce Wheeler) from MassHousing on June 10, 2005. The five-page letter includes several points regarding the need to protect the wells of abutters from septic contamination, the blasting of ledge during construction, or any other threats to the neighborhood's water supplies and environmental resources. MassHousing writes, "you should be prepared to address each of the above concerns during the public hearing and incorporate any necessary changes into development plans."
"What you've heard from Jim Vernon," Witten noted, "is that the private wells abutting this property are not protected."
Rep. Cory Atkins
urges ZBA to protect wells
State Representative Cory Atkins, who represents Concord, Carlisle and Acton, appeared at the hearing because she said she is concerned that abutters do not "have a remedy" if their wells are contaminated by the Coventry Woods' septic system. She emphasized that she is a "major advocate of affordable housing" but still implored the ZBA to do anything it can to protect the wells of abutters because there is no town backup if they lose their wells.
The ZBA plans to meet twice this month: on April 9 at 6 p.m. and on April 23, planned tentatively for 7 p.m.
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