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HomeMy WebLinkAbout2018-10-30ZBA Minutes for October 30, 2018, adopted Dec. 5 N A 14 T U r ZONING BOARD OF APPEALS T O `I Public Hearing 2 Fairgrounds Road 2016 DEC -6 PM 8: 22 Nantucket, Massachusetts 02554 www.nantucket-tna.gov Commissioners: Ed Toole (Chair), Lisa Botticelli (Vice chair), Susan McCarthy (Clerk), Michael J. O'Mara, Kerim Koseatac Alternates: Mark Poor, Geoff Thayer, Jim Mondani ~~ MINUTES -- Tuesday, October 30, 2018 Public Safety Facility, Nantucket High School Auditorium — 4:30 p.m. Called to order at 4:36 p.m. and Announcements made. Staff in attendance: Eleanor Antonietti, Zoning Administrator; Mark Willett, Manager Wannacomet Water Company Attending Members: Toole, Botticelli, McCarthy, Koseatac, Thayer, Mondani Absent: O'Mara, Poor Town Representative: George Pucci, K&P Law, P.C.; Peer Reviewers: Peter Newton, Hydrologist Bristol Engineering Advisors, Inc.; Kelly Cardoza, Avalon Consulting, Select Board consultant A enda ado ted b unanimous consent APPROVAL1. OF 1. October 3, 2018: Motion to Approve as amended. (made by: McCarthy) (seconded by: Koseatac) Carried unanimously 11. OLD BUSINESS 20-18 Surfside Crossing, LLC Surfside Crossing 40B Freeman / Reade The Applicant is seeking a Comprehensive Permit in accordance with M.G.L. Chapter 40B, pursuant to a project eligibility letter issued by MassHousing, in order to allow a multi -family project consisting of 156 for -sale dwelling units comprised of 60 stand-alone single-family cottages on fee simple lots and 96 condominium units in 6 multi -family buildings, with 25% (39 units, 15 cottages and 24 condominium units) designated as affordable units, with a total of 389 bedrooms. The existing lots will be subdivided into 60 fee simple lots, 4 open space lots, and a 3.6 acre condominium lot. Off-street parking will consist of 2 spaces per cottage and 148 spaces designated for the condominiums. Infrastructure and amenities will be provided; however, the proposed project is proposed to connect to municipal water and sewer infrastructure. The application and supporting materials are available for public review at the Zoning Board of Appeals office at 2 Fairgrounds Road between the hours of 7:30 A.M. and 4:30 P.M., Monday through Friday. The Locus is situated at 3, 5, 7 and 9 South Shore Road and is shown on Assessor's Map 67 as Parcels 336, 336.9, 336.8, and 336.7 and is shown as Lots 4, 3, 2, and 1 on Plan Book 25, Page 50 as recorded at the Nantucket Registry of Deeds. The total lot area of the combined parcels is approximately 13.5 acres. Evidence of owner's tide is recorded in Book 1612, Page 62 at the Nantucket Registry of Deeds. The property is located in a Limited Use General 2 (LUG -2) and within the Public Wellhead Recharge District. Any person interested in the proceedings or who wishes to be heard should appear at the time and place of the public hearing. Voting Toole, Botticelh, McCarthy, Koseatac, Thayer, Mondani Documentation Site plans, 2002 Nature Conservancy map, PowerPoint® presentations, US Fish and Wildlife Service 4(d) rule, MGL 139 & 131, Massachusetts Natural Heritage letter; 40B Comprehensive Permit application documentation; Mr. Feeley's statement on changes to the plan. Representing Don Bracken, Bracken Engineering, Inc. Brian Madden, LEC Environmental Jamie Feeley, Cottage & Castle, Proponent Peter Freeman, Freeman & Freeman Law, P.C. Chris Dallmus, Design Associates Public Diane Cabral, 8 South Shore Road Ron Bamber, 28 Washing Pond Road Paul Derensis, attorney for Nantucket Tipping point and 285 Island homeowners Cormac Collier, Executive Director Nantucket Land Council (NLC) Maureen Phillips, 30 Long Pond Peter Fenn, counsel for NLC Mindy Levine, 10 Folger Avenue Jack Weinhold, 11 South Shore Road Meghan R. Perry, 14 South Shore Road David Glowacki, Pine Crest Drive Jacques Zimicki, 3 Wherowhero Lane Bruce Perry, 14 & 16 South Shore Road Patrick Taaffe, 21 Okorwaw Drive Campbell Sutton, 15 Appleton Road Page 1of8 ZBA Minutes for October 30, 2018, adopted Dec. 5 Discussion Newton — Nantucket has three aquifers: the top aquifer from the Wisconsinan Glaciation is about 100 feet deep and is fresh water; the middle aquifer from the Illinoian Glaciation, about 150,000 to 200,000 years earlier, is the inferred transition zone between fresh water and saltwater. When rain infiltrates into the ground, it pushes saltwater down 40 feet for every foot of fresh water; saltwater is about 500 feet down. Wannacomet Water has five public water supply wells: 3 at the Milestone site, one at North Pasture, and one at the State Forest. Wells 15 & 16 at the Milestone site draw water from the Wisconsinan aquifer and produce about 1400 gallons per minute or about 2M gallons per day; the other three wells draw from the Illinoian aquifer and can yield about 2100 gallons per minute or about 3M gallons per day. Wannacomet has the capacity to pump about 6M gallons per day. He was asked if this development would negatively impact Nantucket's water supply; in his professional opinion, that is very unlikely. The project is not within the wellhead protection district and is outside Zone 2 for wells 15 & 16. The other wells draw from about 175 feet with a layer of silt and shell between them and the upper aquifer. The water quality between the two aquifers is different: upper aquifer has a PH around 5 or 6 and tends to be on the acidic side; the water from the lower aquifer has a PH of about 8. Given the residential nature of the project and distance from the public wells, he doesn't think this project presents a threat to the water supply. There is a difference between the capacity of water to be drawn and what the State allows to be drawn. Wannacomet is allowed to draw 1.6M gallons per day versus the potential to pump 6M gallons per day. He was surprised that storrawater is being managed pretty "old school"; most large-scale developments are using low -impact technology that captures stormwater, which he suggests be implemented. A homeowner's association (HOA) should be established to handle snow removal, landscaping and the documents require anyone performing maintenance services be familiar and certified with integrated pest management; herbicides, pesticides, and road salt can be a threat to the water supply. Pucci — Asked that Mr. Newton address the zoning bylaw that is within his purview; that would be helpful for the ZBA consideration regarding approving or denying waivers. Chapter 139 section 12.B Lb and 1.q. Toole — Old-school/new-school recharge systems, with the original plan, could all the rainwater or recharge be taken care of with rain gardens and stormceptors. Newton — The difficulty with greater density is that you need land area: vegetated swales are very common and maintained and engineered in such a way so that 60% of the storms can be handled. Most low impact projects have infiltration galleries under the swales to deal with the stronger storms. You want to catch and treat the first rush of storm runoff. To Mr. Pucci's points: 12.B.Lb addresses industrial use of fertilizers: HOA documents should specify licensed applicators; the other is stormwater, if they want a waiver, they should show more treatment of the runoff. Toole — Asked about the maintenance of the `old school' versus `new school' runoff treatment. Newton — The maintenance is different; but the new systems can be designed to allow a mower to drive through them then clear out the grass clippings. If the primary system is not maintained, the secondary will become a problem. Mondani — Asked about the effects of the private wells in the area and how the pond water quality might be impacted. Newton — He can't respond to the question about private wells because he doesn't know where they are; in a general sense, the capture zone is small; but if there are concentrated discharges which collect pollutants, there is a small potential of that getting into the private well. There is not a lot of flow velocity here. Regarding Miacomet Pond, if proper maintenance and road -salt activities are followed, he doesn't expect any long-term impacts on the pond. Bracken — Their presentation will address implementation of low -impact drainage methods. The drainage system they started off with is the same system that was installed at the Wannacomet's new facility, the new fire station, and the new intermediate school; the proposed system is used and accepted by the Town. There are some steps they can take to address some recent concerns: swales and vegetated rain gardens in the open area within the condos, leaching systems under parking areas, catch -basin system in the residential area going into the 3,000 -gallon tank, and a Storm Tree system at each catch basin. Working out `grey areas' with John Chessia to come up with a mutually agreeable way of treating runoff. Added the location of the neighboring wells to the plan presented tonight; the infiltration is at least 100 feet from the nearest well. We submitted revised waivers but haven't asked for any waivers on the zoning bylaw referenced in the report. They agree with all the summaries. Toole — Asked if Mr. Newton's opinion is that no threat from this development to the water supply. Newton — The summary states that in his opinion this project does not present an undue threat to the Wannacomet Water supply. Cardoza — Avalon was hired by the Select Board to look at the development site for the potential for habitat for the state - listed vascular plant and the northern long-eared bat and to review the on-going Lepidoptera study the applicant was performing. The site was mapped as priority habitat by Massachusetts Natural Heritage (MNH) Endangered Species Program (NHESP); the state has confirmed the site is a habitat for endangered species of special concern, the coastal heathland cutworm moth; the state will require mitigation for impact to 13.5 acres at a ratio of 1.5 acres to 1. The mitigation option the applicant has chosen is land protection up to 20.34 acres via conservation restriction; reviewed the other two options. We looked at readily available mapping and requested permission to conduct surveys on the property; access to the site was denied. Reviewed the readily -available map created by the Nature Conservancy published in 2002. A portion of the site is listed as coastal shrubland. The primary portion of the site is mapped as pitch -pine mixed shrub woodlands; this community is mature pitch -pine trees with an underscore of bayberry, bearberry, and huckleberry and some scrub oak. Based upon aerial photography and what is known about the adjacent area, we are certain there is open-air canopy where there is herbaceous vegetation; these are likely habitat spots for the state -listed vascular plant, potentially the New England Blazing Star, and sand -plain blue-eyed grass, which are protected species. We believe there is every reason for there to be habitat for the cutworm, but we can't confirm that since we have not been allowed access to conduct the survey. We Page 2of8 ZBA Minutes for October 30, 2018, adopted Dec. 5 recommended to the Select Board that these areas be surveyed for the Blazing Star; it was blooming at the time of the last hearing and at a site nearby. We took a similar approach in looking at the bats; the science around the northern long-eared bat is still very young and believe that is why NHESP hasn't been forceful in looking at that; the species wasn't identified on Island until 2015. The northern long-eared bat is listed as endangered by both the Federal government and the Commonwealth of Massachusetts. Explained the bat is endangered because of the spread of white-nose syndrome; the Island population doesn't seem to be affected by the fungus which causes the disease. Reviewed the life habits of the long- eared bat. We can only identify if a site has a maternity roost between June 1 and July 31; we weren't engaged at that time and haven't been granted access so it's impossible to know if this site serves as a maternity roost. We've conducted acoustic surveys and confirmed bats are using this area. About 12% of the island is forested with only about 8% being pitch pine; if 10 acres of this site is cleared, that will be a loss of potential habitat. Noted land they could access around the site where the presence of the bats was confirmed. From a regulatory perspective and if the site were determined to be a maternity roost, the US Fish and Wildlife Service has a 4(d) rule: prohibits the clearing of trees between June 1 and July 31 within 150 feet of a known, occupied roost. We recommend the ZBA consider treating the site as if it had a maternity roost and ask that no trees within 150 feet of the known occupied area, meaning the entire site or else conduct a study to determine whether the site serves as a maternity roost; map and avoid cutting mature pitch pine (8" diameter) in the buffer and cleared areas; retain the snags and native plants in the buffer areas; and ongoing invasive species management in the buffer zones. Recommend the applicant be asked to conduct a mapping of invasive species now and in the future; there is a tendency for invasive species to grow adjacent to parking lots. Madden — Since July, the moth survey was complete and submitted to MNH and the endangered species review-, Avalon summarized the results of the survey and what MNH concluded. We received that determination letter October 19; based on the moth surveys, it was concluded that there was one species of moths that is of special concern; only three were found, which was enough to substantiate a take as a potential habitat exists. After that, we reached out to MNH; they are requiring we mitigate for impact across the entire project site. That corresponds to the mitigation acreage reviewed by Avalon. MNH responded to our inquiries confirming that mitigation for the cutworm can be off site provided through land protection up to 20.34 acres or funding to a qualified conservation organization. MNH also provided a response to the Town about the long-eared bat: 4(d) doesn't apply to roost during wintering, we are proposing to have no tree cutting during June and July in accordance with the 4(d) rule. MNH found the no-cutting restriction to render the study not necessary. Relative to the vascular plants, MNH acknowledged the New England Blazing Star was found on adjacent Sachem's Path property within existing sampling of the habitat conditions and found only within that habitat, which does not exist on the project site. MNH found that the property does not meet the criteria for mapping as priority habitat for the listed plants. Toole — Asked if Mr. Madden looked for and did not find Blazing Star. Madden — He was out there during the flowering period and did not observe any. If Blazing Star were found, the mitigation would overlap with their currently proposed mitigation. Toole — Asked if the mitigation land can be off island and if any organization can be a recipient of a donation as long as MNH agrees to it. Madden — It is our preference to have the mitigation on island ideally through land protection; but if the funding can be directed toward a conservation group to implement a MNH-approved project, we'd provide the funding. Preliminary discussions were paused; now that we have finite numbers, we can move forward with that. Toole — Asked if the ZBA can condition through the comprehensive permit that the mitigation must take place on Island. Pucci — They would be able to challenge that; it is beyond ZBA jurisdiction. Could come to an agreement with the developer on these issues. Where an issue of local concerns blends with issues outside ZBA jurisdiction, he'd have to render an opinion. Toole — Asked Mr. Madden what is the time-frame for the final step to get MNH approval. Madden — The next step in the review process is we submit a conservation management permit application; once MNH reviews the specific mitigation details, they can issue the permit. Once the application is submitted, MNH has 30 days to provide a response; that can be continued to work out details. It's difficult to speculate if issuance of that permit would be concurrent with the issuance of the comprehensive permit. Pucci — Noted that the water quality consultant has a boat to make. Suggested any public comment for him be allowed at this time. Also, suggested that if anyone has a point to make regarding an error or inaccuracy (not a question or cross examination) they be allowed to make it. Toole — Opened the discussion up to the public in terms of the water-quality report. Cabral — She wants it on the record that her well is less than 70 feet from this project. Bamber — This board and the planning board have approved 1,054 buildable lots on the island. Asked if the ZBA is going to throw those currently 1,054 buildable lots out the window in order to approve this. He wants to hear from David Gray and Mark Willis (sic) if there is enough water and sewer left for 1,054 lots with a house and cottage, let alone the contamination of water at the landfill. Contends that the shallow and deep wells are totally contaminated. Pucci — Asked that the comments and questions be limited to water quality to be answered by the consultant, so he can make his boat. Public comments are schedule for later. Bamber — Asked that Mr. Newton answer his question about the 1,054 lots. Toole — He doesn't understand how that is germane. We aren't talking about sewer capacity. We are talking specifically about whether or not the water supply would be impacted by this particular development, period. If you want to talk about how many lots are left, save that for later. Page 3 of 8 ZBA Minutes for October 30, 2018, adopted Dec. 5 Derensis —There is a difference between physical and legal capacity. The limitation on the water supply- is 1.68-N1 gallons; asked that be confirmed as correct. Newton — That is correct. Derensis — Through a records request on the water company, they are unable to produce any permits to that effect They have a permit that expired in 2013 for 1.68M gallons per day; but could not produce a current and valid water withdrawal permit. Pucci — The department head is present and says Mr. Derensis' statement is not true. Asked that the consultant be allowed to leave since there seems to be no questions for him. SUTTON This is a Public Hearing. We are getting shut down. Pucci — We've spent a lot of public hearing time hearing about extraneous issues. Public comments are specifically listed on the agenda at which time any point can be made. This is about courtesy for someone who has a boat to make. The Town department head told him that the comment about the permit Mr. Derensis made is not correct. He's not going to ignore due process and let mis-information be provided. He is trying to guide the ZBA to stay reasonably on track with issues which he within its jurisdiction. He's not seeing anything that requires the physical presence of Mr. Newton. Toole — The meeting will adjourn at 7:45; the consultant can stay until then. Derensis — He received documents from the Town and insists they are not as characterized by Mr. Pucci. We will put those documents into the record at the next session. The point being made is that there is a legal limit of 1.68M gallons per day; he believes the consultant would say that at this time, the project would add a load to that 1.68M that would put the water use in excess of that limit; asked for confirmation the statement is correct. Newton — That is not technically correct. He's referring to the Massachusetts Water Management Permit; the program requires permitting to draw public water in excess of 100,000 gallons per day. A water system does not have to reapply for a new permit until that 1.68M gallons per day is exceeded by 100,000 gallons per day. Wannacomet won't be in violation until they exceed 1.78M gallons per day; in practice the department frowns on exceeding the permit by a substantial amount for an extended period of time. In 2009-2010, Massachusetts Department of Environmental Protection (MaDEP)embarked on the Sustainable Water Initiative; the program halted the department's ability to issue new permits; in conjunction with the 2008 recession all permits in place at that time were extended two years then extended an additional two years in 2015. In light of that, he doesn't believe that the Wannacomet permit has expired. MaDEP has admitted to being behind issuing permits. Derensis — That is a legal, not a hydrological issue. Newton — The hydraulic capacity is about 6M gallons per day, which is 3.5 times Wannacomet's authorized volume. Mr. Derensis is referring to the authorized volume. Derensis — Asked if Mr. Newton is aware that Wannacomet has exceeded the permitted allotment over the last three years. Newton — He is aware Wannacomet has exceeded the 1.68M gallons and are close to the 1.78M violation. Wannacomet is in discussion with the state about additional volume. Toole — He doesn't see where Mr. Derensis is going. If there is a legal point he's trying to make, this isn't the forum; we are trying to gather information. Derensis — Insists he is trying to get Mr. Newton back to the point about the 1.68M gallons per day permitted limit and that the water company is at the capacity. That is what was said in the report. Newton — He also made the point in his report that the water company has the physical capacity to meet the needs of this project. Wannacomet does not have a permit for the increased volume because the MaDEP has not issued it McCarthy — These are question that need to be asked of the State. We have gone over this at length two meetings ago. Mr. Derensis has gotten a lot of time at the mic and would like others to have a chance. Collier — Acting as the Water Commission, the ZBA has to issue a permit for the amount of gallons requested. It is germane if ZBA is allowed to do that considering the conflicting information about the State. McCarthy — Asked Mr. Pucci to clarify whether or not ZBA has a right to issue a permit that would exceed the State permitted allowable draw. Pucci — ZBA would treat this the way the Water Commission would. We can address the issue of the capacity and what is going on with MaDEP. If the Town is granting other connections that allegedly exceed the permit, the ZBA must treat this similarly. It would be a good idea to seek clarification from the State whether or not ZBA could issue the permit if it exceeds the state allowance. Willett — We do have communication with MaDEP; we are in compliance; they are working on issuing permits all over the Commonwealth; there is no moratorium on water connections. We have a MaDEP letter from 2016 that grants 5% more than the 1.68M until they figure it out. MaDEP has said the new permit will grant us 1.9M gallons per day. Toole — He's not trying to shut down discussion on whether or not ZBA can issue the connection permit We are just not yet at that point; we are trying to get through the consultants, so we have a reasonable amount of information, so we can get to those points. It's frustrating to get off track. Once we have all the information, then we can have a discussion with the public about whether to issue a denial or an approval with conditions. Nothing has been decided yet. Asked again for specific questions and comments about water quality. Phillips — What she had trouble understanding was the statement the Wannacomet Water Company (WWCo) is below the 1.68M in the fall, winter, and spring and above that in the summer, it then says, "To date, the water company has been able to supply the demand while remaining at or slightly above its authorized withdrawal- However, increasing demand from this project and others means the water company will be required to either implement water conservation policies or seek Page 4 of 8 ZBA Minutes for October 30, 2018, adopted Dec. 5 a permit for additional withdrawal volume in the near future." She has trouble reconciling that statement with the assurances this evening that all is fine. Asked what the consultant meant when he wrote that. Newton — Mr. Willett explained that they are seeking additional volume in the new permit. If I had that information when I wrote the report, I would have said they are in the process (of obtaining the additional volume). In terms of water conservation methods, Island residents are doing it now; you're not in a position for complete bans on outside irrigation. Phillips — She appreciates Mr. Newton's response and understands that the additional volume is being applied for. Further along, Mr. Newton says, "This appears to be more of a systemic issue with some aggressive demand projections provided by the regulatory agency that may significantly underestimate the summer population on the Island." Newton — He allowed himself to throw a small lob in the direction of MaDEP. Unfortunately, the State looks at census data and makes projections from that; 100% of the time the community thinks they will use more. His comment addresses the fact that Mr. Willett and all those present know what the summer population is. Nantucket does not have a problem with meeting the physical capacity of water use on the Island. He and others in the industry believe there is a systemic problem at the State level with how they determine the demand on water. Phillips — The last thing she wants to clarify is in talking about future concerns and with other developments going on, she hopes the ZBA looks at the projected growth of the Island; all of us are very concerned with how we plan to go forward. She's concerned that this project is being looked at as though it were the only development; it's not. Fenn — Asked if there will be a discussion at a future time about stormwater handling. On water supply, he respectfully disagrees with Mr. Pucci; we can look at this differently than other water hook-ups of one lot here and one lot there. The ZBA is the comprehensive permit granting authority sitting as the Water Commission and other boards. This project is a Comp Permit under 4013; but you are charged with looking at health, safety and environmental in regards to this project WWCo isn't charged with those responsibilities when hooking up a single-family home. Levine — Asked as a homeowner on a well and septic if she should be worried that in 3-5 years if her well water is contaminated, and she must hook up to Town water that her request would be denied. Willett — The growth is part of the reason the permit is tied up; it is a problem with all the Cape and Islands. We've given them projected numbers on buildout and they are working on it. It is not the amount of water we are getting out of the ground. Pointed out that the Commonwealth owns the resource (aquifers), not Nantucket Thayer — Based upon the projected 1.9M, asked if there are a number of additional housing units attached to it Willett — Yes, now more have been submitted; this has been going on several years now. With the projects, projected and currently underway, there are 700 possible new connections; we can handle it. If we prove we've experienced growth beyond what everyone expects, there is a MaDEP negotiation process for a new application and the 1.9M; we could go to the next 5 -year projection of 2.1M gallons per day early. Toole — Asked if it would be reasonable for Mr. Willett to put a summary on paper that the ZBA and public can have; there are too many numbers being bandied about. You've factored in all the new subdivision; asked if there is anything to preclude someone who's well fails from getting a connection. Willett — They have the 700 new connections plus the 105-110 or so connection we do every year, it's all factored in. He'll put a summary together. Mondani — If we were maxed out and the developer couldn't tie in, asked if they would be able to drill their own well with the proposed layout. Newton — Yes, they could drill their own well; they would be less than 100,000 gallons per day so don't need the water management permit. Toole — Asked if they put a well in, what would be the radius around the well that would need to be maintained as clear. Newton — There is a formula to figure that out; looking at the number of bedrooms, they'd need around 40,000 gallons per day requiring a radius of between 280 to 300 feet. That's called Zone 1 and is a regulatory zone which is protected and unusable. Bracken — We will have irrigation wells on site. We agree with the recommendations in the report. Toole — Asked Mr. Bracken to look at cisterns as part of the stormwater recharge system. Bracken — We can examine it but it's complicated to have each house on its own irrigation system. Toole — We need more details on the irrigation plan. Weinhold — He has a 55 -foot well that is 10 feet off the property line. He wants assurance from the consultant that he has nothing to worry about from this project. Newton — He can't give assurances for anything; it's inappropriate since he doesn't know what people on the site will do. Under expected conditions, it is unlikely there would be a problem. Toole — Hypothetically, what could cause contamination. Newton — Hypothetically, the obvious thing is road salt; could have an auto accident that spills gas or heating oil spill. There are a lot of things that COULD happen. The stormwater handbook talks about the first wash; the first wash is what carries pollutants on the road, which could be oil, micro particles of rubber. The most likely would be pesticides or fertilizers. M.Perry — Asked if the force main that runs through the property could affect Mr. Weinhold's well if it were to break. Newton — That would be a problem for a lot of people. Glowacki — Everyone is under the impression that everything will go as planned. At Beach Plum Village, something unintentional happened; a crane leaked oil from Fairgrounds Road all the way into the village; it was hundreds if not 1,000 gallons of oil that ended up in the ground. Page 5 of 8 ZBA Minutes for October 30, 2018, adopted Dec. 5 Feeley — There wasn't anything close to the amount of hydraulic fluid as indicated by Mr. Glowadd. The crane was "dripping"; as soon as we noticed, we got a catch pan under it It was a couple of gallons at the most and we did report it and made a big deal about it. Zimicki — His well is located 20 feet from the property line; we pump about 3 gallons a minute in the summer. A couple of things about ground water; the flow toward the public water supply is up hill. We need to address how quickly stormwater will go into the ground and into the aquifer; it happens quickly on Nantucket Any number of studies on upper aquifer talks about an upward velocity of 200 feet per day. An oil spill will get into the public water supply fairly quickly. Other particles move quicker up to six feet per day. There is movement within the aquifer and that isn't fully understood. He is very concerned about pollutants; his draw down would be under the amended drywell. Toole — Asked that in the next applicant's submittal, that they show the neighboring well. Bracken — The wells are shown on their plans. Cabral — Asked if they were to put in a well if that would impact the pressure for the neighboring wells. Newton — He would have to do a hydraulic inspection to figure that out Derensis — There was a section of the report that talked about wastewater, there is a sentence, `°The peak flows in summer can be as high as 8,000 per minute for multiple hours." Over a 24-hour period, that is a rate of 11.5M gallons per day. Newton — There are peak flow rates that are high but there has never been a day that had a flow of 12M gallons per day. Derensis — Asked for confirmation that the treatment plant legal capacity is 4M gallons per day. Newton — That is correct. Freeman — We have a presentation to include proximity of abutting wells. The next item on the agenda is the applicant's presentation. Toole — Now we need to speak to MNH. Derensis — There is a MNH determination letter dated October 19, 2018 that he would like to be part of the record. B.Perry — The final MNH determination states that the project is a priority habitat and will result in the Take of a state- listed species in excess of two acres per acre. Because it alters more than two acres of habitat, they are required by the Massachusetts Environmental Policy Act (MEPA) to file an application. Until that process is finalized, they can do no work on the property. It matters to the ZBA because the process will take about six months; assuming they are allowed off-site mitigation, that will require 24 acres not currently protected. The six-month process will bring us around to another growing season when the applicant can do a plant survey of the property. He was involved in those plant surveys for Sachem's Path and the Miacomet Village expansion; he found state-listed species, in addition to the Blazing Star, on both properties and in close proximity to this property. Just walking through the property when the Blazing Star is in bloom is not a scientific survey. MNH required a scientific study be done for Sachem's Path; once we found the plant, we had to provide a mitigation plan. All that work will take more than January 2019, which is the project deadline. Suggested ZBA take some time off to allow the applicant to go through the State process and get a sign off from MEPA. One map shown by Ms Cardoza had a vegetation mapping from 2002; that was 16 years ago; vegetation has changed a lot in that time. The scale of that mapping was such that the smallest area shown was two acres; on a project of this size a two-acre minimum does not show what is on the property. Agrees that better clarity is needed; we've been on this for about six months and still don't have a final project. Madden — We are aware of that and an ENF (Environmental Notification Form) will be required for this project Relative to the plant question, we defer to MNH; based on information provided to them, which includes photos, maps, and site mapping, they concluded the species don't exist on the site. Freeman — This is another example of redundancy and not getting to the point Mr. Perry asked to see a final plan and that's why he wants to get to the applicant's presentation. The Town's attorney agreed with us that the issue of endangered species is a State issue. We must comply with the State; we started that process early so that the ZBA will have that information. We are following the State law and that information is available to the public. Asked to move forward with their presentation. B.Perry — He thinks with a project of this scope and size the ZBA can require more than the State minimum to protect the environment on the property and this Island. M.Perry — We have heard the plan they submitted to Mass Housing; she thinks it's okay to ask questions at this time. Toole — Asked how the board feels about MNH. Mondani — Asked if this falls within ZBA purview. Pucci — For your jurisdiction, there is a fine line of environmental issues of local concerns within ZBA purview versus trying to enforce specific regulations or requirements within the jurisdiction of the State. You could deny the permit based on an issue of local concern that out-weighs the need for housing or you can condition on areas of local concerns. If the applicant doesn't like the conditions, they would have to prove they would render the project un-economic. If there is a local regulation that is more restrictive than the State, apply it. The ZBA does not get to sit in place of MEPA. A request was made before to defer this process until completion of the State process; at that time Rana Quirk advised against doing that; there is a case law that does not allow the ZBA to delay action on the application pending a State process that is underway. The Select Board can pursue an appeal of the State decision. ZBA would have to find authority to regulate an environmental issue. M.Perry — MGL 131 is referenced in the packet; the ZBA has the jurisdiction to write MNH a letter that would bring them to the Island and physically inspect the site for endangered species. Asked if the ZBA would agree to write that letter. Toole — He thought the Select Board did that. Asked Mr. Pucci to address this. Page 6 of 8 ZBA Minutes for October 30, 2018, adopted Dec. 5 Pucci —There is a provision for providing notice for when application goes before a board and there is an issue of habitat. The board notifies MNH. That wasn't exercised in this case; but it seems a moot issue as MNH knows about this and issued a determination. It's a legitimate issue of local concern; the Select Board hired a consultant that wanted to go on the site. People don't want to see a permit go forward based on what is believed to be incorrect information. However, MNH is a separate process. The ZBA is free to write a letter as an interested party; the notification has come and gone. The Select Board and other parties have presented some type of advocacy to MNH. There has been appeal procedure with respect to that. Because of issues about field survey and no ability for the Town to do a site visit, he submitted a Public Records Request to MNH for all records and documents submitted. When his office receives that, it will all become public and it is up the ZBA or Select Board to follow up with MNH based upon the information presented and pursue an appeal process if desired. Toole — It seems odd we didn't get this; we got other information. He understands the concerns when ZBA isn't given the full picture. He's referring to the Fisheries and Wildlife letter of determination dated Oct 19, 2018; he doesn't understand why the ZBA didn't get it. Madden — It looks like the ZBA or the Town were not CC'd on it. In our email confirmations, we acknowledged receiving the letter of determination. Toole — The email stream does talk about these issues and about the Take on the moths and potentially on the Blazing Star. M.Perry — The letter states there is a 21 day appeal period; it is unfortunate the ZBA did not receive this letter. Toole — Asked if the ZBA would be party to an appeal of MNH. Pucci — Not typically. This is an issue for the Select Board to take up since they requested the field survey. There is a separate appeal process that can be pursued by interested parties; suggested the ZBA stay within its jurisdiction. He's surprised the Select Board wasn't copied on this letter since they commented on MNH as part of the process. Freeman — First, a copy of the determination being sent to a board often happens in conservation related wetlands, which we don't have here. Second, Ms Cardoza did mention the letter in her presentation and it is referred to in the email stream. He doesn't think it's an issue in terms of the variance. He's trying to move this forward and he doesn't think that is happening. Toole — We wouldn't be talking about this if we had been given the letter. If we had received the letter, we would have moved off this issue a while ago. Freeman — That's not the point; this is not a local issue as confirmed by Mr. Pucci. He's requesting that the chair and public respect the way the law works. You can do any inquiry you want based upon Mr. Pucci's recommendations. We are now probably not going to be able to present elaborated plans as requested at the last hearing. Toole — It's a matter of perception and the perception is your client is hiding something or not giving it to us for some odd reason. That doesn't make sense to anyone. Freeman —There was no intentional withholding of the letter. All the important details were summarized and referred to by Ms Cordoza. McCarthy —The perception is based on the applicant stating they wanted to work with the Town and how good this would be for the Island. But, then we're getting plans via email at 6:30 p.m. the night before this hearing; we don't get the determination letter; as a result, that perception the applicant put forth at the beginning now doesn't ring true. Feeley — He had no idea that the letter had not been submitted; it was never discussed amongst our team. There is nothing in the letter they would want to hide. Cordoza — Stated she received a summary of the information in the letter via emails at 6:30 p.m. from Ms AntoniettL She included it in her presentation because it was pertinent to the discussion of rare species. Reminded the ZBA that Avalon was not allowed access to the site during the growing season when they could have determined if the plants were actually there. M.Perry — She thinks this discussion indicates that the ZBA write a letter to MNH to ensure they are included in the future. If the developer doesn't want a bad perception, allow the environmental consultants onto the property; the perception given is that they are hiding something. Taaffe — If the ZBA is acting as the Conservation Commission, endangered species falls within their jurisdiction. Pucci — There is no conservation jurisdictional issue involved. He covered this at the last hearing; he spoke with Jeff Carlson, Natural Resources Coordinator, who confirmed there was no wetland jurisdiction under State or Local bylaws. If there were an issue, the ZBA would act as the commission. M.Perry — It is in the determination, which the ZBA hasn't been able to read, that Miacomet Pond falls under the wetlands act. Madden — The reference to Miacomet Pond was attached to a moth, which is more associated with wetlands. Toole — Suggested tabling this issue for the next meeting to allow the ZBA to read and digest the letter, there seems to be some question. Asked for the applicant to present the revised plan. M.Perry — Asked if the revised plan was presented to Mass Housing or if the process is still going off the original plan. Freeman — Interim plans are not submitted; there is no back and forth during the 40B permitting process. It will be submitted at the end of the process. Toole — His perception of the process is that they have submitted a modification that we are going to review. Ultimately, there will be a final plan and that will be submitted. They can't put in a final plan until we have our discussions and get to a final plan. Page 7 of 8 ZBA Minutes for October 30, 2018, adopted Dec. 5 Feeley — Bracken will review the water and sewer and storm runoff; he and Mr. Bracken met with David Gray; summamed the discussion of the meeting which led to the plan to be presented this evening. The applicant's traffic consultant has meet with the Town Traffic Analyst and the Town traffic consultant details of this call have been summarized and included in documents submitted to the ZBA. Reviewed architectural changes Chris Dallmus made in response to Historic District Commission (HDC) concerns. Assured the sale of all condo units will be restricted to year-round Island residents. Bracken — Phase I is clearing the site and installing utilities and paving; Phase H would be construction of Condos, maintenance building, and recreation pool area; Phase III is the construction of the cottages and is broken up into two parts with the interior cottages being first. The condos have been moved to the back of the lot. Reviewed changes made in response to concerns by Chief Stephen Murphy, Fire Department, to allow access between buildings. The roads have been widened to allow parking in the road. Reviewed the drainage plan; runoff from the road will flow directly into raingardens then into subsurface leaching areas. Noted locations of irrigation wells. Noted one raingarden, in proximity to an abutter's well, will be sealed with no infiltration. The sewage will be handled by a gravity system as preferred by Mr. Gray. Reviewed the typical hardscaping around the cottages. Dallmus — Reviewed changes to the condo units made in response to concerns expressed at the October 31d hearing. There are 100 units broken up in 40 cottages and 60 condos. The original Type A and AA were replaced by a new Type A with porches and lower elements. Provided a rendering from South Shore Road to show the minimal visibility of the project from the road. There are eight accessible condo units; reviewed the three types of architecture of the condo buildings and how the architectural vernacular now reflects the ZBA and HDC concerns. The recreation building has not yet been designed and will be presented at a later date; it will be approx. 3,500 square feet and about 28 feet tall. The rear buildings have been re-sited to screen parking at the rear. Condos have been reduced in ground cover and reduced to five condo buildings. Discussion about the next hearing dates on November 27th and December 5th. Motion Motion to Continue to Tuesday, November 27 and Wednesday, December 5, 2018, at 4:30 p.m. Nantucket High School Auditorium. (made by: Koseatac) (seconded by: Mondani) Vote Carried unanimously Bamber — Asked when the ZBA will discuss the capacity of the sewage treatment plan. Toole — We will try to get to it. We have to discuss traffic and review the plan. Once that is done, we will get to the other issues: sewer, water quality, endangered species, MNH, waivers, etc. OTHER I. A,nc ADJOURNMENT Motion to Adjourn at 7:45 p.m. (made by: Koseatac) (seconded by: Mondani) Carried unanimously Submitted by: Terry L. Norton Page 8 of 8