Video: Conservation Commission Meeting of 3/12/09; Deadlock on Kohl Condo Proposal

Here is a Google video of most of the Conservation Commission meeting of 3/12/09. Only the portion that followed the Kohl hearing was not recorded. This video is 3 hours and 59 minutes long, and was recorded by Adam Cohen. Thanks to Steve Hathaway for transcription assistance. The portion of the meeting devoted to the Tofino Associates/Northern Avenue Homes/Kohl Construction condo hearing–3 hours and 18 minutes long–is also available on Vimeo.

Click for a brief summary of the outcome of the hearing, which ended in deadlock. Kohl is now attempting to withdraw his application before the commission takes a formal vote. The hearing was continued to 6pm on March 26 (City Hall Hearing Room, 210 Main Street, 2nd floor, Northampton, MA).

Here are the agenda items covered in the Google video:

Approval of Minutes for 02/26/2009

5:30 PM
Request for Determination of Applicability filed by the City of Northampton to determine whether the construction of an accessible link from the existing paved bike path to Jackson Street and the construction of a sidewalk from the bikepath to Barrett Street is subject to the Wetlands Protection Act and/or the Northampton Wetlands Ordinance. Project location is Jackson Street Map ID 24A-53, 24A-54, 24A-55 and 24A-237.

5:45 PM
Continuation of a Notice of Intent filed by Smith College for the relocation of a tennis court, creation of a synthetic playing field, and the paving of an existing gravel parking lot. Work is proposed to take place in Riverfront Area. Project location is College Lane at Smith College, Map Id 31C-15.

Video time 0:17:00…: Mike Kirby asks if commission members who do work for Smith will recuse themselves from voting on its projects. Conservation and Land Use Planner Bruce Young says “that’s a discussion we should have.” Commission Chair Kevin Lake says, “It’s a reasonable question.”

6:00 PM
Request for an Extension of an Order of Conditions by the City of Northampton, Office of Planning and Development for the construction of the Manhan Rail Trail-Earle Street to Easthampton Section. Work will take place in Riverfront Area and buffer zone of Bordering Vegetated Wetlands. Project location is 31D-245, 38C-76, and 44-57. DEP File #246-590.

6:15 PM
Continuation of a Notice of Intent filed by Tofino Associates, Inc. and Northern Avenue Homes, Inc. for the construction of twenty-five dwelling units and associated roadways, parking areas, driveways, sidewalks, utilities, landscaping and stormwater management system. Project is proposed to take place in the 100-foot buffer zone of Bordering Vegetated Wetlands. Project location is Northern Avenue, Map Id 25C-12 and 25C-17.

Video time 0:42:46…: Kohl hearing begins

2:59:37…: Public hearing on Kohl’s proposal is closed by a vote of the commission

Commissioner Paul Wetzel: “…I’m just going to say something, we’ve spent a lot of time listening… right now as this plan…I’m inclined to deny it. And its just because…if we were looking at whether this development has an impact on the wetlands, I think it’s going to have an impact on the wetlands. And, I see, a number of things, primarily the underground [detention basin] getting in the way of the hydrology connections underground…”

3:01:06… Wetzel: “…and the fact that everything is so close, and the people are…it just seems too crowded, and it seems like for a first project it’s not a precedent I want to set. Now, having said that, it’s not to say, I wouldn’t say, there shouldn’t be houses there. And I see a lot better potential up here because it’s higher ground. And I also want to say, and I say this with some regret, because I consider Mr. Kohl to be one of the most creative…and the most responsive and therefore, I think, the best developer…so it is with some regret that I say that, because they have done everything that we asked them to. They’ve moved things back, they’ve tuned things up, they’ve done all this other stuff… I’m also conscious of the fact that one of the main points of the [wetlands] ordinance was to get, however you want to define it…was to get people to develop, and build, inside urban areas. And to make them much closer to services, and I think that’s a very admirable goal.

“So, having said that, I also wanted to make a comment about the public’s comments. It seems to me…right from the very early start, that this has been a “not in my back yard” project. And, somewhat understandable.

“But we’ve had, we’ve had, all sorts of things thrown at us, like, just a litany of people coming up and saying how, how their basements are wet, like it was some sort of badge of honor and…I think a lot of the people that live along here on North Ave are, who back up against this wetland, and who are near this wetland…if the Conservation Commission went to those landowners now and said, demanded some of the things that have been demanded of the applicant, there would be, they would be screaming bloody murder… And we’ve had consultants come and tell us that if you cut down these…trees over here, that the water levels would be raised
2-1/2 to 3-1/2 feet.

“Just on, and on, and on. The real difference between the applicant, and the people that live there, is that the people that live there now got there first. They’re all pretty much on the wetland, in the wetland boundary, in the buffer area. So, a lot of, some comments were thoughtful, there were some local comments where I appreciated some of the knowledge, but, in the end, my decision didn’t really, it didn’t matter how many pictures were sitting over there of the wetlands and that sort of thing. So just to point that out, I appreciate all the time and effort, but, sometimes it was a little bit of a circus… Well, that is what I have to say, that’s my speech…”

3:11:40… Wetzel: “So to me, getting rid of these guys [points to condo units 1-10]…is a big help” because they are at a relatively low elevation close to the water table. He wants more room to be made for the development’s normal operations, such as snow clearing and snow storage. He believes that violations of wetlands protection covenants are likely to occur over time.

3:21:00… Kevin Lake says he would prefer a less dense project but says this is not enough to induce him to vote against the proposal based on the mandate of the commission.

Commissioner Downey Meyer: “So, I got involved with the wetlands ordinance being asked to come and watch a meeting of the CC. If I’d known then…but I did watch the process up close and see and participate in the public input then, and I really feel like my role as a Conservation Commissioner is to apply the ordinance as written in a way that reflects what the people of the City of Northampton wanted to happen to the wetlands, and also the interests that are affected by wetlands and development around wetlands. We were…given a letter by attorney Michael Pill [see brief from Pill], who is a very skilled practitioner in land use law, and it looked at an issue in the current ordinance that is problematic and as the discussion about the remediation and removal of the invasives plan revealed tonight, there is more than one thing in the ordinance that is problematic.

“And this is the conflict between a provision of the ordinance 337-10c, ‘Encourage infill development that generally has a smaller environmental footprint than development in outlying areas’–I’ll elide some of this–‘the commission hereby waives any of the 337-10 performance standards that are over and above state law except as provided in the subsection.’ So, one could read that as saying, that infill development, I’m sorry, did I say C? …B is the one that deals with Urban Residential B and Urban Residential C and waives those. You read further down, and in 337-10e-2 sub B: ‘the City’s general policy is no encroachment within 50 feet of wetlands. The commission may allow work within the 50 foot no-encroachment zone in response to a written request for a waiver, which shall include a written and plan view assessment as part of the application process as
follows: …projects in certain infill areas in accordance with Table 1 in 337-10 when development includes mitigation measures that will improve the existing conditions of the wetland or the adjacent upland areas, and is otherwise permissible under the Massachusetts Wetland Protection Act.'”

Meyer: “Attorney Pill’s argument was that in land use law, when there is ambiguous or conflicting positions, that the court would interpret the law in a way the favored the landowner’s common use, or, I’m sorry, common rights of use of the land. So that any restriction would be set aside. And his interpretation was that in this case, that the subsection 2, because it is more restrictive, and because it conflicts with the earlier provision, would have to be set aside.

“I’m not, I’m not in the position…I didn’t hold the cites, I didn’t make the cases…I don’t think he writes that memo lightly, and I think he would get up and vigorously argue it in court. I also know, there is no legal position on the face of the earth, that you will not find a lawyer to argue the other side of it, vigorously. And with hope of success.

“One of my first assignments in law school was to argue an absolutely miserable side of a moot court case… I felt that I had been given the short end of the stick, because the other side clearly had to win, and I had to spend a few weeks trying to figure out a way to argue this impossible case. The thing that I think is also important, and I don’t know, because I don’t know the law well enough in this area, is that in terms of the legislative history of this provision, Bruce told me that subsection 2 was added after the earlier section, and was added at the behest of environmental groups who felt that the ordinance was not protective enough. As written.

“So that, if the understanding of the people drafting the ordinance was that the more restrictive provision was added second in time, because the ordinance as drafted was not adequate, did not provide adequate protection, that leaves me as a…not as a judge, not as a lawyer…but as someone who is trying to follow the law as I see it written in front of me, and…give weight to what the people of the city wanted, that I think I can’t ignore subsection 2. And in that case, I need to look between 35 and 50 feet, and I need to say, does this project improve the conditions of the wetlands or the uplands. And that is why I was so interested in the possibility of mitigation throughout the entire wetlands.”

Meyer: “If that’s possible, then that is a significant benefit to the wetlands…that I weigh. If it is not possible, then what I have to look at is between 35 and 50 feet, or even up to the 10-foot boundary. I see the planting plan, and I think the planting plan is a significant benefit. I think that removing the invasives that are there, and planting species that are high value for habitat, and…food sources for birds and other wildlife is very important. But, I also see a lot of the grading…and a lot of disturbance of existing uplands. That is, there are non-native species, but they are functioning, as upland habitat, and I guess I also see…at the north end–and this is where it’s…interesting that Paul points this out that for him, this is the unproblematic part of the project, because it’s higher–…unit 21 that falls inside the 50-foot boundary”

Meyer: “…and I guess on balance…if I look at the grading, I look at the structure, and the small parts of the structures that are inside that, I can’t say to myself that this is improving the upland. And I don’t think I can argue…that development within 100 feet improves the wetland. If that was the case then I don’t think we would have a Wetlands Protection Act, because we could just develop within 100 feet and it would somehow…improve the wetland.

“I think you are hamstrung in this situation by the fact that you can’t, under this ordinance, do anything within the wetland to improve it. And, what you’re left with is this, 0 to 50 foot zone, which is very hard to do adequate mitigation to compensate for the significant amount of grading, and the conversion to…continuous human use for the rest of the future.”

Meyer: “Now…how would I change the plan to address this? …I think that for me, more significant than the grading…are the actual units that are built within the 50-foot boundary. So, you know, unit 21 seems to me like it’s…going to involve…the most disturbance of soil, and, and its going to be…it will be the human structure that will be in the boundary or in the buffer zone for good.

“…I don’t have to redesign it, but…I think that it’s fair to say that those things, again, if I’m speaking now because I’m trying to give some indication of why, I think it’s only fair to say that structures, I think that Mr. Kohl…made a very concerted effort to get almost all the structures outside the 50-foot boundary. I think that that’s a statement in his letter, in his latest letter…one of the things he has tried to do. I think there was a concerted effort to get the flood control, the stormwater management structures outside the 35-foot boundary. And so, as it stands…I can’t say that I see this as meeting the test of subsection 2.

“And if I could just say about…I think I was even one of the people who pointed out that this wetland was, had been degraded.
Obviously, it’s been near to a rail line for 100 years–a narrow gauge rail line. It’s been there for, I think the first train arrived from Boston in 1884.”

Meyer: “But at the same time, this is the wetland that the people living in this part of the city have. It’s their wetland. It might not look as beautiful as a pristine brook out in Mineral Hills that someone may have behind their house up there. But it is the wetlands that these people have…and I don’t think I can say that because it’s ugly now, because it has been abused, that lets just keep on, let’s keep on impacting it.

“So, I’ll echo what Paul said, I have been impressed throughout by the applicant’s willingness to work with the commission. To take into account…not just the input of the commission, but the input of the community, which has at times been, I don’t know if they’ve necessarily taken into account that flexibility that the applicant has shown, but right now as it, as it is submitted to me, I don’t think that it meets the test of the ordinance as I interpret it.”

3:45:39…: Commissioners Kevin Lake and Susan Carbin signal their inclination to approve the proposal. At 2-2, the commission is deadlocked. A majority vote is required to approve the proposal.

: Meyer: “This has been the problem with this project from the beginning… When the footprint of the project impinges on the wetlands, there’s no other place to do improvements… If you had the project heavily concentrated in one end of the site, going right to 35 feet, but nothing was happening down at the other end of the site, then there’s some place where you can do significant mitigation in the 35 to 50 foot zone… I don’t think that the difficulty is something that is set in stone. I think it’s generated to a certain extent by the design of the project.”

: Doug Kohl signals his desire to withdraw his application before a vote is taken. The commission is unsure if Kohl has the right to withdraw at this stage. (Bruce Young: “I’m unsure of it… It’s never happened since I’ve been here.”) The commission will seek the advice of the City Solicitor. The commission has 21 days to make a decision on the application. The hearing is continued to March 26 at 6pm.

See also:

News: Conservation Commission Balks at Approving Kohl Condo Proposal at
March 12 Hearing; Kohl Interested in Withdrawing Application

Valley Advocate: “Bogged Down – Doug Kohl runs into trouble with plans for his subdivision off North Street in Northampton”
Out in the boondocks, crowding wetlands might not have big
repercussions except to the beavers. Around the Industrial Park and
King Street you have big parking lots and huge buildings. You have a
lot of people living nearby with cellars. You risk having detention
structures that don’t work as engineers say they are going to. You are
risking flooding to nearby built-up neighborhoods when and if the 50-
and 100-year storms hit. Sixty feet from the Kohl detention pond there
are wetlands at 91 feet of altitude; the floor of the detention pond in
his first design was at 88 feet of altitude; there is a creek subject
to seasonal flooding not too far away. Will this detention structure
become a seasonal pond, breeding mosquitoes? Will it freeze over in
winter and let runoff go right into the swamp?

Watering-up: Studies of Groundwater Rising After Trees Cut
…”sites most susceptible to [hydrology] changes after clearcutting were
the transition ones between the bogs or fens and the uplands.” This
appears to describe well the land Kohl proposes to remove trees from.
An average rise on the order of 20 cm (7.9 inches) in the water table
is plausible. This could put unanticipated strains both on the
foundations of the condos and on the stormwater mitigation system, a
major component of which is underground. In addition, “the clear-cut of
riparian and other wetland vegetation may lead to
ecosystem conversion, i.e., to the encroachment…of
water-tolerant or of shallow-rooted invasive species.” Conservation and
Land Use Planner Bruce Young has shown a keen interest in controlling invasive species on Kohl’s land.

The phenomenon of groundwater rising after tree harvests is common enough to have its own term: “watering-up”…

Kohl Files Narrative and Drainage Report with Revised Condo Proposal; Interpreting the Wetlands Ordinance
…Attorney Pill leans hard on promotion of infill in justifying his
interpretation of the Wetlands Ordinance. Here is how the Notre Dame
School of Architecture defines “infill” in Envisioning Sustainable Northampton:

noun – new development on land that had been previously developed,
including most greyfield and brownfield sites and cleared land within
urbanized area. verb- to develop such areas.” (page G3)

This definition is not a good fit with most of Kohl’s land off North
Street. This land is largely undeveloped and uncleared, and currently
contains just one single-family house (8 View Avenue). It also contains one of downtown’s few remaining groves of mature trees and buffers a wetland. Responsible–sustainable–infill should not be interpreted as a license to pave over a city’s green infrastructure.

Video: Kohl Presents Revised Proposal to Conservation Commission on February 26

Planning Board Gives Initial Critique of Kohl Condo Proposal: Jan 22 Video

Conservation Commission Meeting of 1/22/09; Non-Compliance with
Wetlands Protection Agreements; Kohl Asked to Revise Condo Proposal

Gazette Reports on January 22 Kohl Condo Hearings; Pictures of the Latest Proposal; Conservation Staff Report; HYLA Critique

Kohl Submits Revised Proposal Ahead of January 22 Hearings; Modest Concessions to Conservation Commission

Video of December 11 Kohl Condo Hearing at Conservation Commission; Hearing Continued to January 8

Kohl Construction Applies for Special Permit and Site Plan Review