2022-04-07: Conservation Commission

Click timestamps in the text to watch that part of the meeting recording.

Swampscott Conservation Commission Meeting Review: April 7, 2022

1. Agenda

Based on the transcript, the likely agenda items discussed were:

  1. Public Hearing: Notice of Intent (NOI) DEP #071-0349: 10 Whitman Rd – New Elementary School 0:00
    • Review of project history, peer review status (Lyndon report), legal opinions (KP Law re: easement), and consultant responses (LEC Environmental).
    • Discussion of specific issues (e.g., potential wetland delineation near church parking lot, DEP confirmation). 2:41, 7:00
  2. Commission Discussion & Clarifications on NOI 7:00
  3. Public Comment Period on NOI 9:32
    • Questions and comments from residents regarding buffer zones, setbacks, habitat impacts (vernal pool, wildlife), stormwater management, tree removal, blasting, jurisdictional limits, and traffic/emissions (though largely deemed outside ConCom scope).
  4. Discussion and Modification of Proposed Order of Conditions 1:13:37
    • Review and refinement of specific conditions proposed by the peer reviewer and Commission, including adding conditions related to tree cutting approval and a potential future natural barrier.
    • Applicant request for clarification/modification of Conditions 44 (generator) and 46 (dumpsters).
  5. Motion and Vote on NOI #071-0349 1:12:21, 1:20:13
  6. Adjournment 1:22:06

(Note: Approval of past minutes and “Other business” listed in the metadata agenda were not audibly addressed in the provided transcript portion focused on the NOI hearing.)

2. Speaking Attendees

  • Tony Bandewitz (Conservation Commission Chair): [Speaker 1]
  • Project Representative (Applicant Team - Likely Consultant): [Speaker 2]
  • Angel Fagundo (Resident, 184 Forest Ave): [Speaker 3]
  • Betsy Burns (Resident, Abutter): [Speaker 4]
  • Conservation Commission Member: [Speaker 5] (Potentially Randall Hughes, but attribution uncertain)
  • Martha Caesars (Resident, 80 Mason Road): [Speaker 6]
  • Project Representative/Town Staff: [Speaker 7]
  • Randall Hughes (Conservation Commission Member): [Speaker 8]
  • Ted Smith (Resident, Coyote Road?): [Speaker 9]
  • Monica (Conservation Commission Member): [Speaker 10]
  • Applicant Representative (Project Team/Counsel?): [Speaker 11]
  • Resident (Name not stated): [Speaker 12]
  • Marissa (Town Staff/Conservation Agent?): [Speaker 13]
  • Bill (Peer Review Consultant - Lyndon Rep): [Speaker 14]
  • Resident (Name not stated): [Speaker 15]
  • Conservation Commission Member: [Speaker 16] (Present, possibly voted, name unclear)
  • Meeting Attendee (Unidentified Role): [Speaker 17]

3. Meeting Minutes

Meeting: Swampscott Conservation Commission Date: April 7, 2022 (Inferred from transcript context and metadata title) Subject: Public Hearing & Decision on Notice of Intent (NOI) DEP #071-0349, 10 Whitman Rd (New Elementary School)

1. Opening and NOI Review 0:00 Chair Tony Bandewitz opened the continued public hearing for the NOI regarding the proposed new elementary school at 10 Whitman Road. He provided a detailed history of the review process, noting submissions from the applicant (Town of Swampscott c/o Max Kasper), the Commission’s peer reviewer (Lyndon), and the applicant’s consultant (Nietzsche/LEC Environmental). Key points summarized included:

  • Lyndon’s finding that the applicant’s responses addressed initial comments, subject to conditions. 1:10
  • Lyndon proposed 22 general and 52 special conditions for consideration. 1:24
  • Receipt of legal opinions from Town Counsel (KP Law) stating the Town held sufficient legal interest in the UU Church easement, negating the need for a church signature on the NOI. 1:56
  • Resolution of a potential wetland delineation issue near the church parking lot; the applicant’s consultant (LEC) determined, reportedly confirmed verbally by MassDEP analyst Pam Merrill, that the area was non-jurisdictional upland created for stormwater management. 2:41, 3:28

2. Commission Discussion & Clarifications 7:00 The Project Representative confirmed LEC spoke with Pam Merrill at DEP regarding the non-jurisdictional area. Chair Bandewitz requested formal documentation from DEP for the record. The Project Representative stated the applicant would request it, and Chair Bandewitz affirmed the Commission would also follow up 7:41. A Commission Member ([Speaker 5]) asked for clarification on the non-wetland determination, which the Project Representative explained based on its history as a documented upland stormwater feature [8:16 - 9:20].

3. Public Hearing and Comment [9:32 - 1:12:04] Chair Bandewitz opened the hearing to public comment, reminding attendees of the Commission’s jurisdiction under the Wetlands Protection Act (WPA), primarily focused on resource areas and the 100-foot buffer zone. Observation: Significant public participation followed, with residents raising numerous questions and concerns.

  • Buffer Zone Interpretation: Angel Fagundo 10:00 and Betsy Burns 14:02 questioned how the large project could proceed so close to wetlands, probing the meaning of buffer zones and setbacks. Chair Bandewitz and the Project Representative repeatedly clarified that the 100-foot buffer grants jurisdiction for review and conditioning, but does not automatically prohibit construction [10:26, 11:49, 15:49, 17:05]. Observation: Public understanding of the buffer zone’s regulatory function versus being a strict no-build zone appeared to be a key point of confusion.
  • Habitat and Wildlife: Ted Smith 19:14 argued the buffer zone serves as essential habitat and would be impacted. Betsy Burns 36:10 contested the finding of no endangered species, citing observed salamanders and spring peepers near the Ewing Woods vernal pool. Chair Bandewitz clarified the WPA buffer’s primary purpose isn’t designated habitat preservation 20:34 and the Project Representative noted official maps showed no listed endangered species, while highlighting design efforts to maintain water flow to existing wetland habitats 38:13. A Commission Member ([Speaker 5]) added that stormwater treatment addresses water quality concerns 39:20.
  • Vernal Pool Proximity: Betsy Burns 14:02 expressed concern about the proximity of construction to the uncertified vernal pool in Ewing Woods. Chair Bandewitz acknowledged the pool’s importance and stated the work is within the buffer zone, necessitating the Commission’s review and conditions to ensure protection [14:52, 34:00].
  • Site Plans and Access: Several questions arose regarding specific site plans, the location of work relative to the vernal pool path, Forest Ave Extension access, and Ewing Woods conservation land [22:01 - 31:37]. The Project Representative and Project Representative/Town Staff used maps to clarify that work, including the emergency/bus access connection, would remain on school property or within existing paved areas, outside of Ewing Woods proper [25:14, 29:33, 33:40]. Observation: Clarifying the precise limits of construction and access routes relative to sensitive areas was a recurring need during the public comment period.
  • Tree Removal: A resident ([Speaker 12]) asked specifically about tree removal near the Ewing Woods path [59:20, 1:04:12]. Commission Member Monica recalled being told minimal trees would be cut 59:33. The Project Representative indicated trees on school property might be removed, particularly brush in the NW corner, but care would be taken near property lines and resource areas [1:00:09, 1:05:02]. Observation: This discussion directly led to the proposal of a new condition requiring Commission review before tree cutting.
  • Stormwater Management: Angel Fagundo questioned the impact of increased impervious surfaces 51:22. The Project Representative acknowledged the increase but detailed the comprehensive stormwater management system designed with underground detention and filtration to meet modern standards for volume, rate, and quality [51:49, 52:25].
  • Blasting: A resident ([Speaker 15]) asked if blasting impacts fell under ConCom jurisdiction 40:26. Chair Bandewitz clarified that blasting permits are handled by the Select Board via the Earth Removal Advisory Committee (ERAC), but the ConCom reviewed potential impacts to resource areas (e.g., wetland integrity) and the peer reviewer included monitoring conditions 40:33. Marissa (Staff) noted an upcoming ERAC meeting 41:28.
  • Issues Outside Jurisdiction: Martha Caesars 44:59 and Angel Fagundo 48:58 raised concerns about traffic congestion and car emissions impacting climate and health. Chair Bandewitz and Commission Member Hughes stated these fell outside the WPA and the Commission’s authority [46:07, 47:13, 49:54]. Observation: This highlighted a persistent dynamic where residents brought broader environmental and community concerns to a body with legally constrained jurisdiction.
  • Process and Scope Questions: Angel Fagundo expressed disappointment, questioning if the peer review process adequately challenged the project’s suitability for the location from a wetlands perspective 1:08:56. Chair Bandewitz and Commission Member Hughes strongly defended the process, emphasizing the peer reviewer’s critical role and the Commission’s focus on ensuring WPA compliance for the proposed project, not site selection [1:09:11, 1:10:03, 1:10:52]. Chair Bandewitz stressed the Commission’s diligence and seriousness in applying the WPA 1:03:11.

4. Oversight and Conditions Monitoring 57:12 In response to questions from Betsy Burns about ensuring compliance with the numerous conditions, Chair Bandewitz outlined the Commission’s oversight role, including site visits, required reporting from the applicant (Town), and the perpetual nature of some maintenance conditions 57:36.

5. Hearing Closure, Motion, and Condition Modifications [1:12:21 - 1:20:06] The public hearing was closed 1:12:21. Commission Member Monica moved to approve the NOI with all conditions proposed by the peer reviewer and the Commission 1:12:53. Chair Bandewitz added two conditions to the motion:

  • Commission site review and approval prior to any tree cutting within the buffer zone [1:13:13, confirmed 1:20:42].
  • Commission retains authority to require a natural buffer between the school site and Ewing Woods post-construction if deemed necessary 1:13:27.

The Applicant Representative ([Speaker 11]) requested modifications 1:13:37:

  • Condition 44 (Special): Clarify inclusion of the generator among acceptable fuel storage, provided it meets safety standards. After discussion with Peer Reviewer Bill 1:18:47, modified to specify requirement for a double-wall tank with leak detection 1:19:44.
  • Condition 46 (Special): Modify language regarding dumpsters in the buffer zone from “enclosed in a structure” to simply “enclosed,” reflecting the planned walled service area [1:14:55, 1:16:41]. These modifications were accepted. An error referencing “Linfield” was noted for correction in the final document [1:15:27, 1:21:49].

6. Vote 1:20:13 The motion to approve NOI #071-0349 with the peer reviewer conditions, the two added conditions, and the agreed-upon modifications to conditions 44 & 46 was seconded 1:21:10. Roll Call Vote:

  • Tony Bandewitz (Chair): In Favor 1:21:22
  • Randall Hughes (Member): In Favor 1:21:25
  • Monica (Member): In Favor 1:21:31 (Motion passed; likely unanimous among voting members present).

7. Adjournment 1:22:06 The meeting was adjourned following a motion and vote.

4. Executive Summary

The Swampscott Conservation Commission concluded its review of the Notice of Intent (NOI) for the new elementary school project at 10 Whitman Road, voting to approve the project under the Massachusetts Wetlands Protection Act (WPA) 1:20:13. This decision allows the school construction to proceed from a wetlands perspective, but includes significant oversight and requirements.

Key Outcomes & Significance for Residents:

  • Project Approved with Extensive Conditions: The Commission approved the NOI, issuing an Order of Conditions (permit) that incorporates over 70 specific requirements [1:24, 54:24]. Developed with input from an independent peer reviewer (Lyndon/Bill), these conditions aim to protect nearby wetlands (including those near the UU Church and bordering Ewing Woods) and the uncertified vernal pool during and after construction. Why it matters: These legally binding conditions dictate how the Town must manage stormwater runoff (using advanced filtration and detention systems 52:25), control erosion 34:00, monitor blasting effects near wetlands 42:11, handle fuel storage 1:18:47, manage waste 1:16:41, remove invasive species 1:02:05, and ensure long-term maintenance of environmental protection systems 57:36. The large number of conditions reflects the project’s scale and environmental sensitivity.
  • Buffer Zone Work Permitted: The Commission confirmed that work within the 100-foot buffer zone of wetlands is permissible under the WPA, provided performance standards are met through conditions [10:26, 17:05]. Much of the school site falls within buffer zones. Why it matters: This clarifies that proximity to wetlands doesn’t automatically halt development, but triggers strict regulatory review and mitigation requirements.
  • Specific Environmental Concerns Addressed: The Commission and its peer reviewer specifically addressed concerns raised about potential wetland impacts. A disputed wetland area was deemed non-jurisdictional stormwater management [2:41, 8:33]. Protections for the Ewing Woods vernal pool area were incorporated via conditions 34:00. Measures to maintain water flow to habitats 38:13 and manage significantly increased stormwater runoff from new pavement and roofs were detailed 52:25. Tree removal within the buffer zone will require Commission pre-approval [1:13:13, 1:20:42]. Why it matters: The approval indicates the Commission believes these specific measures adequately address potential harms to the regulated resource areas under state law.
  • Jurisdictional Limits Defined: Chair Bandewitz and commissioners repeatedly emphasized that their authority is limited by the WPA to protecting specific resource areas (wetlands, banks, etc.) and ensuring work in buffer zones doesn’t harm them [46:29, 1:03:11]. Why it matters: Many resident concerns about traffic, emissions, climate change impact, and overall site suitability [44:59, 48:58], while important community issues, fall outside the Conservation Commission’s legal power to regulate under the WPA. These issues must be addressed through other town bodies (like Planning Board, Select Board, Board of Health, ERAC).
  • Ongoing Oversight: The Commission will monitor compliance through required reports from the Town, site inspections, and conditions that last indefinitely for maintenance of systems like stormwater management 57:36. Why it matters: This provides a mechanism for accountability, although resource constraints on volunteer boards are always a factor in enforcement capacity.

In summary, the Conservation Commission found that the new school project, as conditioned, meets the requirements of the state Wetlands Protection Act. While significant public concerns remain about broader impacts, the Commission’s decision was based on its specific legal mandate regarding wetland resource protection.

5. Analysis

This Conservation Commission meeting provided a clear case study in the application of the Massachusetts Wetlands Protection Act (WPA) to a large, complex, and locally scrutinized project. The dynamics observed reveal both the strengths and limitations of this regulatory framework.

  • Strict Adherence to Jurisdictional Boundaries: The Commission, led effectively by Chair Bandewitz, demonstrated a disciplined adherence to its legal mandate under the WPA [10:26, 17:05, 46:29, 1:03:11]. Arguments from the public concerning traffic emissions 44:59, overall site suitability 1:08:56, or habitat function beyond defined resource areas 19:14 were acknowledged but consistently ruled outside the Commission’s purview. Analysis: While legally correct and necessary for defensible decision-making, this strict focus created a disconnect with residents seeking a forum for holistic environmental and community impact assessment. The WPA process, as implemented here, appeared effective at addressing specific wetland/buffer zone impacts but ill-suited to resolving broader anxieties about the project’s overall fit within the neighborhood and town.
  • The Power and Perception of Peer Review: The Commission placed significant weight on the findings and recommendations of its peer reviewer (Lyndon/Bill) [0:00, 54:24, 59:08]. The detailed list of 70+ conditions stemmed largely from this independent technical assessment. The reviewer’s role in validating the applicant’s technical proposals and suggesting mitigation strategies provided the Commission with the necessary assurance to approve the project within WPA guidelines. Analysis: This highlights the critical function of peer review for volunteer commissions facing complex engineering and environmental data. However, the comment by Angel Fagundo 1:08:56, suggesting the process felt like an exercise in enabling the project rather than fundamentally questioning its wetland compatibility, points to a potential public perception challenge. The process focuses on mitigating impacts to meet legal standards, which can appear to prioritize project advancement over absolute avoidance, even if avoidance isn’t legally required or feasible within the Commission’s scope.
  • Applicant Strategy: Technical Compliance: The applicant’s representatives ([Speaker 2], [Speaker 11]) presented a case centered on technical compliance with WPA regulations and responsiveness to the peer review [e.g., 8:33, 42:11, 52:25]. They capably fielded technical questions and demonstrated willingness to refine conditions [1:14:21 - 1:19:54]. Analysis: This strategy aligned perfectly with the Commission’s jurisdictional focus and proved effective in securing approval. By concentrating on demonstrating how the project met performance standards through engineered solutions and mitigation measures, they successfully navigated the WPA review process.
  • Commission’s Balancing Act: The Commission members navigated a difficult path between regulatory requirements and public pressure. They engaged with public concerns, leading to tangible additions like the tree review condition 1:13:13 and the retained right to require a future buffer 1:13:27. Their reliance on the peer reviewer and the extensive conditions ultimately allowed them to conclude that the project, while impactful, could be executed without violating the WPA 1:20:13. Analysis: The Commission fulfilled its statutory duty. The outcome suggests that, within the confines of the WPA, the engineering solutions and mitigation measures proposed were deemed sufficient to protect the specifically regulated resource areas. The extensive conditions represent the Commission leveraging its authority to impose stringent safeguards, arguably pushing the project towards better environmental performance than might have occurred without such scrutiny. However, the meeting also underscored that WPA approval does not equate to broader community consensus or endorsement of the project’s overall wisdom or impacts.