HomeMy WebLinkAboutBetta Supplemental NOI Review Letter - 35 Scudder Ave - 12Sept23
BETA GROUP, INC.
89 Shrewsbury Street, Suite 300, Worcester, MA 01604
P: 508.756.1600 | W: www.BETA-Inc.com
September 12, 2023
Barnstable Conservation Commission
230 South Street
Hyannis MA 02601
Re: 35 Scudder Avenue, Hyannis, MA
Notice of Intent Application Review #2
DEP File No: 003-6124
Members of the Barnstable Conservation Commission,
BETA Group, Inc. (“BETA”) was engaged by Save Twin Brooks, Inc. 1 to provide a supplemental review the
Notice of Intent (“NOI”) Application and associated materials submitted to the Barnstable Conservation
Commission (BCC) on and dated August 21, 2023 by Pesce Engineering and ILEX Environmental, Inc on
behalf of Quarterra Multifamily Communities, LLC (“Applicant”). This NOI Application was submitted to
the BCC regarding a new multi-family residential community at 35 Scudder Avenue in Hyannis,
Massachusetts (the Site) and was discussed before the Barnstable Conservation Commission during the
September 5, 2023 hearing. This supplemental letter presents BETA’s review findings for the Barnstable
Conservation Commission’s consideration in their decision on the NOI Application.
BASIS OF REVIEW
BETA reviewed the NOI Application, which included the following:
• Notice of Intent, Emblem-Hyannis, 35 Scudder Avenue, Barnstable, Massachusetts– dated August 21,
2023 – including:
o WPA Form 3, dated August 7, 2023.
o Project Description & Design Narrative.
o Emblem-Hyannis Restoration Plan, Barnstable, Massachusetts, dated December 8 , 2022,
prepared by ILEX Environmental, Inc.
o Nitrogen Loading Calculations, dated April 22, 2021, prepared by Pesce Engineering Associates,
Inc.
o Wetland Delineation Forms, dated July 7, 2023.
o Isolated Land Subject to Flooding Calculations, dated June 18, 2023, prepared by Pesce
Engineering Associates, Inc.
• Civil Engineering Plans titled The Proposed Emblem at Hyannis Residences, 35 Scudder Avenue,
Hyannis, Massachusetts (20 Sheets), prepared by Pesce Engineering & Associates, Inc., signed and
stamped by Edward L. Pesce, P.E., dated February 11, 2021, revised through August 1, 2023.
• Landscape Plans titled Emblem Hyannis, 35 Scudder Avenue, Hyannis, Massachusetts (10 Sheets),
prepared by Michael D’Angelo Landscape Architecture, LLC, signed and stamped by Michael D’Angelo,
R.L.A., dated March 1, 2021, revised through October 21, 2022.
• Stormwater Report titled Drainage Analysis Report, Emblem Hyannis, 35 Scudder Avenue, Hyannis,
Massachusetts, prepared by Pesce Engineering & Associates, Inc., signed and stamped by Edward L.
Pesce, P.E., dated October 11, 2022, revised through August 7, 2023.
1 Save Twin Brooks, Inc. represents a group of Barnstable citizens advocating to save the 40 -acre property at the
Twin Brooks as an open space preserve for conservation and community use.
September 12, 2023
Page 2 of 4
SUPPLEMENTAL REVIEW FINDINGS
Based on BETA’s review of the above referenced materials, and in response to discussions that occurred
during the September 5, 2023 hearing, BETA offers the following additional comments for the BCC’s
consideration.
STORMWATER MANAGEMENT DESIGN
The Project is subject to the Massachusetts Stormwater Standards (the Standards) as outlined by
MassDEP. Stormwater management systems must be designed to incorporate “Best Management
Practices” (BMPs) and Stormwater Control Measures (SCMs) as prescribed by Massachusetts Stormwater
Standards and Handbook.
As discussed in BETA’s September 5, 2023 review letter, the Applicant has not demonstrated that the
stormwater design meets the Massachusetts Stormwater Standards or was that the system was designed
in accordance with the Handbook.
ISOLATED VEGETATED WETLANDS (IVW)
WETLANDS PROTECTION ACT (310 CMR 10.00) AND BARNSTABLE WETLANDS PROTECTION BYLAW (CHAPTER 237)
The NOI narrative argues that because the wetlands are supported hydrologically by stormwater and
irrigation, they should not be considered jurisdictional under Chapter 237.
The Bylaw definition of “Vegetated Wetlands” is:
“Any area of at least 500 square feet where surface or ground water, or ice, at or near the surface of
the ground support a plant community dominated (at least 50%) by wetland species.”
The definition of “Surface Water” under 310 CMR 10.00:
“means all waters other than ground water within the jurisdiction of the Commonwealth including,
without limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries, wetlands, and
coastal waters.”
The definition of “Waters of the Commonwealth” under 310 CMR 10.00:
“means all waters within the jurisdiction of the Commonwealth, including without limitation, rivers,
streams, lakes, ponds, springs, impoundments, estuaries, wetlands, coastal waters and ground
waters.
The definition of “Freshwater Wetlands” under the Wetlands Protection Act (MGL c. 131, § 40) means:
“wet meadows, marshes, swamps, bogs, areas where groundwater, flowing or standing surface water
or ice provide a significant part of the supporting substrate for a plant community for at least five
months of the year; emergent and submergent plant communities in inland waters; that portion of
any bank which touches any inland waters
As noted above, the term “Freshwater Wetlands” means “… areas where groundwater, flowing or
standing surface water … provide a significant part of the supporting substrate for a plant community for
at least five months of the year” (emphasis added). There is no exclusion of jurisdiction for wetlands
supplied with sufficient hydrology to support the substrate for a wetland plant community through
overland flow.
Based on the above definitions presented in the Wetlands Protection Act and at 310 CMR 10.00, the onsite
IVWs would be considered freshwater wetlands, and accordingly, Waters of the Commonwealth. Further,
September 12, 2023
Page 3 of 4
because there is no exclusion in the surface water definition for overland flow, the onsite IVWs are
protected as Vegetated Wetlands under the Bylaw as long as they meet the area criteria.
Under the Barnstable Wetlands Protection Bylaw, only 2,500 sf of wetlands may be filled, and the Project
appears to fill approximately 4,900 sf of IVW with no replication or mitigation proposed for the wetland
fill.
MA CLEAN WATER ACT – 314 CMR 9.00
As noted above, the onsite IVW’s are considered “Waters of the Commonwealth”, and are therefore
subject to jurisdiction under the MA Clean Water Act and its regulations at 314 CMR 9.00.
The MA Clean Water Act defines an “Isolated Wetland” as “Vegetated areas subject to jurisdiction under
33 U.S.C. 1251 that are not bordering vegetated wetlands subject to jurisdiction under M.G.L. c. 131, § 40
and 310 CMR 10.55(2): Definition, Critical Characteristics and Boundary”. Based on the definition of
Isolated Wetlands above, a Jurisdictional Determination from the USACE is required to determine if the
onsite IVWs are Subject to Jurisdiction under the State and Federal Clean Water Acts in relation to the
Sackett Case.
Notwithstanding the classification of the onsite IVWs as Isolated Wetlands under the MA Clean Water Act,
the IVW’s are still considered surface waters and Waters of the Commonwealth. Per 314 CMR 9.06(5), fill
of Waters of the Commonwealth is not permitted for “the impoundment or detention of stormwater”.
The Project is proposing to fill IVWs and convert portions of both IVWs into Bioretention Area 3.
RIVERFRONT AREA
An Alternatives Analysis was provided in the NOI narrative as required under 310 CMR 10.58(4)(c);
however, the Analysis requires additional information to confirm that the currently proposed Project is
the preferred alternative when taking into consideration “costs, existing technology, proposed use, and
logistics, in light of overall project purposes” (310 CMR 10.58(4)(c)1.).
Section 5.3.1.1 Costs indicates that “Given the cost of acquiring the Site and the required annual
maintenance costs, it is unlikely that a less-dense residential community as proposed would be
economically feasible” (emphasis added) which is further discussed in Section 5.3.2.4 Alternative Lower
Density Residential Design. Both sections indicate that other alternatives to the proposed Project are not
economically feasible, but do not provide supporting calculations or a cost analysis to support this
conclusion.
Section 5.4 No Significant Adverse Impact indicates that “the stormwater basins need to be located at a
lower elevation than the proposed development in order to function properly. For this Site, the lower
elevations are located along the slopes that are located within the Riverfront Areas. For this reason, there
are no practicable alternatives for locating the stormwater basins outside of the Riverfront Area”. This
statement does not present any alternatives to the location or proposed treatment facilities proposed for
the design within the Riverfront Area. Furthermore, Section 5.3.2.2 Existing Technology indicates that
“Relative to stormwater best management practices, the stormwater management system has been
designed with the latest technology including bioretention areas, deep sump catch basins, and the latest
rainfall data used to design for the 100- year storm event”. Both Sections indicate that there are no
practicable alternatives to the proposed stormwater management system, and that the latest
technologies are being proposed; however, no supporting information or stormwater management
alternatives have been provided to verify these assertions – including an evaluation of subsurface
infiltration systems, which may be able to eliminate basins from the Riverfront Area and could disperse
infiltration throughout the Site, rather than concentrate infiltration in two locations.
September 12, 2023
Page 4 of 4
CONSERVATION RESTRICTION (CR)
The NOI Narrative states that 21.94 acres of land at the Site will be placed in a Conservation Restriction ,
nearly all of which is made up of Resource Areas and the associated buffer zones.
The Applicant has presented protection of an approximately 22-acre Conservation Restriction (CR) as
mitigation for the Project. Based on approximate calculations, at least 8.25 acres is within streams, ponds,
and wetlands. Additionally, at least an additional 3 acres is below the 100-Year Flood Elevation and the
Limit of Moderate Wave Action. No portion of the proposed CR is outside the Jurisdiction of the Wetlands
Protection Act or the Jurisdiction of the Bylaw. Therefore, development of these areas would extremely
limited regardless of the CR.
SUMMARY
BETA respectfully requests that the Barnstable Conservation Commission include these comments in the
record of review for this NOI Application and consider BETA’s comments during deliberation on this
matter. Should you have any questions on the comments provided, please do not hesitate to contact us.
Very truly yours,
BETA Group, Inc.
Laura Krause
Project Manager Senior Project Manager
e-cc: Brian Hughes, Save Twin Brooks, Inc.
Nathaniel Stevens, Esq., McGregor, Legere & Stevens PC
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Review Letter - 35 Scudder Ave - 03Mar2022.docx