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HomeMy WebLinkAbout1984-04-18 Board of Survey Minutes Board of Survey Meeting of April 18, 1984 Page 1 A meeting of the Board of Survey convened in the second floor conference room of the Reading Public Library, 64 Middlesex Avenue at 7:00 P.M. Present were Chairman Barker, Secretary Hampson, Board Members Wood and Polychrones, Superintendent Anthony V. Fletcher, and Assistant Superintendent William R. Bergeron. Mr. Hampson read the Notice of Public Hearing at 7;00 P.M. regarding the approval, disapproval or modification of plans for a subdivision located off Haverhill Street near Field Pond Drive and Rustic Lane. There were eight abuttors present. Chairman Barker introduced the members of the Board and the Department. Mr. Peter Ogren, Engineer for the applicant, from Hayes Engineering Inc. made the presentation. He stated the subdivision is the addition of 530 feet of street to be called "Clover Circle" off of Haverhill Street. There will be ten lots on a new street and two lots on an existing street. This is actually the remaining area of the Small Farm. There would also be created two lots (A&B) which will occur on Field Pond Drive itself. He stated the Board of Survey looked at connecting this to Field Pond Drive. Preliminary meetings and discussions dealt with the possibility of connecting Clover Circle to Field Pond Drive and we felt we should come in with an alignment that terminates in a cul-de-sac. From a I utility standpoint, we propose to extend the water from the existing water main on Haverhill Street through an easement to Field Pond Drive. There is existing sewer on Haverhill Street and the proposal calls for a connection to an existing manhole. Board of Survey Meeting of April 18, 1984 Page 2 Regarding drainage, what is proposed after a series of hydraulic analyses is to construct a new set of catch basins within the proposed roadway layout. They would be connected to a 12" pipe and discharged into a proposed retention area. We will lower the floor of the basin itself and create a discharge system into the drainage manhole into Haverhill Street. This drainage system has been designed to achieve what we feel is no increase in the rate of runoff off the site itself. He stated the terms of this are contained in a lengthy hydraulic study given to the Board, but at least in terms of our calculations, we have been able to achieve these results. On the existing conditions, there is not a lot of outflow that occurs. In the proposed condition we are not asking to have a permanent ponding area. This discharges into an approximately 720 acre watershed which is the Cedar Swamp. Mrs. Woad asked what do you mean by lowering the floor of the i basin? Mr. Ogren replied there is no existing outfall. We will be excavating about one and one-half feet. Mrs. Wood asked what kind of protection is there for overland flow to the abuttors? Mr. Ogren replied if there was not sufficient storage, the water will flow in a southeasterly direction which will actually flow out onto Haverhill Street before it would touch the house. Mrs. Wood asked what kind of a slope are you talking about? Mr. Ogren replied a 2: 1 slope which is a normal road grade. Mr. Jahn A. Tarello of 25 Rustic Lane asked what about water problems occuring in my basement? Board of Survey Meeting of April 18, 1984 Page 3 Mr. Ogren replied I am confident this will discharge onto Haverhill Street. Assistant Superintendent Bergeron stated we modified the inlet structure on the final plan. Mr. Ogren stated that is correct, we have provided two inlets as a back-up means of discharge. Mr. Curt Nitzsche of 453 Haverhill Street stated he is concerned about the water going across the street to his land. The base of the pond was mentioned at 78.6 feet. There is now going to be a drainage pipe which is going to be lower than the existing level of the pond. The water is going to go right across the street. I think you would be actually changing the level of the pond by one foot. Mr. Ogren stated the area we are looking at does not appear to be a pond by DEN regulations. I believe this pond dries up completely in the summer. Even in the 100 Year Storm the total increase would be insignificant to what you stated. We think this is the only place the water can go and feel the applicant has controlled the rate of run-off from this site. It is unlikely the discharge would be consistent with the maximum outflow from the Cedar Swamp Area. A 12" inlet pipe with an 80 discharge will be installed with the express purpose of trying to retard the outflow. There is also a catch basin to be installed in this area. Charlie Costello, Conservation Commission Administrator, stated Reading does have a local wetlands by-law which takes into consideration Mr. Nitzsche's problem. In response to Charlie Costello, Attorney Brad Latham stated I think there is a question of relevance concerning this Board. It was moved, seconded and voted 4:0 to close the Hearing at 7:48 P.M. Board of Survey Meeting of April 18, 1984 Page 4 ' It was moved, seconded and voted 4; 0 to approve the Definitive Plan of Clover Circle as submitted. Mr. Hampson read the Notice of Public Hearing at 8;08 P.M. regarding the approval, disapproval or modification of plans for a subdivision located off Avalon Road within an area approximately bounded by West Street, Whitehall Lane, Pine Ridge Road, Oak Street and Countryside Lane. Chairman Barker introduced the members of the Board and Department, Peter Ogren of Hayes Engineering, (Engineer for the applicant), Aurele Cormier, applicant, and John Kimball of Kimball & Kimball (attornies for the applicant). There were approximately 60 residents present. Chairman Barker read three pieces of correspondence into the record (attached) from the Board of Health, Conservation Commission and Attornies Kimball & Kimball. Mr. Ogren of Hayes Engineering stated this is the proposed construction of two new roadways, one is an Avalon Road extension and the second is an un-named roadway of 940 feet. He stated at the preliminary hearing there was discussion of traffic problems created by this new subdivision on West Street. Because of the traffic problems it was determined by the applicant to design this as two permanent dead end streets. There will be 32 lots in the subdivision itself and three lots on West Street. The applicant feels that the traffic to be generated by these 32 houses is not significant enough to change the character of the residential area. The other major issue that seemed to occur was one of drainage. Water and sewer is available and will be provided. Board of Survey Meeting of April 18, 1984 Page 5 ' Hydraulically this area drains from the Hest to the East and is characterized by one major flow which extends out of Countryside Lane in an easterly direction through a 12" pipe into Pine Ridge Road. Our analyses indicate that there is adequate drainage in this area. The applicant proposes to place a retention pond in the easterly portion of his property. This situation was somewhat complicated in that residents responded as to insufficient downstream flooding protection and that greater study should be done to determine the hydraulics. The applicant obtained an easement from an adjoining landowner to create the proper outflow. There was a 20" pipe placed under Pine Ridge Road. The culvert was then extended with a 12" pipe. If this pipe were changed to an 18" pipe there would be adequate provision for drainage of this subdivision. The applicant has agreed that he will increase the size of this pipe to 18". The applicant is proposing the construction of a permanent I ponding area, approximately 4 1/2 feet deep. He feel this will be attractive and feel confident we can do this, based on data from water table samples taken over the past year, both in winter and summer. Subsequent to the applicant submitting his proposal, he has received information from the Board of Health indicating they are against the � ponding because of potential breeding grounds for mosquitos. The applicant, however, feels this would be an enhancement to the subdivision. The applicant is now faced with the change of his design to have a wetland area with a flat bottom surface that will come down in periods of dry weather. Board of Survey Meeting of April 18, 1984 Page 6 Mr. John Price of 67 Gleason Road asked for the roadway measurements. He stated you are talking about a 1500 foot roadway when the Board of Survey Rules and Regulations call for a 900 foot long roadway. He stated he has a concern over public safety for the people of this new subdivision. I would strongly urge that your Board address the fire access. Mr. Schlotmann of 18 Whitehall Lane asked if the Board had correspondence from the Fire or Police Departments. Chairman Barker replied yes, and the Safety Officer was present at the Preliminary Hearing. Barbara Stang of 15 Countryside Lane stated in my opinion, if a road were to exit at the curve on West Street with a flashing light, it ' would improve the traffic situation on West Street. Assistant Superintendent Bergeron read the matrix of the various access options available. Mr. Price of Gleason Road asked if the layout as presented is cast in stone by the Board. Chairman Barker replied this is not cast in concrete at this time. He then read the letters from the Fire and Police Department. Mr. Hampson stated the decision the Board made was done prior to the receipt of tonight's correspondence. Carol Smith of 26 Whitehall Lane stated in light of what John Price has stated, and the Fire and Police Department letters, I can't see why you are standing firm on this. Edward Fuller of 4 County Road stated we should be very careful about passing off the problem of the West Street traffic very lightly. Board of Survey Meeting of April 18, 1984 Page 7 ' Mr. Churchill Franklin of 106 Oak Street stated what about the option for exit on to Oak Street? I understand there was an agreement to sell. Mr. Ogren of Hayes Engineering stated we made an effort to contact the owners of the greenhouse and there was no reasonable price at which the owner would sell it. If the land were to become available Mr. Cormier was prepared to purchase this and go out to Oak Street. Mr. William Locke of South Street stated if your regulations only allow a 900 foot street, how can you go to 1500 feet. Assistant Supt. Bergeron replied the Board of Survey Rules and Regulations Under 'Section 11 - Waiver" allows for this. Mr. Price of Gleason Road stated it is my suggestion to vote this ' plan down at this time and try to work out these problems. Mr. Ogren stated the applicant will definitely look into a proposal for an emergency access to West Street. Mr. Hampson stated what about the pipe sizes presently in the area? Would you agree this is presently a bottleneck? I think you should put in a 24' pipe for 150 feet. Mr. Bergeron stated there are two exit points for drainage at M51 Pine Ridge Road. Daryl Zahlaway of 31 Pine Ridge Road asked why can't you drain this pond and enclose it? Do I understand that this pond has the dimensions of a football field? Mr. Ogren replied yes to the dimensions. However, we can not release water from the land faster because of environmental regulations. We can offer to put a fence around this. Mr. John Zeml.in of 3 Whitehall Lane requested that during Board of Survey Meeting of April 18, 1984 Page 8 ' construction of this development, the heavy trucks go in and exit from West Street. Kathy DeAngelo of 32 Countryside Lane stated I am concerned because of water I don't want a problem in my cellar. I am also concerned with the extra traffic on West Street. Chairman Barker polled the residents as follows: 1 1. How many in favor of direct access to West Street? (31) 1 2. How many in favor of the present plan? (12) 3. How many opposed to the waiver of the additional 900 foot roadway? (36) 4. How many in favor of the applicant looking into other alternatives to the permanent retention pond? (47) Mr. Ogren stated the developer is amenable to going to any other geography. The applicant does have time to request a 30 day extension. Chairman Barker stated the Board of Survey will hold a Public Hearing on Tuesday, May 8, 1984 regarding this issue. It was moved, seconded and voted 4:0 to close the hearing at 10:25 P.M. The meeting adjourned at 10:25 P.M. pRespectfully submitted, aSec e��� KIMBALL & KIMBALL Counsellors at Law ' Trustees 590-A Main Street Lynnfield, Massachusetts 01940 Joan H.&m"= Mea Code(617) Joan H.14mcarr,Ja. 334-3200 April 18, 1984 33°-6200 245-1012 Reading Board of Survey Town Hall Reading, MA 01867 RE: Definitive Plan-Avalon Road Extension Gentlemen: I have been requested to provide a legal opinion to your Board relative to the following two issues which were set forth in a Memorandum to you from William R. Bergeron, P.E. in a Memorandum dated April 13, 1984. The issues are as follows: (1) who is responsible for any liabilities concerning the creation and maintenance of the 4.5 foot deep permanent pond; and (2) what restraints are there on the downstream abuttors concerning their restricting the existing out-flow characteristics of this stream (no easement exists on the Mullens or Franklin properties). Concerning the first question, it is clear that the responsibility for the creation of the pond will be the developers. Naturally, any injury or property damage caused during the creation and construction of the pond will be the responsibility of the developer. Once the pond has been finished, I understand that the Town will want a grant of easement to it, giving the Town the right to drain water through the easement area and further granting to the Town the right and option, but not obligation, to enter upon and maintain the area if necessary. I further understand the developer has agreed to impose upon the owners of the lots upon which the pond is constructed an affirmative obligation to maintain the pond so as to provide the positive drainage for which it is designed. I would suggest that there are two areas in which concern relative to liability might exist. The first concerns possible liability for personal injury which might occur in or about the pond. The second issue relates to liability caused by down stream drainage from the holding pond. Addressing the second area of liability first, it would appear that the engineering and design of the pond will be such that there would be no negative downstream affect caused by the creation of the pond and, in fact, the pond will control the flow of water through the area. Concerning liability on account of personal injury in or about the pond, the law in Massachusetts appears to put the burden for such liability on the land owner. To be sure, if the Topn were to assume -1- KIMBALL & KIMBALL, 590-A MAIN STREET, LYNNPIHLD, MASSACHUSETTS 01940 ' the full responsibility for maintenance and were to negligently maintain the condition of the pond in such a manner so as to cause injury to an individual , then the Town might well be responsible for their negligent maintenance. However, the proposal provides that the land owners will be responsible for the maintenance and would therefore incur liability for improper maintenance of the water area. It does appear that the pond will be the equivalent of an "attractive nuisance." The law in Massachusetts relative to nuisances has changed over the last few years and today the responsibility of a land owner depends, to a great extent, on the classification of the individual who was injured and whether they are an adult or a child. The present law concerning attractive nuisances is found in M.G.L. Chapter 231 Section 85Q. That statute essentially codifies the "Common law theory" as espoused in the case of Soule vs. Massachusetts Electric Company 390NE 2nd 716 and states as follows: "Any person who maintains an artificial condition upon his own land shall be liable for physical harm to children trespassing thereon if (a) the place where the condition exists is one upon which the land owner knows or has reason to know that children are likely to trespass, (b) the condition is one of which the land owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, (d) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the land owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children." Clearly the law now indicates liability towards minors even if they are trespassers on the property of another if the conditions set forth in the statute are satisfied. Note that this statute applies only to minors and that the status of adult trespassers remains unchanged-. That is, land owners must only avoid willful and wanton conduct against the trespasser. Naturally land owners are responsible for injuries suffered by business invitees and social guests, and the test is whether they have exercised due care to prevent injury to a person of that status. The net result of all of this is that the land owners would be responsible for injuries suffered by children if it is determined that the pond is an attractive nuisance. Land owners would only be responsible to adult trespassers if their actions toward the trespassers was willful and wanton. Finally, land owners would be responsible to business invitees and social guests only if their actions breach their duty of due care to the invitee or social guest. Since the developer will be placing the burden of maintenance upon the land owners, there is no question but they would be liable within the scope of the law previously quoted for injuries suffered by individuals in or about the pond. The land owners in turn can protect themselves by having adequate personal liability insurance incorporated in their homeowners insurance policy. -2- KIMBALL & KIMBALL, 590-A MAIN STREET, LYNNPIBLD, MASSACHUSETTS 01940 ' The second question raised by Mr. Bergeron in his memorandum relates to the restraints on downstream abuttors concerning the restriction of existing outflow. I understand that the drainage path presently in existence tends to follow the natural water course from the developer's land across the abuttors property. It therefore appears that the developer or his successors in title could obtain a restraining order in the event that a downstream land-owner obstructed the natural water course which otherwise carries the flow of surface water from the developer's adjoining property (See Ullian vs. Cullen 373 NE 2nd 359). Naturally a question always exists as to whether the area involved constitutes a natural water course, but it appears that as long as it does, any individual downstream can be prevented from obstructing the natural water course in such manner so as to flood the upstream property or otherwise deprive its owner of the lawful and reasonable use thereof. Massachusetts has traditionally followed the "common enemy" approach to surface water problems. The general rule set forth in the case of Gannon vs. Hargadon 92 Mass. 106 (1885) is that a property owner is not liable for damages to adjoining property resulting from activities undertaken on his own property which affect the flow of surface water. Subterranean waters are governed by the same principal as surface water. While exceptions were developed over the years relative to the diversion of surface waters onto adjoining lands by means of artificial channelling or barriers, the question always related to a balance of the rights of the parties and the damage, if any, suffered by the downstream land owner. More recently the common enemy doctrine has been mitigated somewhat by action of the Supreme Court in the case of Tucker vs. Badoian 384 NE 2nd 1195. In that case the court indicated a preference for a reasonable use standard, that is,"each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.. ..." The court has clearly indicated that standards of reasonableness will evolve on a case by case determination typical of the judicial process. This new test would be applied against the downstream owner of property if the downstream owner unreasonably restricted the flow of water through his property and thereby either burdened an upstream land owner or a downstream land owner. It is my opinion that these rules would apply in the instant case and that any downstream land owner who unreasonably restricted the flow of water, not only natural water flow, but to a certain degree increased water flow caused by the reasonable development of land, would be liable to the upstream land owner for damages and would be subject to the imposition of a restraining order preventing the further restriction of downstream flow. To summarize both issues, it appears that the responsibility for personal injury occuring in the artificially created pond area would be borne by the land owners upon whose land the pond exists. The extent of their liability, if any, would depend on the status of the inpured individual , and the land owners could afford themselves protection with appropriate homeowners insurance policies. -3- KIMBALL & KIMBALL, 590-A MAIN STREET, LTNNPIBLD, MASSACHUSETTS 01940 ' Concerning the rights of downstream abuttors, even with the modification of the common enemy doctrine, it is clear that a reasonableness test would be imposed on any restriction of flow created by a downstream owner. If the downstream owner's actions are unreasonable, the downstream owner would be responsible to the upstream land owner for such actions and the damage caused thereby. In addition, the downstream owner could be restrained from restricting the downstream flow to such an extent that it otherwise would cause damage to the upstream land owner. I hope that I have provided sufficient information for you to help you reach your decision in this matter. very �O/ John H. Kimball , Jr. JHKjr/so DICTATED BUT NOT READ -4- "OvI TOWN OF READING, MASSACHUSETTS 01907 W�i��LppL� V�yy''Ap�YME.VpyMp OF f IDA W 1F FUSMY RINKS a BOARD OF HEALTH 4-imq 52 Sanborn Street, Room 12A e6 Tel. 942-0500 - Ext: 31, 32, 39 TOWN OF READING JAME6 J.NUGENT.JR.,RS.,C.X.O..CNM, M.JANE GALLAHUE.M P H,CH O. JUDITH A.PIANI,B.A.C.G.A. Hx10 DI NWl PAUL F.CAS&I.E.D.D S. MARY POCYCXRONES $ecnbry April 18, 1984 Douglas Barker, Chairman Board of Public Warks Municipal Building 16 Lowell Street Reading, MA., 01867 Dear Mr. Barker: Please be advised that the Board of Health cannot, at this time, support the inclusion of a wet-pond within the Avalon Road sub- division. This condition could endanger the health and safety of the abutters to the property. Specific concerns relative to this subdivision have been previously discussed with the engineer and developer of the site. Any revisions to the existing plan will be reviewed on or before the April 21, 1984 extension period granted by the Board to Aurele Cormier, the applicant. The review will be conducted within the above time period by the designated agent for the Board. Sincerely yours, JAMES J. NUGENT, JR., Chairman of the Board JJN:P cc.: Anthony Fletcher William Bergeron w CONSERVATION COMMISSION TOWN OF READING, MASSACHUSETTS April 16, 1984 Mr. Douglas Barker, Chairman Board of Survey Municipal Building Reading, Ma. 01867 Re: Avalon Road Sub-Division Approval Dear Mr. Barker: The Conservation Commission has reviewed the above-referenced plans for issues that would come under Conservation jurisdiction. Concerns that affect the Commission are listed below: In this specific development, the use of a dry pond that would expand as needed during storm events, would appear to be a more desirable construction. The pond could be used for dry recreational uses throughout the dry parts of the year. The maintainance of a dry pond with a streambed running through the center would be much more efficient than that of a permanent pond. Certainly, main- enance should be a major consideration due to the fact that the use of fertilizers from lawns and gardens would be constantly introduced into the pond area. Admittedly, no one likes the idea of retention ponds , but in some cases they are a necessary utility. The Commission would hope that a design would be approved in this project that would safely manage water levels, control vegetation, and allow for the periodic maintenance that would be functional in the densely developed area of Pineridge Road. When the developer presents his project to the Conservation Commission there will be concerns raised about erosion, sediment control, and maintenance of the Wetland Protection District. It is hoped that a amnagable retention pond design will be accepted by the Board of Survey-- it will make it easier for all concerned. Sincerely, Sally M. Hoyt, Chairperson Coaleroe lie waEeq E�ie bees, f�Ze wt[�[i�e, aa� a 6aaali�a[ lawn wi��Oroapee