Alewife Study Group > wetlands and flooding > community feedback > Apr. 18 2000, Conservation Commission Search 

Oaktree Development / 30 CambridgePark Drive
and the Cambridge Conservation Commission

APPEAL OF ORDER OF CONDITIONS

On April 18, 2000, the Cambridge Conservation Commission issued an Order of Conditions and Enforcement Order allowing CambridgePark Place, LLC (Oaktree Development) to proceed with its plan to build a nine-story, 366,000-square-foot apartment complex at 30 CambridgePark Drive, a site that is entirely within the 100-year floodplain as shown on FEMA maps.

The undersigned residents of Cambridge hereby request a Superseding Order of Conditions from the Massachusetts Department of Environmental Protection (DEP). We believe the Order of Conditions and Enforcement Order fail to protect the interests identified in the Massachusetts Wetlands Protection Act (M.G.L. c. 131, s.40) and are inconsistent with the Wetlands Regulations (310 CMR 10.00) for the following reasons among others:

  1. Noncompliance with 310 CMR 10.00 Performance Standards Regarding 310 CMR 10.57, we believe the Notice of Intent submitted by the project proponent is inaccurate (incorrect calculation of compensatory flood storage at specific elevation ranges, incorrect statement of building area) and thus does not meet the requirements for flood storage compensation outlined in the Regulations (total compensatory flood storage between 7.0 and 8.0 feet is between 13,450 and 16,900 cubic feet less than is required). In addition, the Order of Conditions fails to specify how much elevation should separate the high groundwater elevation and the bottom of various water storage systems. Also, per 310 CMR 10.03(1), the applicant failed to accurately determine whether certain areas qualify as Bordering Vegetated Wetlands and whether associated Buffer Zone performance standards apply.
  2. Procedural Issues We believe that many of the filings submitted by the proponent were flawed as were many aspects of the hearing process itself leading to an incomplete and erroneous assessment of the facts of the case and their relationship to the Wetlands Regulations. A partial listing of these items includes (a) improper determination of "existing conditions," and (b) failure to determine that certain interests of the Wetlands Protection Act need to be protected.
(Further details provided in attachments and forthcoming amendments)

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APPEAL OF ORDER OF CONDITIONS (cont'd)

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PROCEDURAL ISSUES

1. Improper determination of "existing conditions"

 In their Order of Conditions the Cambridge Conservation Commission ruled that the project proponent could calculate flood storage based on conditions that prevailed on the site before they filed a Notice of Intent. This determination was based on two arguments: First, the buildings that previously existed on this site were knocked down as part of this project and second, these buildings predated the 1982 FEMA floodplain survey.

In addressing the first argument it should be noted that a Conservation Commission is ill-equipped to determine whether previous site conditions are part of a current project proposal. These are complex determinations of fact and intent better left to courts of law

The Conservation Commission determined that the "applicant has provided evidence that this demolition and clean-up was done in preparation for their proposed housing project", However, the evidence is inconclusive at best. Documents have been provided by the project proponent alleging an ironclad agreement to demolish the building in preparation for the current project; However contradictory evidence is provided in their Notice of Intent and elsewhere.

In the June, 1998, DEP application for a demolition permit (see Notice of Intent, Appendix 4, Additional Correspondence) the landowner is asked if this is a construction project to which he responds bluntly, "No. This will be a parking lot". Since this is the legal filing of record to the DEP this statement should be considered as the foundation for assessing the intent of the project proponent.

Even assuming that the owner had a development project in mind, can the Conservation Commission be absolutely certain that the Oaktree project was the sole or even principle reason the 1950s buildings were demolished? Several developers had approached the owner, Denis O' Driscoll during this period of time with different development proposals.

Agreements were signed between the landowner and Oaktree but with many caveats and escape clauses. This was a highly speculative venture with many hurdles to cross before it could be called a project moving forward not the least of which was a mandated 21-E cleanup on the site.

It may be more than a mere coincidence or oversight that the proponents did not file their Notice of Intent before the owner completed the demolition of the 1950s building and the 21-E cleanup. It may be indicative of the tenuous nature of the project at that point and the unwillingness of the developer to invest in the research necessary for a Notice of Intent until the project was actually moving forward.

In their second argument for accepting the previous site conditions, the Conservation Commission argues that the 1950s building was still on the site when FEMA mapped the floodplain boundaries in 1982 therefore it is acceptable to make the flood storage calculations with these buildings on the site.

This argument is double-edged. By allowing a revisitation of floodplain conditions in 1982 the Commission also opens up the possibility of revisiting development in the floodplain since that time. A reasonable look at floodplain conditions since 1982 would likely conclude that even more compensatory flood storage ought to be required from any new developments to make up for the lost capacity of the floodplain since the last mapping.

In conclusion, by re-visiting past site conditions at 30 CambridgePark Drive and speculating as to when the Oaktree project began, the Cambridge Conservation Commission moved from considerations of fact to considerations of intent and motive for which it was ill-equipped to handle.

2. The Conservation Commission erred in not determining that certain interests of the Wetlands Protection Act needed to be protected.

In its Order of Conditions, Sec. B (Findings), the Commission did not find the Groundwater Supply, Storm Damage Prevention, Prevention of Pollution,or Protection of Wildlife Habitat were interests that needed to be protected under the Wetlands Protection Act, yet it stipulated multiple conditions pertaining to precisely those interests - Attachment A, Additional Mitigations #2, 3, 4, 5, 6, 7, 8 and 9; and Attachment C, Special Conditions #27, 28, 29, 30, 31, 34, 35, 36, 44 and 46, )

Non-compliance with 310 CMR 10.00 Performance Standards

From the project plans Supplied with Supplement 3 of the Notice of Intent (NOI, Suppl. 3), it appears that the applicant does not meet the compensatory storage performance standards required per 310 CMR 10.57 for Bordering Land Subject to Flooding (BLSF) as part of the Wetlands Protection Act ("the Act") as administered by the Massachusetts Department of Environmental Protection ("the Department").

The specific calculations used in much of the following discussion have been included in the attached supplement.

Non-compliance with Compensatory Storage Requirements Between Elevations 7.0 and 7.2 feet

From a review of the scale drawing filed in the NOI, Suppl. 3, the storage capacity of the site between elevations 7.0 and 7.2 feet is estimated to be 10,700 c.f., which is greater than that which the applicants have reported as 8,800 c.f. in the NOI, Suppl. 3.

Therefore, assuming the stated incremental volume provided the proposed plan is correct, the proposed site plan fails to provide the required incremental compensatory storage volume, as required by the Act, between elevations 7.0 and 7.2 feet by approximately 1850 c.f.

However, using the recalculated incremental volume for the proposed plan based on information provided in the NOI, Suppl. 3, the applicant appears to be providing 2650 c.f. less than the 8,850 c.f. claimed to be provided incrementally between elevations 7.0 and 7.2 feet, and 4500 c.f. less than required by the Act.

Non-compliance with Compensatory Storage Requirements Between Elevations 7.2 and 8.0 feet

By removing the weir system for compensatory storage, the applicant lost the ability to provide storage capacity in the critical elevations between 7.2 and 8.0 feet, thereby providing 11,600 c.f. less compensatory storage between these elevations than is required by the Act.

Non-compliance with Compensatory Storage Requirements Between Elevations 7.0 and 8.0 feet

By combining the preceding findings, for the whole-foot increment between elevations 7.0 and 8.0 feet, the applicant provides 13,450 c.f. less compensatory storage than is required by the Act.

If a stated building size of 50,000 s.f. is used in the calculations vs. the more conservative estimate based on the drawings, the compensatory storage would be 12,400 c.f. less than required between elevations 7.2 and 8.0 feet and, potentially 16,900 c.f. less than required by the Act between elevations 7.0 and 8.0 feet.

However, if the more conservative estimate of building size is used in the previous calculations, the applicant would fail to meet the compensatory storage requirement of the Act between the listed elevations 7.2 and 8.2 feet by 630 c.f.

Failure To Provide an Adequate Margin for Error

It should be noted that the proposed plan claimed to meet the compensatory storage requirements between elevations 7.2 and 8.2 feet by 150 c.f. compared to the 88,300 required, a margin of a small fraction of one percent (0.17%). Relatively small errors in calculations could easily cause a failure to meet the compensatory flood storage requirements of the Act. For example, if the building size (indicated to be 50,000 s.f.) were actually 1000 s.f. smaller, the applicant could not meet the compensatory storage requirements between elevations 7.2 and 8.2 feet. The attempt to maximally develop on a property entirely in BLSF precluded the ability to provide reasonable allowances relative to the size of the project.

For the large-scale development in BLSF only a few hundred feet from a state-protected urban wild (the 115-acre MDC Alewife Brook Reservation), a larger margin for error should be required in the project plans.

Order of Conditions Lacks Specification for Storage Systems Relative to Groundwater Elevation

Since the compensation chamber is directly tied to the storm sewer lines, groundwater infiltration would disrupt normal flows by directing the groundwater directly into the river. Additionally, the plans show the drywell structures as extending more than 7.25 feet below the finished grade, indicated to be 5.5 feet (CC-4.1), which means the wells will extend into negative elevations.

The Department should clearly specify, in a superceding order of conditions, the minimum separation in elevation between the high groundwater elevation and the bottom of the compensation chamber and leaching structures.

Portions of Project Planned Near Wetland Vegetation

The NOI, Suppl. 3, indicates wetland vegetation in two depressions along the eastern boundary of the site and that the areas may qualify as Bordering Vegetated Wetlands (BVW). During a public hearing, an area naturalist had indicated that this area has been used as a avian nesting ground. The applicant failed to demonstrate that these areas were not BVW as required by 310 CMR 10.03(1) for which the project may affect through alterations in a potential buffer zone.

The proposed plans have sited the only vehicular access to the main parking facility between these depressions. If the drywells are connected by a piping system to allow the stated filling during the higher frequency flood events, then alterations in groundwater levels may be affected. Additionally, portions of the nine-story building come in close proximity to the eastern boundary and may cause significant overshadowing of the region.

The Department should rule on the BVW jurisdictional status of the eastern depressions and determine if the parking lot access and/or portions of the building should be re-sited and/or if the project will affect groundwater levels in order to prevent alteration of the wetland habitat.

Detailed Calculations, 310 CMR 10.00 Performance Standards

From the project plans Supplied with Supplement 3 of the Notice of Intent (NOI, Suppl. 3), it appears that the applicant does not meet the compensatory storage performance standards required per 310 CMR 10.57 for Bordering Land Subject to Flooding (BLSF) as part of the Wetlands Protection Act ("the Act").

Non-compliance with Compensatory Storage Requirements Between Elevations 7.0 and 7.2 feet

In particular, Table 2 of the NOI, Suppl. 3, the applicant claims that between elevations 7.0 and 7.2 feet, that the proposed plan provides 8,850 cubic feet (c.f.) of compensatory storage. The applicant further claims that 8,800 c.f. of flood storage capacity existed between said elevations when the building existed.

Although the applicant claims to exceed the required storage by a mere 50 c.f. (0.57%), a comparison of drawing CC-4.2 (2) with CC-4.2 (3) should indicate that less storage is available with the proposed site plan than with the conditions that include the building. These figures have been reproduced as Attachment A-1, with the compensation chamber area unshaded in the proposed plan, since (with a 6 inch garage floor thickness; refer to Attachment A-2 taken from CC-3.1 (7)), water would reach the top of the chamber before elevation 7.0 feet. Note: the plans indicate that the garage floor will be dry and unavailable for flood storage until 0.05 inch below the 100-year flood elevation, when water finally crests the parking lot entrance at elevation 8.15 feet.

Furthermore, using surface area approximations from the scale drawings in the submitted plans, for the site conditions with the building, it was found that by elevation 7.0 feet, an estimated 53,500 s.f. of open area on the site would be available for flood storage, with the capacity continuously increasing through elevation 7.2 feet. (See Attachment A-3.) Even if only the surface area delineated by the 7.0 feet contour lines is assumed available for flood storage, then the total flood storage volume between elevations 7.0 and 7.2 feet would be 10,700 c.f. of storage in the site conditions with the building (0.2 feet {elevation} times 53,500 s.f. {surface area}). This value is not only greater than reported for the existing conditions, but it shows that:

Furthermore, as a close approximation, CC-4.2 (3), from attachment A-1, shows that at elevation 7.2, nearly all "impervious" surfaces are above the elevation. According to the NOI, Suppl. 3 (Section 2.3, subheading Additional Mitigation as a Penalty for Not Notifying the Conservation Commission, point 3, page 13), 79% of the site under the proposed plan would be impervious, leaving 21% of the total for flood storage, i.e. 31,000 s.f. (21% of the site area 147,724 s.f.). Between elevations 7.0 and 7.2 feet, the volume above this surface would be 6,200 c.f. (0.2 feet {elevation} times 31,000 s.f. {surface area}).

Non-compliance with Compensatory Storage Requirements Between Elevations 7.2 and 8.0 feet

Additionally, there is an indication that the proposed plan cannot meet the required incremental compensatory storage between elevations 7.2 and 8.0 feet. On each of the numerous previously submitted tables showing the compensatory storage volumes, the elevation 8.0 feet was included as a reference elevation, as were all whole number elevations from 2.0 feet to the 100-year flood elevation. It is interesting that the applicant has chosen to remove the 8.0 elevation from the compensatory storage calculation table only in the latest Supplement to the NOI (Suppl.3 ).

Since the reference elevation at 8.0 feet has not been included, the following process has been used to calculate the incremental storage between 8.0 and 8.2 feet, and thereby attain the incremental storage between 7.2 and 8.0 feet. As shown in CC-4.3 (2) (in Attachment A-4), the site conditions with the building, for a 100-year flood reaching elevation 8.2 feet, the only portion of the site that would not be inundated would be the area covered by the former building. The only additional portion of the site that would not be inundated between 8.0 and 8.2 feet is a small 90 s.f. region near the most westerly edge of the building.

The surface area of the building outlines is given as 50,000 s.f. in the NOI, Suppl. 3. However, using the scale drawings in the application, the value was found to be approximately 46,100 s.f. Being more conservative and allowing 46,100 s.f. and not including the 90 s.f. region, the corresponding volume unavailable for storage capacity between 8.0 and 8.2 feet for the site conditions including the building would be 20,300 c.f. (0.2 feet {elevation} times [147,724 - 46,100] s.f. {surface area}). The capacity for the site conditions with building between elevations 7.2 and 8.0 thereby would be 68,000 c.f. (88,300 c.f. minus 20,300 c.f.). (The number 88,300 was taken from Table 2 of the NOI, Suppl. 3, for incremental volume between 7.2 and 8.2 feet.)

According to Table 2 of the previously submitted Supplement 2 of the NOI, the volume between 8.0 and 8.2 feet under the Proposed Plan was 32,020 c.f. Since the plan have reported not changed significantly from the previous submissions, subtracting this incremental volume from the total between 7.2 and 8.2 listed in the current NOI, Suppl. 3, will yield the incremental volume between 7.2 and 8.0, which is found to be 56,430 c.f. (88,450 c.f. minus 32,020 c.f.).

Non-compliance with Compensatory Storage Requirements Between Elevations 7.0 and 8.0 feet

By combining the preceding findings, for the whole-foot increment between elevations 7.0 and 8.0 feet, the applicant provides 13,450 c.f. less compensatory storage than is required by the Act. (1850 c.f. less between 7.0 and 7.2 feet, and 11,600 c.f. less between 7.2 and 8.0 feet.)

If a building size of 50,000 s.f. is used in the calculations, the compensatory storage would be 12,400 c.f. less than required between elevations 7.2 and 8.0 feet and, potentially 16,900 c.f. less than required between elevations 7.0 and 8.0 feet (4500 c.f. between 7.0 and 7.2 feet, and 12,400 c.f. between 7.2 and 8.0 feet).

Use of Incorrectly Documented Building Size in Applicant's Calculations

If the applicant actually used 50,000 s.f. as the size of the building outlines as indicated in the NOI, Suppl. 3, when a value of 46,100 may be more accurate, then even just between elevations 8.0 and 8.2 feet, the required compensatory storage would need to be increased by 780 c.f. (0.2 feet [elevation] times the difference of 50,000 s.f. and 46,100 s.f. [surface area]), yielding a total storage volume of 89,080 c.f. between elevations 7.2 and 8.2 feet.

Even if a more conservative estimate of 49,000 s.f. were used for the building size, the applicant would still fail to meet the compensatory storage requirement of the Act between the listed elevations 7.2 and 8.2 feet

Failure To Provide an Adequate Margin for Error

It should be noted that the proposed plan claimed to meet the compensatory storage requirements between elevations 7.2 and 8.2 feet by 150 c.f. compared to the 88,300 required, a margin of a small fraction of one percent (0.17%). Relatively small errors in calculations could easily cause a failure to meet the compensatory flood storage requirements of the Act, as in the previous case showing the effects of a 1000 s.f. change in building size used in the calculations. The attempt to maximally develop on a property entirely in BLSF precluded the ability to provide reasonable allowances relative to the size of the project.

For the large-scale development in BLSF only a few hundred feet from a state-protected urban wild (the 115-acre MDC Alewife Brook Reservation), a larger margin for error should be required for the building plans.

Order of Conditions Lacks Specification for Storage Systems Relative to Groundwater Elevation

During the Public Hearings for the project, the Executive Director for the Cambridge Conservation Commission observed that the Massachusetts Department of Environmental Protection ("the Department") recommends drywells be placed with the structure bottoms at two feet over the high groundwater elevation. Other documentation has indicated that the bottom of drywells be placed greater than four feet over the high groundwater elevation.

In the NOI, Suppl. 3, the February 4, 2000 letter from McPhail Associates, Inc. indicates a maximal groundwater elevation of 3 feet. Furthermore, the Order of Conditions for this site indicate that the applicant will perform additional groundwater testing in the Spring of 2000.

The plans submitted by the applicant show (CC-3.1 (7) - Attachment A-2) the elevation of the inside bottom of the flood compensation chamber at 2.5 feet, with an additional minimum of 0.5 feet of crushed stone as permeable flooring, thereby extending the bottom of the structure to an elevation below 2.0 feet. Since the compensation chamber is directly tied to the storm sewer lines, an infiltration by groundwater would cause a disruption of normal flows by directing the groundwater directly into the river.

Additionally, the plans show the drywell structures as extending more than 7.25 feet below the finished grade (CC-3.1 (5) - Attachment A-5), indicated to be 5.5 feet (CC-4.1 - Attachment A-6), which means the wells will extend into negative elevations.

SUMMARY OF PRECEDING CALCULATIONS
FLOOD PLAIN ANALYSIS
(most conservative approach)
Elevation Conditions w/ building NOI Supplement #3 Plans Existing Conditions
(no building)
Incremental
Volume
Cumulative
Volume
Incremental
Volume
Cumulative
Volume
Incremental
Performance
Cumulative
Performance
Incremental
Volume
Cumulative
Volume
7.0                
  10,700   8,850   -1,850   18,900  
7.2 (50-yr)   10,700   8,850   -1,850   18,900
  68,000   56,430   -11,570   104,450  
8.0   78,700   65,280   -13,420   123,350
  20,300   32,020   11,720   29,900  
8.2 (100-yr)   99,000   97,300   -1,700   153,250

Breakdown of volumes between 7.2' & 8' and 8' & 8.2' for NOI Supplement #3 Plans were derived from the data from NOI Supplement #2. The applicant has stated in the NOI Supplement #3 that "there are no major revisions to the plans from the last supplement," so the calculations should be valid. Estimated volumes in narrative were rounded to three significant figures, but were carried out in the table to provide correct cross-tabulation. Cumulative volumes are referenced to elevation 7.0.



Contact the Alewife Study Group, North Cambridge Massachusetts, by email at information@alewife.org