Kohl Construction, doing business as Tofino Associates and Northern Avenue Homes, filed an application for Special Permit and Site Plan Review with the Planning Board on November 13. You may download the application (PDF, 15.3MB) and the full-scale architectural plans (PDF, 9.2MB) associated with it. The Conservation Commission and the Planning Board intend to hear Kohl's plans on December 11. We'll let you know the exact time and place when they become known.

A lawsuit in Land Court over matters of title and rights-of-way is still active.

The November 13 application is similar to Kohl's original plans. The major change is that the number of units has been reduced from 31 to 25.

[Added on 12/26/08 - Here are three more documents related to Kohl's application:

Email from Gloria McPherson of Kohl Construction to Senior Land Use Planner Carolyn Misch, dated 11/20/08 (PDF)
McPherson responds to questions posed by Northampton's planning staff

Letter from Douglas Kohl to Conservation Commission, dated 12/3/08 (PDF)
Discusses options to mitigate impact on wetlands and aspects of Kohl's proposed stormwater management systems

Memo from James Laurila, City Engineer, to Francis Johnson, Chair, Planning Board, dated 12/5/08 (PDF)
Northampton's Department of Public Works makes some comments on Kohl's application]

Here is the project summary from the application, followed by selected plans:





Two units at the end of Northern Avenue


Detail



Main body of condos


Detail



A close-up of where the main body of condos, roads and other disturbance encroach most closely on the wetlands around Millyard Brook




Download this PDF to view these and related plans at maximum detail.


See also:

Gazette: "Disputes hamper city condo project" (11/22/08)
Eight neighbors filed a lawsuit in Land Court in Boston last March over matters of title and rights-of-way. Some allege they own some of the View Avenue land and the unnamed street in question because they have been using it for years, according to the lawsuit.

"If he ever had a right-of-way, it was extinguished by adverse use," said Brad A. Shimel, a Northampton attorney representing the plaintiffs.

The lawsuit, which is still active and won't be heard for some time, asks the court to determine the rights of both the neighbors and the developer, and to order Kohl to hold off any construction until the matter is settled. Kohl said he would not begin construction until the Land Court issue is resolved.

Kirby on the Loose: "Condo project off North St. files for permits"
The final plans show that backyards, patios and walls will come within 12 feet of the bordered vegetative wetland. This will be the first so-called in-fill project to take advantage of the changes in our zoning in many commercially-oriented zoning districts. Permitted now is reducing the "no-encroachment zone" around wetlands from 35 feet to 10 feet.

Northampton's Flood and Natural Hazard Mitigation Plan: Floyd Flood Damage Reported Behind View Avenue; Avoid Building on Filled Wetlands
In the map below, the red flag behind View Avenue (the topmost flag) indicates a flood damage report from Tropical Storm Floyd (1999). This area is in the eastern portion of Kohl Construction's proposed condo site, one of the more elevated portions. We infer that much of Kohl's property may be at risk from heavy rainfall events.



...In general, a core problem for infill in Northampton is to avoid placing large numbers of people and structures in low-lying areas downtown that may be at risk for flooding. As the plan states, "In recent years, heavy rainstorms have caused significant problems in more urbanized areas as increased development inhibits proper drainage and existing or poorly maintained water systems cannot handle increased stormwater runoff..."

The plan specifically warns against building on Filled Wetlands:

Many areas of the City were developed before the passage of the Massachusetts Wetlands Protection Act of 1972. Historically filled wetlands are commonly related to problems with wet basements, flooding, shifting foundations and failed septic systems. Development in historically filled wetlands should be discouraged through zoning in order to protect health and safety. (p.24)

It is well known that some of Kohl's land contains fill from work on Market Street, dumped there in the early 1980s. Kohl's own Request for Determination of Applicability notes, "The wetlands are degraded with masonry and other construction and road building debris." It seems plausible that parts of Kohl's property meet the definition of a filled wetland.

Smart Growth vs. "Smart Growth"



The problems with Kohl's condo proposal include:

• It threatens green infrastructure by putting roads and structures as close as 35 feet or less to a wetland. Scientific evidence indicates that substantial disturbance within 50 feet puts wetland ecology at risk and threatens water quality. In addition, the condos themselves appear to be at risk of flooding.


• It goes against the existing character and diversity of housing stock in the neighborhood by offering a monotonous, cookie-cutter design scheme with little sense of place.


• As Daryl LaFleur observes, "the Kohl North Street area development proposal includes row house condominiums set to the rear of parking lots, not free standing detached single family homes that front the 'street', which would better match the existing neighborhood and is also a tenet of Smart Growth."

Smart Growth is most palatable when it's implemented as a whole. When public and private actors are allowed to cherry pick aspects that suit their convenience, the "Smart" can be lost.

Condo Monotony: The Future of Ward 3?
To maximize profits, the developers have shoehorned units into their lots with little regard to the preexisting appearance of their neighborhoods. The developments feel inward-facing or 'withdrawn', not part of the regular street fabric. These aspects are probably what prompted the "carbuncle" comment from the planning board member.

New Hazards Mitigation Plan Reflects Weakened Protection for Wetlands
Unfortunately, the City Council voted 7-2 in 2007 to permit development in multiple districts to encroach as close as 10 feet to wetlands. In a rapid shift of priorities, facilitating urban infill was now deemed more important than flood mitigation, water pollution control, or urban greenspace. The proposed condo development off North Street is a good example of a project that relies on the narrowed buffer zones...

The claim that allowing development within 50 feet of wetlands can still give effective protection does not bear up under scientific scrutiny. As Hyla Ecological Services noted in 2007:

"Buffers of less than 50 feet in width are generally ineffective in protecting wetlands. Buffers larger than 50 feet are necessary to protect wetlands from an influx of sediment and nutrients, to protect wetlands from direct human disturbance, to protect sensitive wildlife species from adverse impacts, and to protect wetlands from the adverse effects of changes in quantity of water entering the wetland..." (Castelle et al., 'Wetland Buffers: Use and Effectiveness', 1992)

"Buffer function was found to be directly related to the width of the buffer. Ninety-five percent of buffers smaller than 50 feet suffered a direct human impact within the buffer, while only 35% of buffers wider than 50 feet suffered direct human impact. Human impacts to the buffer zone resulted in increased impact on the wetland by noise, physical disturbance of foraging and nesting areas, and dumping refuse and yard waste. Overall, large buffers reduced the degree of changes in water quality, sediment load, and the quantity of water entering the adjacent wetland." (Castelle et al., 1992)

...Most striking in the [Environmental Law Institute] report is that some locales desire wider buffers in areas of intense land use to address the higher levels of pollution and runoff. By contrast, Northampton has its narrowest buffers in these areas.

Earlier this year, NSNA engaged Hyla to compare Northampton's new Wetlands Ordinance to the regulations in other cities across Massachusetts. Hyla found that Northampton is now an outlier. In the entire state, it's hard to find anything similar to our 10-foot buffer zones for new development...

"...it is forecasted that, Massachusetts, and the rest of New England, is long overdue for a major hurricane to make landfall. Based on past hurricane and tropical storm landfalls, the frequency of tropical systems to hit the Massachusetts coastline is an average of once out of every six years." (Hazards Mitigation Plan, p.28)

Gazette guest column: "Don't ease controls on wetlands" (10/25/07, emphasis added)
[Alexandra Dawson, chair of Hadley's Conservation Commission, writes,] ...Northampton has adopted changes to its bylaws that limit the setback between development and wetlands in the business district to 10 feet, although it is obvious that 10 feet is not even enough space to accommodate the big yellow machines that do the building. It is true that a recent court decision indicates that wetlands ordinances (or conservation commission regulations adopted under them) should enumerate setbacks so that builders need not guess what will be required of them. Unfortunately, there is also case law stating that whatever is so established limits the commission's discretion to ask for more unless there is a specific showing of why one proposal stands out from the others. If the setback in the ordinance is 10 feet, it will be very hard for the commission to justify a permit restricting building for 50 feet. For this reason, most eastern Massachusetts bylaws that contain setbacks start at 25 to 50 feet.

Mike Kirby: "The Meadowbrook Chronicles Part One"
The Meadowbrook story has many important facets. Of particular interest to us are the consequences that can follow from building homes near wetlands...

The developers built 255 units of affordable apartments there. They crammed them in everywhere they could, pushing them up into the bluffs, and close to the creek and wetlands. No backyards to speak of. One third of the buildings were built within 50 feet of the wetlands, 63% of the buildings are within the customary 100 feet of wetlands.

None of the buildings have cellars under their apartments. If they have cellars, there are people living in them. The cellar floors in the basement apartments in Buildings #4 and #2 are lower than the surrounding swamp. Some slabs have cracks in them. People have been flooded out. No moisture-proof barriers between the surrounding earth and the foundations. Moisture and mold percolate up into people's apartments via the chases that hold utilities. If you wonder why low-income children are afflicted with a whole host of respiratory diseases, you have to look no further than the children of the floor level and basement apartments of Meadowbrook...

Northampton Redoubt: Doug Kohl reduces "footprint" of subdivision proposal due to the discovery of vernal pools in the North Street area wetlands (9/12/07)
Daryl LaFleur writes:
When I asked about the possibility of basements flooding in the future due to their proximity to the wetlands he indicated that some of the units would have basements provided they can be "drained to daylight." Others would be constructed on concrete slabs. He also noted that most of the units would have one garage bay located within the perimeter of the buildings on the first floor, reducing the need for surface parking by one space for each of these units. It remains unclear to me how large construction equipment can operate very close to wetlands without harming them. It appears some of the units would be located within twenty feet of the wetlands.

Gazette: "Council adopts wetlands ordinance"
At-large City Councilor James M. Dostal proposed an amendment Thursday that called for increasing the 10 feet no-encroachment zones in urban residential districts to 50 feet because of serious concerns about homes flooding, saying "We shouldn't be building there..."

Adam Cohen, of North Street and an organizer of the North Street Neighborhood Association said he believes a 50-foot no-[en]croachment zone would be better for the city's urban residential districts. That, he said, represents "consumer protection for homeowners."

Gazette: "Region's storms going to extremes, report finds" (12/5/08)
Today's Gazette reports New England is experiencing more extreme rainstorms than in the past. We can also expect longer periods of relative dryness.

Extreme downpours and snowstorms are rising in frequency nationally, with the highest increases in New England...

Massachusetts saw a 67 percent rise in severe storms during [1948-2006], trailing only Rhode Island and New Hampshire...

...the top 10 severe storms in the state all occurred in the past decade...

...scientists expect that extreme downpours will punctuate longer periods of relative dryness, increasing the risk of drought...

Wetlands can moderate both flooding and drought, absorbing excess water during storms and releasing it slowly during periods of dryness. Today's report underscores the value of our remaining wetlands in Northampton.

EPA: Wetlands and Flood Protection
Wetlands within and downstream of urban areas are particularly valuable, counteracting the greatly increased rate and volume of surface-water runoff from pavement and buildings...

Northampton Redoubt: Urban Planning, Public Policies, and Urban Ecology
...the Kohl development on North Street will probably not closely mimic dense older urban neighborhoods in any country, and it will cost us part of an urban forest as well. Look at the schematic below and tell me that this proposed development is the best that can be done with regards to Smart Growth. It appears to me as a tightly clustered residential sprawl-development moved into town with basically a token nod toward Smart Growth principles, that is it's close to town and it's clustered...

...I have not been able to find definitions of infill that include removing viable greenfields, though they may exist. Generally infill seems to concern redeveloping previously developed areas, vacant lots, or brownfields and rehabilitating historic buildings. Thus obscured from the recent debate has been the importance of maintaining Northampton's Urban Ecology, which enhances the quality of life of intown dwellers, human or otherwise...

Topographical Map Shows How Kohl Condo Proposal Will Eat Into a Rare Stand of Mature Trees in Downtown
The following view dramatizes the considerable amount of impervious surface already in the area, especially around King Street and the Coca-Cola plant. Kohl's "infill" project will convert a significant amount of the remaining greenspace to impervious surface. The presence of Millyard Brook shows that this area serves as a natural sink for water in the neighborhood.



Alex Ghiselin, Letter to Gazette: "Don't let development encroach on our wetlands"
The failure of the storm water system built as a part of the Northampton High School renovation six years ago illustrates why protecting wetlands is so important. Silt has filled the retention pond so there is no capacity to slow a storm surge which now flows unimpeded into the Mill River and contributes to flooding downstream. This accumulated silt also raised the water table and spills ground water into nearby basements...

Without maintenance, these [storm water mitigation] systems are part of the problem, not the solution...

Wetlands do not need to be maintained; they just need to be protected.

Carlon Drive: Compensatory Wetland Not Working
Mike Kirby writes:
In Carlon Drive, they simply scooped out a hole in the swamp-bottom, and called it a detention structure. Today it is just a pond, and a stagnant smelly one. It was designed to have a dry forebay, and a shallow main chamber was supposed to have only about 6 inches of water in it. This was supposed to be a compensatory wetland, full of cattails and wildflowers. A rock check dam was supposed to hold back the "first flush" off the parking lots and trap pollutants, and outflow from it was supposed to feed the wet part of the detention pond. Here rain water pouring off the new parking areas and street was supposed to be stored, and discharged safely.

That was the plan. Today if you stand by the pond and look down into it, you'll see the check dam is now about two feet underwater. You can't even see where they planted the marshgrass and flowers. The area is under water. Even in a fairly dry summer, the detention pond is only about a foot and a half from the top of the bank. There's no storage to speak of, no discharge, no filtering. As it is constructed now, grey water from the parking lots and the access street goes directly into the swamp and the Connecticut River.

Paved Surfaces, Salt and Water Bodies: A Bad Mix

Snow and Slush Expose Limits of Storm Drains

Easthampton Flooding Hazard: Snow-Clogged Storm Drains

Photos Show: Man-Made Lakes and Stormwater Retention Systems Are No Substitute for Natural Wetlands

EPA: "Mosquito proliferation in stormwater ponds is a concern"
Anyone who has walked around the wetlands between North Street and the bike trail can attest to its large numbers of mosquitoes in the warmer months...

"Mosquito proliferation in stormwater ponds is a concern, especially when so many wet and dry ponds are in place and continue to be installed across the country. Many ponds are not properly maintained, particularly in cases where they are installed in subdivisions and other developments where the entity responsible for long-term maintenance is not clearly defined once the construction is complete..." [EPA, emphasis added]

Detention Pools, Children and Drowning

Northampton Residents Sue Developer Douglas Kohl to Resolve Questions of Title and Rights-of-Way (3/13/08)
The lawsuit names two companies affiliated with local developer Douglas Kohl and raises questions about ownership of the land which go back over 90 years. The lawsuit states the original owners never transferred title to a portion of the land. The disputed land seems to have been intended to become streets serving now outdated building lots. No such streets were ever built.

The developer now wants to use the alleged street to access the condominium project. The neighbors claim that any intent to create streets was abandoned long ago. Certain neighbors also allege they have been using portions of the land as their own for many years and that they have acquired legal rights to those portions of the land. One property owner previously won a similar case in the Hampshire Probate Court on that basis and acquired ownership to part of the alleged street.

State Offers Funds to Help Conserve North Street Woods
Here is the relevant portion of "An Act Providing for the Preservation and Improvement of Land, Parks, and Clean Energy in the Commonwealth", as signed by Governor Deval Patrick on August 14:

2000-7015... that not less than $100,000 be expended for the acquisition of wooded land to be used for conservation and passive recreation in the North Street neighborhood of the city of Northampton, provided that the abutters of said property provide matching funds for said acquisition...