HomeMy Public PortalAboutConservation Commission -- 2019-03-05 Minutes (2) Brewster Conservation Commission Minutes — Meeting Under _E
Massachusetts General Law Chapter 40, Section 8C, Conservation Commission Act ?
Massachusetts General Law Chapter 131 , Section 40,
Wetlands Protection Act (WPA) , 310 CMR 10 . 00 Regulations I' trl l
Massachusetts Department of Environmental Protection ( MA DEP )
( M . G . L . C , 131 . § 40)
And
Code of the Town of Brewster Chapter 172 ,
Brewster Wetlands Protection Bylaw ( BWP Bylaw)
Wetland Regulations 1 . 01 — 9 . 15
Call to Order
Under the Massachusetts Open Meeting Law, Chairman Michael Tobin convened the Tuesday ,
March 5 , 2019 meeting of the Brewster Conservation Commission at 6 : 00 PM at the Brewster
Town Offices , 2198 Main Street , Brewster, MA,
Present
Chairman Michael Tobin , Vice Chairman Nicole Smith , Commissioners Bruce Evans , William
Klein , Conservation Administrator Noelle Aguiar, Natural Resources Director Chris Miller, Senior
Department Assistant Carol Spade
Not Present
Commissioner Peter Wells
Chairman Tobin read the following into the record :
"As required by the Massachusetts Open Meeting Law, the Conservation
Commission is informing the public that this meeting will be video* recorded .
Anyone else intending to record is required to inform the Chairman prior to the
meeting . "
Under MA General Laws Chapter 40, Section 8C,
Motion for Conservation Commission : " Move , pursuant to the vote taken under
Article 29 of the May 71 2018 Annual Town Meeting , to accept the care , custody,
control and management of the property located on W. H . Besse Cartway for
conservation , watershed protection , and/or passive recreation purposes under the
provisions of G . L . c . 40 , § 8C , 39B , and 41 . "
Bruce Evans : " I move , pursuant to the vote taken under Article 29 of the May 7 ,
2018 Annual Town Meeting , to accept the care , custody, control and management
of the property located on W. H . Besse Cartway for conservation , watershed
protection , and/or passive recreation purposes under the provisions of G . L . c . 40 ,
§ 8C , 39B , and 41 . " Nicole Smith seconded the motion . Bill Klein , " Aye" , Bruce
Evans , " Aye" , Nicole Smith , "Aye " , Michael Tobin , "Aye " .
Signatures , Acceptance by Conservation Commission
Public Hearing
Request for Determinations of Applicability
James Lay requests determinations as to whether the area — 100 feet to inland wetlands ,
and the work - upgrade of a septic system - are subject to the Wetlands Protection Act and
jurisdiction of the BWP Bylaw . Property is on 22 Cranberry Lane , 137/70 ( 31 /166 ) .
Summary of Applicant Testimony
John O ' Reilly , J , M . O' Reilly , Inc . , represented the applicant. He described the resource areas
and project as contained in the Request for Determination and displayed plan *.
Brewster Conservation Commission Minutes March 5 , 2019 1
Summary of Staff/Conservation Commission Comments
Discussion centered on vegetation of disturbed areas . Mr. O ' Reilly confirmed that all disturbed
areas will be planted with a native grass seed mix .
Ms . Aguiar informed Mr. O' Reilly that floodlights are currently penetrating the wetland . Mr.
O ' Reilly stated he will notify the property of the owner of that issue .
A special condition of the project shall state the following :
Exterior lights on any structure shall be directed downward and shielded so the light does
not illuminate wildlife habitat in jurisdictional areas . Any existing spotlight or floodlight
shall be removed or re-directed downward .
Summary of Public Comments
The public had no comment.
Klein moved , Smith seconded the motion to close the public hearing and issue determinations , as
shown :
Negative Determination
3 . The work described in the Request is within the Buffer Zone , as defined in the regulations ,
but will not alter an Area subject to protection under the Act. Therefore , said work does not
require the filing of a Notice of Intent, subject to the following conditions ( if any) .
Special Conditions shall be detailed in a letter to the applicant from the Conservation
Commission agent.
6 . The area and /or work described in the Request is not subject to review and approval by
Town of Brewster Pursuant to the Code of the Town of Brewster Wetlands Protection Bylaw ,
The Conservation Commission unanimously approved the motion .
*List of documents submitted for the Request for Determination and discussed at this hearing
1 . J . M . O' Reilly & Associates, Inc. Site Plan 22 Cranberry Lane, 1 /4/19
Notice of Intent
( Continued Hearing ) Thomas Monaghan , Corcoran Jennison Management ( Ocean Edge
Resort) proposes variances from the Brewster Wetlands Protection Bylaw for
bioengineering measures consisting of rows of coir materials , and sand nourishment and
native vegetation on a Coastal Dune , Coastal Beach , Land Subject to Coastal Flowage and
Riverfront and within the 100-foot Buffer Zone to a Salt Marsh , Land Containing Shellfish and
Vegetated Wetlands , on property off 2907 Main Street, 90/160 ( 14/1 ) .
Klein/Smith continue the hearing to 3/ 19/ 19 . AU** .
( Continued Hearing ) Stewart Bernstein , Ocean Edge II ( Ocean Edge Resort) proposes a
variance from the Brewster Wetlands Protection Bylaw to vegetate a coastal dune . Property
is on 2907 Main Street, 90/160 ( 14/1 ) .
Klein/Wells continue the hearing to 3/ 19/ 19 . AU ** .
( Continued Hearing ) Sears Point Condominium Association proposes a variance from the
Brewster Wetlands Protection Bylaw to construct a rock boulder revetment and sand drift
fence, along coastal landforms to protect a structure constructed prior to 1978 , the date of
enactment of the Wetlands Protection Act. Property is off Sears Point Drive , 57/3 (4/1 ) .
Smith/Evans continue the hearing to 3/ 19/ 19 . AU ** .
To be heard as one hearing :
Brewster Conservation Commission Minutes March 5 , 2019 2
( Continued Hearing ) Mary Ellen Olson proposes a variance from the Brewster Wetlands
Protection Bylaw, to install two rows of 5-foot by 4-foot double coir layer, jute filled
envelopes , one row of 3 -foot by 3 -foot coir envelopes , a Sand Drift Fence (4" by 4" slats ) and
sand and plant nourishment along the shoreline, in coastal resource areas . Property is on
116 The Tides Court, 58/46 (4/61 ) .
( Continued Hearing ) David Lapidus , Trustee , Davis Lapidus Trust, and Fotoulla Nicole
Lapidus , Trustee , Fotoulla Nicole Lapidus Trust, propose a variance from the Brewster
Wetlands Protection Bylaw, to install two rows of 5-foot by 4-foot double coir layer, jute filled
envelopes , one row of 3-foot by 3-foot coir envelopes , a Sand Drift Fence (4" by 4" slats) and
sand and plant nourishment along the shoreline , in coastal resource areas . Property is on
115 The Tides Court, 58/44 (4/56 ) .
( Continued Hearing ) Robert L Porter and Carol B . Porter propose a variance from the
Brewster Wetlands Protection Bylaw, to install two rows of 5-foot by 4-foot double coir layer,
jute filled envelopes , one row of 3 -foot by 3 -foot coir envelopes , a Sand Drift Fence (4" by 4"
slats) and sand and plant nourishment along the shoreline, in coastal resource areas .
Property is on 90 The Tides Court, 5911 (4/60 ) .
( Continued Hearing ) Thomas A. and Maria Gordon propose a variance from the Brewster
Wetlands Protection Bylaw, to install two rows of 5-foot by 4-foot double coir layer, jute filled
envelopes and one row of 3-foot by 3 -foot coir envelopes , a Sand Drift Fence (4" by 4" slats)
and sand and plant nourishment along the shoreline, in coastal resource areas . Property is
on 88 The Tides Court, 59/2 (4/20 ) .
Klein/Evans continue the hearing to 3/19/ 19 . AU ** .
Continued Hearing ) Kevin and Elizabeth Hoffman propose a variance from the Brewster
Wetlands Protection Bylaw to install two rows of 3-foot by 3 -foot sand filled coir envelopes , a
Sand Drift Fence (4" by 4" slats ) and sand and plant nourishment on a Coastal Beach and
Coastal Dune . Property is on 286 Robbins Hill Road , 38/81 ( 2/9 ) .
Smith/Evans continue the hearing to 3/ 19/ 19 . AU **.
( Continued Hearing ) Deborah A . Bond =Kennedy and Michael G . Kennedy proposes a
variance from the Brewster Wetlands Protection Bylaw for coastal bank and dune stabilizing
consisting of coir envelopes , sand , etc. , nourishment and replacement of snow fence with 4
by 4-inch slat Sturdy Drift Fence — in coastal resource areas . Property is on 306 Breakwater
Road , 58/32 (4/11 ) .
The Conservation Commission continued the public hearing of December 18 , 2018 to allow the
CA to retain a coastal expert as consultant to review the project.
Summary of Applicant Testimony
Robert M Perry , PE , Cape Cod Engineering , represented the applicant. He described the revised
project as contained on the site plan * as he believed to be in accordance with the Conservation
Commission ' s written report from its coastal expert , Greg Berman * . It reduces the coir structure
on both the east and west ends .
Summary of Staff/Conservation Commission Comments
Discussion centered on the need to keep the coir covered with sand and that the project allow
sediment transport . The coir may be uncovered for no more than 30 days following coastal
storms , but covered entirely as soon as possible . It was also established that no native shrubs
shall be removed from jurisdictional areas , should access to the project be required from the
south side of the property .
Klein/Smith continue the hearing to 3/ 19/ 19 AU .
Brewster Conservation Commission Minutes March 5 , 2019 3
1 . Cape Cod Engineering , Inc . , Topographic Plan for Proposed Erosion Management
Measures at 306 Breakwater Road , rev . 2122119 , Narrative , 2/27/19
2 . Greg Berman , Coastal Processes Specialist Woods Hole . . . CC Cooperative
Extension , correspondence to Brewster CC , Site Visit to 306 Breakwater Road ,
2/1 /19
In accordance with Chapter 79 of the Acts of 2006 , "An Act Further Regulating Meetings
of Municipal Boards" which amends Massachusetts General Laws Chapter 39 , Section
23D , Chairman Michael Tobin certified in writing that he thoroughly examined all
evidence received at the public hearing of February 19 , 2018 , the only previous
testimonial hearing he did not attend . Examination of evidence included visiting the site ,
reviewing all evidence received and the video recording and/or transcript of the hearing ,
prior to the proceeding hearing .
( Continued Hearing ) George and Karen Snyder, propose a variance from the Brewster
Wetlands Protection Bylaw to remove a portion of the dwelling/garage within 50 feet of inland
wetlands and reconstruct within 100 feet of wetlands. Property is on 154 The Channel Way,
58171 (4/27 -2) .
Following review of findings under the WPA and BWP By- law and special conditions under the
BWP By- law, Klein moved , Evans seconded the motion to close the hearing , approve the project . . .
with findings and special conditions as drafted , and issue an Order of Conditions . The
Conservation Commission unanimously approved the motion . Eligible voters: Bruce
Evans, William Klein, Nicole Smith, Michael Tobin (4-0 )
In accordance with Chapter 79 of the Acts of 2006 , "An Act Further Regulating Meetings
of Municipal Boards" which amends Massachusetts General Laws Chapter 39 , Section
23D , Chairman Michael Tobin certified in writing that he thoroughly examined all
evidence received at the public hearing of February 19 , 2018 , the only previous
testimonial hearing he did not attend . Examination of evidence included visiting the site ,
reviewing all evidence received and the video recording and/or transcript of the hearing ,
prior to the proceeding hearing .
( Continued Hearing ) Cobbs Pond Condominium Association proposes a variance from the
Brewster Wetlands Protection Bylaw to restore and manage vegetation on and within 50 feet
of coastal wetlands . Property is on Wauquanesit Drive , 57/5 and various ( 17/various ) .
The Conservation Commission continued the February 19'h hearing to allow time for changes to
the mitigation plan and for the Conservation Administrator to draft findings and special conditions
for an Order of Conditions for the project.
Summary of Applicant Testimony
John O ' Reilly , PE , PLS , J . M . O' Reilly , Inc. , and Catrin Higgins , Wilkinson Ecological Design ,
represented the applicant.
Discussion centered on amendments to the special conditions for the project, which shall include
the Commission 's request to retain many of the native cherry trees .
Following review of findings under the WPA and BWP By- law and special conditions under the
BWP By- law, Klein moved , Evans seconded the motion to close the hearing , approve the project. . .
with findings and special conditions as amended , and issue an Order of Conditions . The
Conservation Commission unanimously approved the motion . Eligible voters: Bruce
Evans, William Klein, Nicole Smith, Michael Tobin (4-0 )
Brewster Conservation Commission Minutes March 5 , 2019 4
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . Wilkinson Ecological Design Restoration Plan Wauquanesit Drive 2/28/19
( Continued Hearing ) John and Carolyn Keith propose to build an addition to a single
family dwelling , including a one-car garage , within 100 feet of inland wetlands . Property is
on 5 Fisher Point Road , 19/24 (51 /53 ) .
Eligible voters: All. Hearing opened February 19, no testimony.
The project is located on the MA Natural Heritage and Endangered Species Map* as an area of
rare plant and wildlife habitat and rare wetlands wildlife . *
Summary of Applicant Testimony
Matt Farrell , J . M . O ' Reilly , Inc . , represented the applicant. He described the resource areas and
project as contained in the Notice of Intent, narrative , variance request and plan *. He added that
the Conservation Commission continued the original hearing of February 19 , 2019 , to allow him
to submit a revised plan to include an existing formerly unpermitted on -ground stairway to Elbow
Pond and an unpermitted and unlicensed seasonal dock .
Summary of Staff/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site
plan * .
Discussion centered primarily on proposed erosion control methods and native woody plants for
mitigation for the project .
Summary of Public Comments
The public had no comment.
Klein/Evans continue the hearing to 3/ 19/19 , to allow the Conservation Administrator to draft
findings and special conditions for an Order of Conditions for the project. AU ** .
The Commission will also await a response from the MA Division of Fisheries and Wildlife , MA
Natural Heritage and Endangered Species Program as to the project' s occurrence in and
potential effect on . . . endangered species .
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . Plot Plan Prepared for: . . . Keith 5 Fisher Point Rd . Plan , 2/26/19 , Narrative, rev. 3/1 /19
In accordance with Chapter 79 of the Acts of 2006 , " An Act Further Regulating Meetings of
Municipal Boards" which amends Massachusetts General Laws Chapter 39 , Section 23D ,
Chairman Michael Tobin certified in writing that he thoroughly examined all evidence
received at the public hearing of February 19 , 2018 , the only previous testimonial hearing
he did not attend . Examination of evidence included visiting the site , reviewing all evidence
received and the video recording and/or transcript of the hearing , prior to the proceeding
hearing
(Continued Hearing ) Joshua and Jessica Lutzker propose to amend Order of Conditions SE
94699 , to alter a vegetation management plan , including removing species in serious decline
and planting native species in and within 50 feet of coastal wetlands . Property is on 45 Dune
Road , 79/32 (6/15 ) .
Eligible voters: Evans, Klein, Smith, Wells Hearing opened February 19, testimony taken.
Under the Brewster Wetlands Protection By-law only , Dennis Orlov proposes to construct
a single family dwelling within 100 feet of inland wetlands . Property is on Lot A , Old Red Top
Road , 12196 ( 37 56/103 ) .
The project is not located on the MA Natural Heritage and Endangered Species Map* as an area
of rare plant and wildlife habitat and rare wetlands wildlife .
Brewster Conservation Commission Minutes March 5 , 2019 5
Summary of Applicant Testimony
John O ' Reilly , J . M . O ' Reilly & Associates , Inc . , represented the applicant. He described the
resource area and project as contained in the Notice of Intent, narrative , variance and plan *.
Summary of Staff/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site
plan *.
Discussion centered on Commission/Staff concern over vegetation removal for the project, and
native plant mitigation .
Summary of Public Comments
The public had no comment .
Smith/Klein continue the hearing to March 19 , 2019 , to allow the applicant to submit revised
mitigation information and for the Conservation Administrator to draft findings and special
conditions for an Order of Conditions for the project . AU ** .
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . J . M . O' Reilly & Associates, Inc . Site Plan, Proposed Sewage Disposal . . . Lot A Old Red Top Road,
2/11 /19 Narrative
Citizens ' Forum
The public had no comment at this time .
Report of the Natural Resources Director NR
) and had no report at this time .
Report of the Conservation Administrator CA
The CA had no report at this time .
Review of Plan Change
Allard/McGinnis 2484 Main Street, 70/98 ( 15/121 ) Determination of Applicability - request to
build the 3 small additions on a 4 foot frost foundation using a small excavator, outside of
the 50 ' buffer zone and , per the conditions of the Determination , placing a slit fence with
stacked hay bales for erosion control .
Evans/Klein Approve . AU
Public Hearings ( Continued )
Request for Determinations of Applicability
Eugene M and Kristin M . Noel request determinations as to whether the area — 100 feet
from inland wetlands , and the work - grading , tree removal and native tree replacement,
are subject to the Wetlands Protection Act and jurisdiction of the BWP � Bylaw. Property is
on 32 Barberry Lane , 68/14 ( 5/217) .
Summary of Applicant Testimony
John O ' Reilly, J . M . O ' Reilly , Inc . , represented the applicant . He described the resource areas
and project as contained in the Request for Determination and displayed plan *.
Summary of Public Comments
Mr. Scott Kerns , abutter to the project, attended , with concerns over the project' s potential
erosion impact to the wetland to the south , bordering Myrick' s Pond , and loss of wildlife in the
pond .
Brewster Conservation Commission Minutes March 5 , 2019 6
Klein moved , Evans seconded the motion to close the public hearing and issue determinations ,
as shown :
Negative Determination
3 . The work described in the Request is within the Buffer Zone , as defined in the regulations ,
but will not alter an Area subject to protection under the Act . Therefore , said work does not
require the filing of a Notice of Intent, subject to the following conditions ( if any) .
Special Conditions shall be detailed in a letter to the applicant from the Conservation
Commission agent , and shall include a condition on strict adherence to erosion
control measures to protect the wetland .
6 . The area and/or work described in the Request is not subject to review and approval by
Town of Brewster Pursuant to the Code of the Town of Brewster Wetlands Protection Bylaw,
The Conservation Commission unanimously approved the motion .
*List of documents submitted for the Request for Determination and discussed at this hearing
2 . J . M . O' Reilly & Associates, Inc. Site Plan, 32 Barberry Lane, 2/14/19
Request for Extension to Order of Conditions
1 . Thorne , SE 9 -16931 958 Satucket Road , 35/49 ( 36/23 ) .
Following the recommendation of the Conservation Administrator, the Commission
approved the above referenced request for an extension under the MA ACT and
BWP Bylaw, for one year. Klein/Evans AU * * .
2 . Camp Wono , Inc. , 3057 Main Streets Order of Conditions SE 9-1697 ; 101 /45 (818 )
No Action ,
3 . Ocean Edge SE 9 -1701 , 2907 Main Street, 90/160 ( 14/149 )
No Action .
Review of Minutes
1 . February 19 , 2019
** Having reviewed the above referenced minutes , the Commission approved them as
written . Smith/Evans AU ** .
Document signatures
Any Topics not reasonably anticipated by the Conservation Commission Chairman
No topics discussed .
Adjourned at 7 : 30 PM .
Carol Spade
** (Commissioner) Moved , (Commissioner) Seconded . Denied = D Approved = A Approved
Unanimously = AU .
*Note:
The words, "wetland" and "resource area " are synonymous.
The 100 and 50 foot buffer zone is the protective upland area located within 100 and 50 feet
of a wetland .
As the municipal focal point for environmental protection Conservation Commissions were given the
responsibility in 1972 for administering the ACT. Since that time the Commissions have served in a
regulatory as well as a conservation capacity .
In 1979 , Lovequist v. Conservation Commission of Town of Dennis, the Supreme Judicial Court upheld that
by-laws are not in conflict with the Wetlands Protection Act, so long as they impose stricter standards on
projects affecting wetlands and other resource areas.
Among the list of documents * for this meeting are the following:
Brewster Conservation Commission Minutes March 5 , 2019 7
It Conservation Commission Approved Planting List: Cape Cod Cooperative Extension Service
(www. capecodextension. org), list of native woody plants for coastal/inland wetland buffer zones depicting the
species, size and natural spacing of plants
2. Massachusetts Department of Agricultural Resources . . .Invasive Plants in Massachusetts 111105
3. Administrative Report of the Conservation Administrator
4. Meeting video recording, Town of Brewster Website htip://town. brewster. ma. us
Brewster Conservation Commission Minutes March 5 , 2019 8