HomeMy Public PortalAboutConservation Commission -- 2019-12-03 Minutes Brewster Conservation Commission Minutes — Meeting Under
Massachusetts General Law Chapter 40, Section 8C, Conservation Commission Act
Massachusetts General Law Chapter 139, Section 40,
Wetlands Protection Act (WPA) , 310 CMR 14.00 Regulations
Massachusetts Department of Environmental Protection ( MA DEP) ' 1yI_ 2(1,
(M . G . L. C . 131 . § 40)
And BREI STE Iii CLERK.
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 called to order the Tuesday ,
December 3, 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 , Peter Wells ,
Conservation Administrator Noelle Aguiar, Natural Resources Director Chris Miller, Senior Department
Assistant Carol Spade
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 . "
Public Hearing
Notice of Intent
Marjorie P. Kroger and John Austin propose to construct an asphalt driveway and retaining wall
within 100 feet of an inland resource area . Property is on 0 Paine's Creek Road , 36122 (33125-7).
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 . *
The proponent received a letter from Everose Schluter, PhD , Assistant Director, MA Division of Fisheries
and Wildlife Natural Heritage and Endangered Species Program (NHESP) ; determining that the project, as
proposed will occur within the actual habitat of the Eastern Box Turtle ( Terrapene carolina) , a species of
special concern . The species and their habitats are protected in accordance with the rare species provisions
of the WPA and the MESA . . .
The project occurs within jurisdictional areas of significant historic or archaeological resources , as protected
under the Brewster Wetlands Protection By- law, The Notice of Intent was not submitted to the MA Historical
Commission .
Summary of Applicant Testimony
Matt Farrell , J . M . O ' Reilly , Inc. , represented the applicant . He described his estimation of the resource
areas of the project site, and described the project as contained in the Notice of Intent , narrative and plan*.
Summary of Staff/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site plan* .
Discussion was as follows:
The reason for the asphalt driveway as an alternative to a pervious drive .
Mr. Farrell explained that the length of the drive dictated the asphalt, and that what is known as a
"Cape Cod Berm" protects the wetland from stormwater impacts , as shown on the proposed plan .
Mitigation measures for the driveway, etc.
The Commission agreed the applicant shall revise the plan to depict mitigation for areas closest to
the 50 foot buffer zone to wetlands, with a protective area of native shrub plants appropriate for
inland wetlands , and to show no lawn within 100 feet of wetlands.
Brewster Conservation Commission Minutes December 3 , 2019 1
Ms . Aguiar requested that Mr. Farrell submit 310 CMR 10 . 55 Delineation Field Data Forms
for all wetlands , and that all such areas and/or their associated buffer zones shall be depicted on this revised
site plan .
Ms . Aguiar requested that Mr. Farrell submit a copy of the Notice of Intent to the MA Historical Commission ,
as the project is on an undisturbed lot and occurs within jurisdictional areas of significant historic or
archaeological resources (BWP By-law, Section 172A ; Historic Values) .
Mr. Miller addressed the Commission ; stating that the project on 0 Paine' s Creek Road is near properties
owned by the Town of Brewster and the Brewster Conservation Trust. The entire area is in an area mapped
by the Commonwealth of MA as Priority Habitat of Rare Species under the Endangered Species Act
Regulations (321 CMR 10) .
The proponent's letter* from Everose Schluter, PhD , Assistant Director, MA Division of Fisheries and Wildlife
Natural Heritage , required that to avoid a Take of the Eastern Box Turtle , a portion of the project must be
conditioned for its protection . The conditions were detailed in the letter. "Take" under the MA Division of
Fisheries and Wildlife , Natural Heritage , includes killing , disruption of nesting , breeding , feeding or migratory
activity, etc.
Summary of Public Comments
The public had no comment.
Smith/Wells continue the hearing to December 17 , 2019 , to allow Mr. Farrell to submit all of the requested
information . The Conservation Administrator shall 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 . Site Plan , J . M . O' Reilly & Associates , Inc . , Site and Sewage Disposal System Design 0
Paine's Creek Road , 11 /4/19
2 . November 27 , 2019 letter from Everose Schluter, PhD , Assistant Director, MA Division
of Fisheries and Wildlife Natural Heritage and Endangered Species Program ( NHESP) :
Construction of single family home and associated appurtenances NHESP File 19 =39019
Citizens' Forum
The public had no comment at this time .
Report of the Natural Resources Director NR
The NR reported that workers have mostly completed the alum treatment in Upper Mill Pond , Satucket Road
(Order of Conditions SE 9- 1754) .
Report of the Conservation Administrator CA
The CA reported the following :
She will issue letters to additional property owners whom she determined through aerial surveying have
unpermitted docks.
She issued an Enforcement Order to property owners on 1028 Stony Brook Road , to whom she wrote a letter
on March 28 , 2018 regarding an unpermitted dock. She received no response from that letter.
The Department will place the Enforcement Order on the agenda of December 17 , 2019 , requesting the
Conservation Commission vote on ratification of the Enforcement Order.
In answer to Commissioner Evans as to whether the dock meets the standards for a dock allowable under
wetland regulations , Ms . Aguiar responded that all docks require a valid permit under the Massachusetts
General Law Chapter 131, Section 40, the Brewster Wetlands Protection Bylaw (BWP Bylaw) . The docks she
referenced have no such permit.
In addition , Chapter 91 of MA General Laws requires that any dock on a Great Pond , or a pond of 10 or more
acres as defined under Massachusetts Law, shall be licensed under Chapter 91 , to allow all persons to fish , fowl
and navigate around that dock.
Requests for Extensions to Order of Conditions
Brewster Conservation Commission Minutes December 3 , 2019 2
1 . Sea Pines Condominium Association, SE 94730 Sea Pines Drive, 78177, etc . (6/20)
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 three years .
Wells/Evans AU** .
Review of Plan Change
1 . Bay Pines Development Company, Inc. , Order of Conditions SE 9 -1701 - request as to
whether removing selective lower limbs from several trees shall constitute a minor
change to plan — on 2907 Main Street; 90/160 ( 141149) .
The Conservation Commission agreed the above plan change shall be considered minor, and
approved . The plan shall be designated by the Conservation Administrator as the approved plan of
record . Smith/Wells A** Bruce Evans abstained .
2 . Pierce, Order of Conditions SE 9-18371 - request as to whether shifting a vista corridor
to the west to protect native species shall constitute a minor change to plan — on 137
Regatta Road , 27/72 (2217-2) .
The Conservation Commission agreed the above plan change shall be considered minor, and
approved . The plan shall be designated by the Conservation Administrator as the approved plan of
record . Evans/Smith/Wells AU**
Minutes
November 5, 2019
1 . November 5, 2019
** Having reviewed the above referenced minutes , the Commission approved them as written .
Evans/Smith AU **.
Any Topics not reasonably anticipated by the Conservation Commission Chairman
No topics discussed .
Discussed as follows :
Adjourned at 6 :35 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:
1 . 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 111/05
3. Administrative Report of the Conservation Administrator
4. Meeting video recording, Town of Brewster Website http://town. brewster. ma. us
Brewster Conservation Commission Minutes December 3 , 2019 3