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HomeMy Public PortalAboutConservation Commission -- 2020-06-09 Minutes Brewster Conservation Commission Minutes — Meeting Under 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 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 � I`+ ; 1Er"r li+':'r; r":1 + ;f. Under the Massachusetts Open Meeting Law, Chairman Michael Tobin called to order the Tuesday, June 9 , 2020 meeting of the Brewster Conservation Commission at 4 : 00 PM at the Brewster Town Offices , 2198 Main Street, Brewster, MA, Present Chairman Michael Tobin , Vice Chairman Nicole Smith , Commissioners Bruce Evans , Gary Kaser, Peter Wells , Conservation Administrator Noelle Aguiar, Natural Resources Director Chris Miller, Carol Spade " Bruce Evans , Present" , " Gary Kaser, Present" , " Nicole Smith , Present" , " Peter Wells , Present" , " Michael Tobin , Present" , " Noelle Aguiar, Present" , " Chris Miller, Present" , " Carol Spade, Present" 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 . Others intending to record are required to inform the Chairman prior to the meeting. Pursuant to Governor Baker's March 12 , 2020 Order Suspending Certain Provisions of the Open Meeting Law and his March 15 , 2020 Order imposing strict limits on the number of people that may gather in one place , this meeting will be conducted via remote participation to the greatest extent possible . Specific information and the general guidelines for remote participation by members of the public and/or parties with a right and/or requirement to attend this meeting may be found on the Town 's website at www. brewster-ma .qov . For this meeting , members of the public who wish to listen to the audio broadcast may do so via the Town of Brewster livestream at httD ://livestream . brewster-ma . gov or on Channel 18 . No in -person attendance of members of the public will be permitted , but every effort will be made to ensure the public can adequately access the proceedings in real time via technological means . The Town has established specific email addresses for each board and committee that will be meeting remotely so that residents can send their comments in writing either before or during the meeting . In the event we are unable to live broadcast these meetings , despite best efforts , we will post on the Town website an audio recording , transcript, or other comprehensive record of proceedings as soon as possible after the meeting . The Public Meeting Packet for the hearings is available for download at: httDm//records . Brewster-ma .aov/WebLink/0/fol/118271 /Row1 . asDx Send comments on items from the Conservation Commission agenda to : conservationmeetinq (a Brewster-ma . gov " Mr. Tobin then explained the rules for remote meeting participation . Conservation Commission vote of support for Massachusetts Office of Energy and Environmental Affairs Brewster Climate Change Education and Preparedness Campaign MVP Action Grant Proposal Brewster Conservation Commission Minutes June 9 , 2020 1 Evans/Kaser AU**. " Bruce Evans , Aye" , "Gary Kaser, Aye" , " Nicole Smith , Aye " , " Peter Wells, Aye" , "Michael Tobin , Aye" Under MA General Laws Chapter 40, Section 8C Former Graham Conservation Restriction , 0 Stony Brook Road , 35118 (22/66) — Request for Conservation Commission Approval and Signatures Evans/Kaser AU**. " Bruce Evans , Aye" , "Gary Kaser, Aye" , " Nicole Smith , Aye" , " Peter Wells, Aye" , " Michael Tobin, Aye" Land Grant Program McGuerty Road Aquifer Protection Project, 10.41 Acres — Request for Conservation Commission Approval and Signatures Evans/Kaser AU **. " Bruce Evans , Aye" , "Gary Kaser, Aye" , " Nicole Smith , Aye" , " Peter Wells, Aye" , " Michael Tobin , Aye" Under M . G . L. C . 131 . §40 And BWP By-law Public Hearings Notices of Intent Continued - John and Cori Chandler propose to demolish , and to reconstruct a dwelling further from resource areas, restore an existing lawn to native plantings and propose other natural amenities within 50 and 100 feet of Inland Wetlands , on 218 W. H . Besse Cartway, 83/63 (41 /19 ) The Conservation Commission continued the May 26 , 2020 hearing to allow public/abutter comment, and for the applicant to revise the plan to reduce the size of the accessory structure. Summary of Applicant Testimony John O' Reilly, PE , PLS , J . M . O' Reilly, Inc. , Seth Wilkinson , MALD , Wilkinson Ecological Design (WED) , and Craig Schneeberger, Certified Arborist, Bartlett Tree Experts , represented the applicant . Mr. O' Reilly referenced a letter* he submitted dated May 29 , 2020 , responding to the May 26 , 2020 public hearing . He stated it explains the existing and proposed conditions of the parcel , adding that the applicant is not making any changes to the proposal other than agreeing to plant three additional native trees to compensate for the beech tree removal . Through the course of discussion and in response to abutter comment , Mr. O' Reilly stated that the Conservation Commission has historically ruled that applicants not place or expand structures within 50 feet of wetlands , reminding the Conservation Commission that the existing cottage is in the 50 foot buffer zone and proposes a rebuilt structure outside of 50 feet to wetlands . The project proposes 7200 square feet of diverse species mitigation which a mixture of trees , shrubs and herbaceous vegetation which planted together, serve to protect against stormwater runoff, protect wildlife habitat and control erosion . Mr. O' Reilly reintroduced Mr. Wilkinson and Mr. Schneeberger, to explain specifics regarding the vegetation plan . "Seth Wilkinson, Present" Mr. Wilkinson stated that WED submitted information subsequent to the last public hearing , which specifies the replacement trees . In total are two serviceberry (Amelanchiercanadensis) of which he has seen reach heights of 29 feet, witch hazel (Hamamelis v/rg/n/an/a) which also can reach that height, and nine arrowwood ( Vibumum dentatum). All are defined as trees or very large shrubs . The exact locations of the three additional trees in the 100 foot buffer zone have not been established because the property owners have not been able to travel to Cape Cod given current circumstances. They hope the Commission believes their presence on the site to help determine the location , is reasonable . In responding to letters from abutters , Mr. Wilkinson stated that as contained in the MA DEP Stormwater Handbook* for buffer zones to wetlands, a combination of diverse specie native trees, shrubs , grasses and forbs contain dense, porous, fibrous roots which direct stormwater downward into the ground and treat stormwater runoff into wetlands , including ponds, more effectively than trees alone. He added that even the water from clouds has elevated nutrients which adversely affect the environment, given climate change. Brewster Conservation Commission Minutes June 9 , 2020 2 "Craig Schneeberger, Present" Mr. Schneeberger stated that he identified the beach tree stress (also discussed on May 26*) , immediately when visiting the site. He identified diseased ieaf stems on the beech trees which were growing close to the pond in an area of land subject to flooding. He repeated that the Pytophthora water mold is in the soil permanently, and only its removal will solve the problem of this fungus which is adversely affecting the beech trees, the other vegetation and the wetlands surrounding the pond. He noticed also that fill was added to the soil to create the existing parking area, which was built so close (within 50 feet of) to the resource areas. The fill was added next to the trees and packed high around them , which added stress to the beech trees. Through the course of discussion , Mr. Schneeberger repeated it was his recommendation to the property owners to remove the stressed beech trees and contaminated soil located within 50 feet of the pond . Summary of Staff/Conservation Commission Comments Discussion included questions on stormwater management, invasive species location and beech tree removal. Mr. Wilkinson expanded on invasive plant species located on the site . He stated that the species include Asiatic bittersweet and vine honeysuckle located near the pond, in addition to the beech trees , as the species with the greatest potential to impact future woodland health , as contained in the submitted management plan* and restoration plan*. As to expansion of the structure, the Commission consensually agreed that as has been the case historically, the Conservation Commission shall focused on the impact of any structural expansion within 50 feet of wetlands, the variance criteria, as the central area of concern . Ms. Aguiar stated that removing the beach trees and the contaminated soil is , in her opinion, a very effective measure to preserve the wetland environment at this site. Vice Chairman Smith stated that she agrees with Ms. Aguiar. The Commission concluded that Patrick Ellis , Town of Brewster Tree Warden, will meet with Ms . Aguiar on the site for the beech tree examination in the coming week, and submit a subsequent written opinion on the beech trees located within 50 feet of Long Pond on the subject property. Ms. Aguiar read abutter letters/concerns. The letters included a resource area delineation dispute , concern over the beech tree removal and expansion of the structure within the 100 foot buffer zone. Letters and/or photos* were from persons, as follows: 1 . Ken Robinson 2. Cheryl Strough 3. Beth Robinson 4. Chet Robinson 5. Susan Rocanello Evans/Kaser continue the hearing to June 23 , at 6 : 15, to allow the Conservation Administrator to draft findings and special conditions for an Order of Conditions for the project. Draft conditions shall include an option to consider or not consider conditions pertaining to the beech tree and Pytophthora soil contamination in the 50 foot buffer zone to wetlands. AU ** "Bruce Evans, Aye", "Gary Kaser, Aye" , " Nicole Smith , Aye" , " Peter Welts , Aye " , " Michael Tobin , Aye" *List of documents submitted for the Notice of Intent and discussed at this hearings 1 . J M O' Reilly, Letter, May 29, 2020 2. MA DEP Handbook of Stormwater 3. Wilkinson Ecological Design Management Plan, 218 W H Besse Cartway, 5/6/20 4. Wilkinson Ecological Design Restoration Plan, Chandler, 218 W H Besse Cartway 5/5/20 5. Conservation Commission Minutes , May 26, 2020 6. Letters : • Ken Robinson • Cheryl Strough • Beth Robinson • Chet Robinson • Susan Rocanello Brewster Conservation Commission Minutes June 9 , 2020 3 Under Massachusetts General Law Chapter 40, Section 8C, Conservation Commission Act Slough Pond Conservation Restriction - Conservation Commission vote of its intent and approval to hold a permanent conservation restriction on Slough Pond parcel of land in Brewster. This property is under agreement for acquisition by the Brewster Conservation Trust ( BCT) . Evans/Kaser AU** . " Bruce Evans , Aye" , "Gary Kaser, Aye" , " Nicole Smith , Aye" , " Peter Wells, Aye" , " Michael Tobin , Aye" Under M .G . L. C . 131 . §40 And BWP By-law Public Hearings Notices of Intent (Continued ) Continued - Maureen Ryan proposes to plant native plantings within 50 feet of Inland Wetlands , on 183 Brier Lane, 48119 (19/34) Following review of findings under the WPA and BWP By-law and special conditions under the BWP By-law, Evans moved , Kaser 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, Gary Kaser, Nicole Smith, Peter Wells, Michael Tobin (5-0) " Bruce Evans , Aye" , "Gary Kaser, Aye" , " Nicole Smith , Aye" , " Peter Wells, Aye" , " Michael Tobin , Aye" Continued - Thomas and Susan Meyer propose to demolish an existing deck and access stairs and construct an expanded deck, add new access stairs , an outdoor shower and walkway within 50 feet of an Inland Bank, and expand an existing driveway within 100 feet of an Inland Bank on 361 Slough Road , 11150 (38/102) The project proponent submitted a written request to continue the above referenced hearing to July 7 , 2020 . Evans/Kaser Continue to July 7, 2020 . AU** " Bruce Evans , Aye" , " Gary Kaser, Aye" , " Nicole Smith , Aye" , " Peter Wells, Aye " , " Michael Tobin , Aye" Citizens' Forum The public had no comment at this time Report of the Natural Resources Director ( NR) The NR had no report at this time . Report of the Conservation Administrator (CA) Violation , Wetlands Protection Act (WPA), 310 CMR 10 .00 and Brewster Wetlands Protection Bylaw (BWP Bylaw) 582 Gull 's Way, 74198 (34/36) The Conservation Administrator reported on a wooden dock installed in the waters of Sheep' s Pond , for which no wetland permit was obtained . She issued a notification letter to the property owners in December of 2019 , explaining this requirement, and Natural Resources Director Miller spoke to them as well . Additionally, the dock requires a license under Chapter 91 of MA General Laws which allows the public to navigate around the structure . The Conservation Commission has no proof of that license . Furthermore, the dock was not constructed in accordance with regulations of the BWP By-law, Part IX. Docks and Piers • 9 . 01 9 . 04 Seasonal Docks : The Commission requires docks be seasonal and temporary in nature unless an overriding rationale can be made for a permanent structure on a case by case basis . • The distance between the decking shall be a minimum of 3/8 inch , to allow sunlight to penetrate underneath . 9.09 Building materials : Aluminum is the preferred construction material due to its light weight and non-leaching characteristics . The Conservation Administrator shall issue an Enforcement Order to the property owners , requiring removal of the dock within 30 days . Review of Plan Changes Brewster Conservation Commission Minutes June 9 , 2020 4 1 . Bruno Order of Conditions SE 94840 - request as to whether the addition of forty-eight square feet to a permitted patio in the 50 foot buffer zone to Coastal Wetlands shall constitute a minor change to plan - on 279 Crocker Lane, 69/6 (5/201 ) John O' Reilly, J M O' Reilly , represented the applicant . Evans/Kaser AU** " Bruce Evans , Aye" , "Gary Kaser, Aye " , " Nicole Smith , Aye" , " Peter Wells , Aye" , " Michael Tobin , Aye" Mr Evans was recused from the following two requests . 2. Ocean Edge Resort LTD Partnership; SE 94701 — request as to whether picnic tables on the beach, each with several chairs , and other changes in light of the Covid 19 pandemic — shall constitute a minor change to plan — on 2907 Main Street, 90/160 (14/149) "Tom Devane, Present" Mr. Tom Devane , representing Ocean Edge Resort, attended remotely. Kaser/Wells Approved . "Gary Kaser, Aye" , " Nicole Smith , Aye" , " Peter Wells, Aye" , " Michael Tobin, Aye" 3. Ocean Edge Resort & Golf Club, Blueberry Pond ; Determination of Applicability - request as to whether paving of existing walkways, etc. , shall constitute a minor change to plan - on 195 Villages Drive, 89/1 -3362 (39-5) Kaser/Wells Approved. "Gary Kaser, Aye" , " Nicole Smith, Aye" , "Peter Wells, Aye" , "Michael Tobin , Aye" Mr. Evans resumed remote participation in the meeting . Request for Certificate of Compliance 1 . SE 9-543, 313 Nelson Street, 91 /5 (7/7) Wells/Evans " Bruce Evans , Aye" , "Gary Kaser, Aye" , " Nicole Smith , Aye" , " Peter Wells , Aye" , " Michael Tobin , Aye" Request for Administrative Review 1 . Strauss , 114 Canoe Pond Drive, 24/59 (36/229) tree removal Evans/Kaser AU **. " Bruce Evans , Aye" , "Gary Kaser, Aye" , " Nicole Smith , Aye" , " Peter Wells , Aye" , " Michael Tobin , Aye" Review and Approval of Minutes 1 . April 21 , 2020 2 . May 26 , 2020 Evans/Kaser AU **. " Bruce Evans , Aye" , "Gary Kaser, Aye" , " Nicole Smith , Aye" , " Peter Wells , Aye" , " Michael Tobin , Aye" Report of the Conservation Administrator (CA) (continued ) The Conservation Commission discussed a letter from Brandon , a student at Chatham Elementary School , who was concerned over the water quality in the ponds in Brewster and asked if creating a new pond to contain contaminants would be a good solution . Conservation Administrator Noelle Aguiar will send a letter to Brandon , thanking him for his well-written letter and his interest in protecting Brewster' s many ponds , and stating that the Town of Brewster addresses the water quality in ponds through such groups as the Water Quality Review Committee . The committee consists of some state experts on pond environments and others , including Brewster Conservation Commissioner Bruce Evans and Town of Brewster staff including Natural Resources Director Chris Miller. Additionally is the other Natural Resources staff who remove noxious vegetation from ponds , and the Conservation Commission , which protects wetlands including the land under ponds . The letter will explain that other resources for protecting Brewster' s pond environments can be found on the Town of Brewster Website on page one , in an area entitled "Water Planning" . Clicking on the icon there leads to a page explaining the groundwater and ponds have been researched by scientists at the firm , Horsley and Witten since 2009 and that study of the ponds is ongoing . Town of Brewster Website http://town. brewster. me, us Evans/Kaser Adjourn AU** . " Bruce Evans , Aye" , "Gary Kaser, Aye" , " Nicole Smith, Aye" , " Peter Wells , Aye" , " Michael Tobin , Aye" Brewster Conservation Commission Minutes June 9 , 2020 5 Adjourned at 5 :40 PM . Carol Spade **(Commissioner) Moved , (Commissioner) Seconded . Denied = D Approved = A Approved Unanimously = AUG *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 Massachusetts Wetlands Protection Act (WPA) . 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 coastaUnland wetland buffer zones depicting the species, size and natural spacing of plants Z Massachusetts Department of Agricultural Resources . . . lnvasive Plants in Massachusetts 111105 3. Administrative Report of the Conservation Administrator 4. Meeting video recording, Town of Brewster Website http://town. brewster. ma. us Brewster Conservation Commission Minutes June 9 , 2020 6