HomeMy Public PortalAboutConservation Commission -- 2020-09-22 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 Regulationsig,
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 called to order the Tuesday ,
September 22 , 2020 meeting of the Brewster Conservation Commission at 6 : 30 PM at the Brewster Town
Offices , 2198 Main Street , Brewster, MA .
Present
Chairman Michael Tobin , Commissioners Bruce Evans , Gary Kaser, Greg Scalise , Peter Wells ,
Conservation Administrator Noelle Aguiar, Assistant Natural Resources Director Ryan Burch , Carol Spade
" Bruce Evans , Present" , " Gary Kaser, Present" , " Greg Scalise , Present" , " Peter Wells ,
Present" , " Michael Tobin , Present" , " Noelle Aguiar, Present" " Ryan Burch , Present" ,
" Carol Spade , Present"
Not Present
Vice Chairman Nicole Smith
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 . gov . 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
http ://Iivestream . 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 :
http • //records . brewster-ma . gov/WebLink/O/fol/118271 /Row1 . aspx
Send comments on items from the Conservation Commission agenda to .
conservationmeetinn (cDbrewster-ma . gov "
Mr. Tobin then explained the rules for remote meeting participation
Public Hearings
Brewster Conservation Commission Minutes September 22 , 2020 1
Request for Determinations of Applicability
Under M . G . L. C . 131 . §40 And BWP By-law
Public Hearings
Request for Determinations of Applicability
Irene Bagdoian and Paul Sangree request determinations as to whether the area — buffer zone to
wetlands , and the work — upgrade of a sewage disposal system - are subject to the Wetlands
Protection Act and jurisdiction of the BWP Bylaw. Property is on 55 Beaver Road , 103/4 (9/46 ) .
Summary of Applicant Testimony
Stephanie Sequin , PE , Ryder and Wilcox, Inc. , and William von Thaden , General Contractor, attended by
remote presentation as representatives of the applicant. "Stephanie Sequin , Present" , "William von
Thaden , Present"
Ms . Sequin described the two inland resource areas and project as contained in the Request for
Determination and plan * . She added that the lot is an area of low topography and high groundwater.
She and Mr. von Thaden stated that recently, the Conservation Commission issued negative determinations
for small additions . At that time , the Brewster Health Agent discovered that the septic system serving the
dwelling was in danger of failing and required replacement .
Summary of Staff/Conservation Commission Comments
Conservation Administrator Aguiar stated that she recommended the Conservation Commission issue
negative determinations , conditional on setting two rows of siltation barriers to protect the wetlands along
with other special conditions .
Summary of Public Comments
The public had no written comment .
Evans moved , Kaser 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 .
Bruce Evans , Aye » < <, Gary Kaser, Aye " , Greg Scalise, Aye , " " Peter Wells , Aye " " Michael Michael Tobin,
Aye "
* List of documents submitted for the Request for Determination and discussed at this hearing
1 . Ryder and Wilcox, Inc . , PE & PLS Site Plan , for 55 Beaver Road 9/2/20
2 . 310 CMR 10 . 55 Delineation Field Data Forms
Notices of Intent
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 , 11 /50 (38/102 )
i
Summary of Applicant Testimony
" David Clark, Present" , "Teresa Sprague , Present"
David Clark , PE , Clark Engineering LLX and Teresa Sprague , MALD , Blue Flax Design , attended by remote
participation as representatives of the applicant. Thomas and Susan Meyer attended remotely as well .
Thomas Meyer, Present" , "Susan Meyer, Present"
1
i
3
i
1
Brewster Conservation Commission Minutes September 22 , 2020 2
i
The Conservation Commission continued the public hearing of August 18 , 2020 , the first testimonial hearing
for this project , to allow the applicant to reduce the proposed deck in the 50 foot buffer zone to resource
areas , allowing only the deck expansion leading to the permitted stairs for access to the pond , and the other
portions of the deck in the 50 foot buffer zone , to be re-constructed in place with no expansion to the
existing .
Summary of Applicant Testimony
At Teresa Sprague' s request , some of the commissioners agreed to meet her and the Conservation
Administrator on the site prior to this continued hearing .
At this hearing , Ms . Sprague described the changes to the original revegetation plan* . They included native
plantings for the original expansions in addition to the deck extension on the south side of the lot which
connected the deck to an approved staircase leading to the pond . Ms . Sprague maintained that the native
plantings she proposed will atone as mitigation for the expanded deck in the 50 foot buffer zone .
Through the course of discussion , Ms . Sprague acknowledged that the dwelling and original deck were
approved in 1982 under the MA Act only , as the Town of Brewster had yet to enact a by-law with a variance
provision mandating that there be no new structure within 50 feet of wetlands .
The revised revegetation plan for the proposed deck* still depicts the deck enlargement in other areas of the
50 foot buffer zone . Ms . Sprague stated that the Conservation Commission often approves variances into
the 50 foot buffer zone and that the Commission will approve a variance on a case by case basis .
Summary of Staff/Conservation Commission Comments
As discussed at the original hearing on August 18 , Ms . Aguiar again cited the reasons variances are allowed
under the Brewster Wetlands Protection By-law; including that the Conservation Commission finds no
reasonable alternative for such a project within the proposed site ; and there will be no adverse
impact from the proposed project. Ms . Aguiar stated that variance approvals include projects such as
stairways and walkways to the water which serve to prevent pedestrian related erosion into the wetland .
She repeated that such an accepted alternative does not include **expanding a deck to contain multiple
tables and lounge chairs .
Commissioner Peter Wells added that the Conservation Commission cannot overstate the necessity of
not setting a precedent for requested variances under the BWP By- law . It should not grant one applicant
approval for a variance project** and not allow it for others .
The Conservation Commission consensually agreed they will vote to allow in the 50 foot buffer zone , the
deck expansion connecting the permitted stairs for access to the pond .
Summary of Public Comments
The public had no written comment .
Evans/Kaser continue the hearing to October 6 , 2020 , to allow time for the engineer to revise and submit a
site plan consistent with the items requested by the Commission at this hearing . AU ** .
" Bruce Evans , Aye " , " Gary Kaser, Aye " , "Greg Scalise, Aye, " " Peter Wells , Aye" , " Michael Tobin ,
Aye "
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . Blue Flax Design , Planting Plan 361 Slough Road , Rev. 9/1 /2020
David W Gomes and Cathryn L Samples propose Conservation Commission approval for an existing
unpermitted stone patio, and to remove ornamental plantings and replace them with native plantings
within 50 feet of Inland Wetlands , in addition to other amenities within 100 feet of Inland Wetlands ,
on 50 Clipper Way , 67/103 ( 26/4-24) .
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 .
Summary of Applicant Testimony
Brewster Conservation Commission Minutes September 22 , 2020 3
"John O ' Reilly, Present"
John O' Reilly, PE , PLS , J M O ' Reilly , Inc. , attended by remote participation as representative of the
applicant . He described the resource areas and project as contained in the Notice of Intent, narrative ,
variance request and plan* . He stated that the project is being held " after-the-fact" , or after construction of a
patio approximately 50 feet from inland wetlands , and explained the history of the case .
Mr. O' Reilly informed the Commission that the applicants propose to remove non- native hydrangea , etc . , in
the 50 foot buffer zone of wetlands , and replace the plantings with native woody and herbaceous plants
conducive to inland buffer zones , including arrowwood , mountain laurel and wintergreen .
David Gomes and Cathryn Samples , who are the very new owners of the property , have also requested
small changes within the 100 foot buffer zone in addition to the unpermitted work , to address accessibility ,
etc. , within the deck .
Summary of Staff/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site plan*.
Chairman Tobin requested the applicant be required to set a permanent barrier delineating the 50 foot buffer
zone to wetlands to deter further intrusion into this protective area .
Summary of Public Comments
The public had no written comment .
Evans/Kaser continue the hearing to October 6 , 2020 , to allow the Conservation Administrator to draft
findings and special conditions for an Order of Conditions for the project. AU ** .
" Bruce Evans , Aye" , "Gary Kaser, Aye" , " Greg Scalise, Aye, " " Peter Wells, Aye " , " Michael Tobin ,
Aye"
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . JM O ' Reilly, Inc . , Site Plan , 50 Clipper Way , 9/1 /20 Narrative , Variance Request
Nicholas and Rebecca Smith propose to reconstruct an existing stone revetment, deck and beach
stairs , on and within 50 feet of Coastal Wetlands on 313 Nelson Street, 91 /5 (7/7)
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 .
Summary of Applicant Testimony
" Robert Perry, Present" , " Nicholas Smith , Present"
Robert M Perry , PE , Cape Cod Engineering , Inc. , attended by remote participation as representative of the
applicant . Nicholas Smith , applicant , attended remotely as well .
Mr. Perry described the resource areas and project as contained in the Notice of Intent , narrative , variance
request and plan* . He stated that the revetment was originally constructed many years ago . Mr. Perry
referenced a drainage pipe in the vicinity of the existing revetment that was not shown on the plan* . In
addition , he stated that the beach stairs will be eliminated . He explained that at the request of concerned
abutters , he will revise the plan to show both the existing drainage pipe and elimination of the beach stairs .
Summary of Staff/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site plan* .
The Commission discussed the long history of this revetment, which was very likely constructed before
wetland laws were enacted .
Chairman Tobin believed that the applicant should nourish the coastal resource areas , and requested that
the Conservation Administrator retain and meet on the site with Greg Berman , Coastal Processes Specialist ,
Woods Hole Sea Grant/Cape Cod Cooperative Extension Services , for an opinion on the project .
Summary of Public Comments
The public had no comment .
i
Brewster Conservation Commission Minutes September 22 , 2020 4
I
i
i
Evans/Kaser continue the hearing to October 6 , 2020 , to allow the Conservation Administrator to consult
with Mr. Greg Berman , Coastal Processes Specialist, Woods Hole Sea Grant/Cape Cod Cooperative
Extension Services AU ** .
" Bruce Evans , Aye " , " Gary Kaser, Aye" , " Greg Scalise , Aye, " " Peter Wells , Aye" , " Michael Tobin ,
Aye "
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . Cape Cod Engineering Site Plan , 313 Nelson Street, 8/31 /20, Narrative, Variance Request
Citizens' Forum
The public submitted no comments by electronic mail at this time .
Report of the Natural Resources Director
1 . Results of the Massachusetts Division of Fish and Wildlife ( MDFW) Deer Browse and Deer
Pellet Study in Brewster, Spring 2020
" Ryan Burch , Present"
Natural Resources Assistant Director, Ryan Burch attended remotely on behalf of the Natural
Resources Director, Chris Miller, Mr. Burch explained that he has been unable to contact officials
of the Division of Fisheries and Wildlife . He and Mr. Miller would like them to be present at a public
hearing ; most likely in October, to answer questions on the results of the MDFW Deer Browse and
Deer Pellet Study in Brewster, Spring 2020 , on the subject of antlerless deer hunting by archery
in the southern section of the Punkhorn Parklands .
Natural Resources Director Chris Miller, arrived at the meeting at this time .
" Chris Miller, Present"
Mr. Miller repeated that the public is expected to attend and be allowed to comment
during this public hearing by remote participation .
Massachusetts Division of Fish and Wildlife Deer Browse and Deer Pellet Study in Brewster,
Spring 2020
Report of the Conservation Administrator
1 . The Conservation Administrator discussed a violation at 234 Robbins Hill Road (Order of
Conditions SE 9- 1789) reported to her by Chairman Tobin , involving floodlights illuminating a tree
in a Coastal Dune . She notified the property owners , who shut down the floodlights . Floodlights are
not allowed in resource areas under the BWP By- law; nor are they allowed under the special
conditions of this Order of Conditions ; as follows :
Al 7 . Spotlights and floodlights shall not be installed within the 100 foot buffer zone of a resource
area ; nor shall any spotlight or floodlight penetrate a resource area or 100 foot buffer zone . Any
existing spotlights or flood lights within 100 feet of the wetland resource areas shall be removed . Any
existing spotlights or flood lights which may illuminate the 100 foot buffer shall be directed downward
and shielded so the light does not illuminate wildlife habitat in jurisdictional areas.
The property owners are expected to file a request for a minor change to substitute the lights for
those which do not impact wildlife in the resource area or protective 100 foot buffer zone .
2 . Additionally , as discussed throughout the summer months , Ms . Aguilar expects the Department will
receive Notice of Intent filings to permit illegal docks in the months ahead .
Requests for Administrative Review
1 . Sague, 66 Sachemus Trail , 78/137 ( 15/125) patio expansion
As contained in her Administrative Report , the Conservation Administrator believed the above
referenced project meets parameters for an activity under the Commission ' s Administrative Review
process , and approved the project under Administrative Review. Evans/Kaser; Ratify . AU **
" Bruce Evans , Aye " , " Gary Kaser, Aye" , " Greg Scalise , Aye, " " Peter Wells , Aye" , " Michael
Tobin , Aye "
Review of Plan Change
1 . Barth/Knight, Order of Conditions SE 9 -1782 , request as to whether changes to vegetation
management shall constitute a minor change to plan = on 39 Carver Road , 50/41 (3/19 )
Brewster Conservation Commission Minutes September 22 , 2020 5
The Conservation Commission agreed the above plan change shall be considered minor, and
approved . This newly submitted plan shall be designated by the Conservation Administrator as the
approved plan of record . Evans/Kaser AU **.
" Bruce Evans , Aye " , "Gary Kaser, Aye " , "Greg Scalise, Aye, " " Peter Wells , Aye" , " Michael
Tobin , Aye "
Review and Approval of Minutes
1 . September 8, 2020
** Having reviewed the above referenced minutes , the Commission approved them as written . AU **.
" Bruce Evans , Aye " , " Gary Kaser, Aye" , "Greg Scalise , Aye, " " Peter Wells, Aye" , " Michael
Tobin , Aye"
Any Topics not reasonably anticipated by the Conservation Commission Chairman
No topics discussed .
Evans/Kaser I move to adjourn . AU **
Bruce Evans , Aye " , Gary Kaser, Aye" , Greg Scalise , Aye , Peter Wells , Aye " , Michael Tobin ,
Aye "
Adjourned at 7 : 50 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 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:
i
1. Brewster Wetland Protection By-law, Adopted, December 10, 1984, Regulations Promulgated May 27, j
1986
2. 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
3. Massachusetts Department of Agricultural Resources . . Jnvasive Plants in Massachusetts 111105
4. Administrative Report of the Conservation Administrator
5, Meeting video recording, Town of Brewster Website http://town. brewster. ma. us
i
i
a
i
i
i
i
I
I
Brewster Conservation Commission Minutes September 22 , 2020 6
f
I