HomeMy Public PortalAbout2021 08 24 Public Meeting Packet
August 5, 2021
Notice of Intent - Narrative
63 Bates Lane
Brewster, MA
1) Existing Conditions
The property located at 63 Bates Lane in Brewster is an approximately 48,523 sf lot abutting Myrick’s Pond. The property
is developed with a single family home with deck, patio, and walkways, garage, driveway and parking, and typical residential
landscaping, gardens and lawn.
Resource areas on the property include Bordering Vegetated Wetland and Inland Bank and their associated 50’ and 100’
buffer zones. An existing dirt footpath provides the homeowner access down the slope and across the Inland Bank and
BVW to the existing path network around Myrick’s Pond.
Vegetation throughout this well-canopied lot is property is predominantly native Oak/pitch pine plant community with a
densely vegetated native understory shrub and ground cover layer. The focus of this Notice of Intent Filing is the area
within the historically managed vista corridor and existing dirt footpath located to the north of the dwelling. Vegetation in
this area is comprised of black cherry (Prunus serotina), pitch pine (Pinus rigida), oak (Quercas sp.), high bush blueberry
(Vaccinium corymbosum), sweetpepper bush (Clethra alnifolia), Bayberry (Myrica pensylvanica), button bush (Cephalanthus
occidentalis), and swamp azalea (Rhododendron viscosum).
2) Proposed Conditions
The accompanying plan proposes to maintain existing views to Myrick’s Pond using best pruning and vegetation
management practices. The proposed vista management area is mainly within the 50’ buffer zone and measures
approximately 62 ft wide (~ 2900 sf). This area comprises approximately 10% of total area of well canopied and vegetated
buffer zones on the property.
Additionally, this plan proposes to install in-ground timber risers in the existing, steep dirt path to allow the property
owners safe access down the slope, while protecting the slope from erosion and stormwater runoff.
3) Construction Sequence/Methods/Equipment
Within the proposed view shed four pitch pine saplings (3-4’ tall) are proposed to be flush cut at the edge of the perennial
garden within the 50’ buffer zone. Pruning will include thinning of oak and cherry canopy (no topping) and some branch
uplifting, with no more than 1/3 of canopy removed in any pruning season. All tree pruning will be conducted by an ISA or
Mass Certified Arborist. Blueberry, bayberry and summersweet shrubs located between elevations 32 and 28 within the
proposed vista window will be flush cut and allowed to regenerate in order to be managed at a staggered heights ranging
between 3 and 4 feet. These species respond well to flush cutting and regenerate rapidly, with a growth rate of 2’ - 4’ per
year. These species can then be maintained at the desired heights without damage to the shrubs. Shrubs below elevation 28
will be lowered to a height of 4 feet above the grade as necessary only to maintain views using best management practices
over the period of the open pruning permit (i.e. depending on shrub height and species, shrubs that are currently taller than
4’ may not be pruned to 4’ tall in one pruning season, but gradually over the life of the permit using best management
practices). Mature native shrubs on lower portions of the bank that are not impeding views will not be pruned.
In-ground timber risers will be installed at grade within the existing footprint of the dirt path. Please see the attached
Variance Request/Alternatives Analysis for details on proposed in-ground timber steps.
4) Resource Area Impacts
While there will be some initial impacts to the 50’ buffer due to the installation if the in-ground timber risers, the existing
pathway will be safer for property owners to traverse and will be more ecologically sound at the end of the project. This
plan’s primary goal is to maintain the existing view corrido using best vegetation management practices, leaving root
systems intact and minimizing future disturbance within the view corridor. No expansion of the historically maintained
view corridor is proposed.
5) Resource Area Mitigation
Not Applicable
6) Sedimentation Controls
Silt fence will be installed at the bottom of the existing footpath during timber riser installation, and will remain in place
until the installation is completed
7) Storm Water Management
Not Applicable
8) DFW/NHESP/DMF
Not Applicable. According to the Natural Heritage and Endangered Species Program there is no Estimated or Priority
Habitats of Rare Species on this property.
9) Alternative Analysis
Please see attached Variance Request and Alternative’s Analysis.
August 3, 2021
Variance Request
Alternatives Analysis
63 Bates Lane
Brewster, MA 02631
Alternatives Analysis
The property at 63 Bates Lane is located on the south shore of Myrick’s Pond in Brewster. The proposed
portion of the project for which a variance under the Brewster Wetlands Regulation is being requested is
the installation of in-ground timber risers in an existing footpath within the 50’ buffer to an inland bank
and bordering vegetated wetland.
The slope leading from the developed, upland portions of the property to the existing path system
around Myrick’s Pond is fairly steep (32%). There is an existing dirt footpath measuring between three
and four feet wide that the property owners have been using to access this portion of the property. The
path is slippery, and has become unsafe for the property owners to traverse. In addition, the open dirt
path is susceptible to erosion due to lack of vegetative cover.
Alternatives
1. Footpath/access remains unchanged
2. Build an elevated staircase to provide safe access down the slope.
3. Install in-ground timber risers in the existing footpath as proposed.
Alternative 1:
Footpath/access down the slope remains unchanged.
This alternative would leave the dirt footpath in its current state. The dirt footpath can channel water,
potentially causing rills or erosion as stormwater in heavy rainfall events is not slowed by either
vegetation or in-ground risers acting as water bars and directing water to vegetated areas on side slopes.
The path remains a hazard to property owners as it is steep and quite slippery to traverse. This is not a
preferred alternative.
Alternative 2:
Build an elevated staircase to provide safe access over the steep slope.
An alternative for the project, which is not recommended, is for the applicant to build an elevated stair
case to provide safe access down the slope. An elevated stairway would require more disturbance to
install, likely requiring vegetation to be removed from either side of the staircase to pour sonotubes and
establish the staircase footprint. Light penetration to ground under the staircase would be poor in this
densely vegetated area. While foot traffic would be elevated, alleviating compaction, vegetation would be
unable to establish under the staircase due to shading, leaving the dirt path under the staircase
susceptible to erosion. In addition, the cost of building an elevated structure is prohibitive to the
homeowner. An elevated staircase is not required to provide safe access in this situation. It would not
better protect the slope from erosion, and would not benefit the aesthetics of the area around Myrick’s
Pond. Therefore, building an elevated staircase to provide safe access over the steep slope is not a
preferred alternative.
Alternative 3:
Complete the project as proposed.
The project as proposed is the preferred alternative. The installation of in-ground timber risers secured
with rebar in the existing footpath will cause minimal disturbance to the existing slope and will not
require the removal of established vegetation. The areas between the risers (treads) can be seeded with a
shade tolerant fescue and clover grass mix. Alternatively, porous, ¾ inch native gravel can be placed in
the tread areas between the risers allowing water to infiltrate. The risers themselves will eliminate
compaction to soils on the slope and will act as water-bars, slowing water down and directing any water
not absorbed by the vegetation or gravel between the risers into the surrounding vegetated areas to be
infiltrated and filtered by root systems before reaching the resource areas. The path can be maintained at
no wider than four feet, and will provide safe access for the property owners to traverse this steep slope.
In-ground timber risers will be invisible from Myrick’s Pond, and will remain hidden from the existing
well-traveled path system around Myrick’s Pond.
The proposed work will have no adverse effect on the following interests:
• Public water supply
• Private water supply
• Ground water and ground water
quality
• Water quality in the numerous ponds
of the town
• Flood control
• Erosion and sedimentation control
• Storm damage prevention
• Prevention of water pollution
• Fisheries
• Shellfish
• Wildlife and wildlife habitat
• Aesthetic
• Historic values
The proposed in-ground timber risers will directly support the following interests:
• Ground water and ground water quality
• Erosion and sedimentation control
• Storm damage prevention
• Prevention of water pollution
• Wildlife and wildlife habitat
Conclusion:
Based on the observations made in this analysis, BlueFlax Design LLC has concluded that the applicant, Penny Carver, has
shown clearly that the project, as proposed, is the most practicable and environmentally preferable alternative. The
proposed timber risers in the existing footpath will not only have no lasting adverse impact on the inland resource areas, but
also will provided positive benefits to the integrity of this sensitive ecosystem. The proposed work and its consequential
effects will have no adverse effect upon any of the interests specified in the Town of Brewster Wetland Protection
Regulations By-law and meets the variance provisions for Part III: Inland Wetlands.
VISTA MANAGEMENT
CARVER RESIDENCE
BLUEFLAX DESIGN LLC | HARWICH PORT, MA
774-408-7718 | www.blueflaxdesign.com
N
DATE REVISION INITIALS
63 BATES LANE
BREWSTER, MA
00
SHEET
07/26/2021
PLAN
PLAN NOTES
VIEW CORRIDOR
SHRUB PRUNING
PROJECT AREA
Google Earth aerial image of 63 Bates Lane, Brewster, MA.
PROPOSED VISTA MANAGEMENT
AREA
• Site plan provided by Ryder and Wilcox of Cape Cod.
• Resource areas on site include a bordering vegetated wetland, an inland bank, and it’s
associated 50’ and 100’ buffer zones. Native plant species existing in the buffer zones
and resource areas include black cherry (Prunus serotina), pitch pine (Pinus rigida), oak
(Quercas sp.), high bush blueberry (Vaccinium corymbosum), sweetpepper bush (Clethra
alnifolia), Bayberry (Myrica pensylvanica), button bush (Cephalanthus occidentalis), and
swamp azalea (Rhododendron viscosum). Total vegetated area (canopy, shrub layer, and
groundcover layer) on the site within conservation jurisdiction is approximately 28,000
sf.
• This plan proposes vista management in the form of selective pruning within an
approximately 2,935square foot area (approximately 10.3% of the total canopied and
vegetated buffer zone) to maintain a vista window to Myrick’s Pond. Four pitch pine
saplings (3-4’ tall) are proposed to be flush cut at the edge of the perennial garden
within the 50’ buffer zone. Pruning will include thinning of oak and cherry canopy
(no topping) and some branch uplifting, with no more than 1/3 of canopy removed
in any pruning season. All tree pruning will be conducted by an ISA or Mass Certified
Arborist. Blueberry, bayberry and summersweet shrubs located between elevations 32
and 28 within the proposed vista window will be flush cut and allowed to regenerate in
order to be managed at a staggered heights ranging between 3 and 4 feet. These species
respond well to flush cutting and regenerate rapidly, with a growth rate of 2’ - 4’ per
year. These species can then be maintained at the desired heights withouth damage to
the shrubs.Shrubs below elevation 28 will be lowered to a height of 4 feet above the
grade as necessary to maintain views using best managment practices over the period
of the open pruning permit (i.e. depending on shrub height and species, shrubs that are
currently taller than 4’ may not be pruned to 4’ tall in one pruning season, but gradually
over the life of the permit using best management practices). Mature native shrubs on
lower portions of the bank that are not impeding views will not be pruned.
• Management of existing green briar (Smilax rotundifolia), Virginia creeper
(Parthenocissus quinquefolia), and poison ivy (Toxicodendron radicans) is proposed to
take place in the work area in order to minimize competition with native vegetation.
Aggresive plants will be selectively removed by hand. One white spruce is proposed to
be transplanted from the edge of the lawn within the proposed view corridor to an area
outside of the viewshed. No herbicides will be used on the site.
• In-ground timber risers are proposed to be installed in an already established foot path
to eliminate erosion on the slope and provide dedicated stable access to the established
footpath network around Myrick’s Pond.
• All vegetation debris will be removed from the site and brought to an off-site disposal
area.
wpaform9a.doc • rev. 7/14/04 Page 1 of 4
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
WPA Form 9 – Enforcement Order
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
DEP File Number:
SE 9-1550
A. Violation Information
Important:
When filling out
forms on the
computer, use
only the tab
key to move
your cursor -
do not use the
return key.
This Enforcement Order is issued by:
Town of Brewster
Conservation Commission (Issuing Authority)
7/27/2021
Date
To:
Keith Ash, Trustee of Sand Dune Realty Trust
Name of Violator
7 Central Street, So Easton, MA 02375
Address
1. Location of Violation:
Property Owner (if different)
10 Nancy May Path
Street Address
Brewster
City/Town
02631
Zip Code
91
Assessors Map/Plat Number
14-798 (7/11-1)
Parcel/Lot Number
2. Extent and Type of Activity (if more space is required, please attach a separate sheet):
Placement of gravel fill, stone steps, and plastic grass within coastal resource areas in violation of
Order of Conditions SE 9-1550, Massachusetts Wetlands Protection Act M.G.L. c. 131, §40, and the
Town of Brewster Wetlands Protection By-law, Town Code Chapter 172.
B. Findings
The Issuing Authority has determined that the activity described above is in a resource area and/or buffer
zone and is in violation of the Wetlands Protection Act (M.G.L. c. 131, § 40) and its Regulations (310
CMR 10.00), because:
the activity has been/is being conducted in an area subject to protection under c. 131, § 40 or the
buffer zone without approval from the issuing authority (i.e., a valid Order of Conditions or Negative
Determination).
wpaform9a.doc • rev. 7/14/04 Page 2 of 4
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
WPA Form 9 – Enforcement Order
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
DEP File Number:
SE 9-1550
B. Findings (cont.)
the activity has been/is being conducted in an area subject to protection under c. 131, § 40 or the
buffer zone in violation of an issuing authority approval (i.e., valid Order of Conditions or Negative
Determination of Applicability) issued to:
Keith Charles Ash, Trustee of Sand Dune Realty Trust
Name
5/2/2012
Dated
SE 9-1550
File Number
B6, B22, B25
Condition number(s)
The Order of Conditions expired on (date):
Date
The activity violates provisions of the Certificate of Compliance.
The activity is outside the areas subject to protection under MGL c.131 s.40 and the buffer zone,
but has altered an area subject to MGL c.131 s.40.
Other (specify):
C. Order
The issuing authority hereby orders the following (check all that apply):
The property owner, his agents, permittees, and all others shall immediately cease and desist
from any activity affecting the Buffer Zone and/or resource areas.
Resource area alterations resulting from said activity shall be corrected and the resource areas
returned to their original condition.
A restoration plan shall be filed with the issuing authority on or before
Date
for the following:
The restoration shall be completed in accordance with the conditions and timetable established by the
issuing authority.
wpaform9a.doc • rev. 7/14/04 Page 3 of 4
Massachusetts Department of Environmental Protection
Bureau of Resource Protection - Wetlands
WPA Form 9 – Enforcement Order
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40
DEP File Number:
SE 9-1550
C. Order (cont.)
Complete the attached Notice of Intent (NOI). The NOI shall be filed with the Issuing Authority on
or before:
Date
for the following:
No further work shall be performed until a public hearing has been held and an Order of Conditions
has been issued to regulate said work.
The property owner shall take the following action (e.g., erosion/sedimentation controls) to
prevent further violations of the Act:
The property owner and/or their representative shall appear before the Brewster Conservation
Commission for a Show Cause Hearing on August 24, 2021 at the regularly-scheduled remote access
meeting starting at 6:00 pm.
Failure to comply with this Order may constitute grounds for additional legal action. Massachusetts
General Laws Chapter 131, Section 40 provides: “Whoever violates any provision of this section (a)
shall be punished by a fine of not more than twenty-five thousand dollars or by imprisonment for not
more than two years, or both, such fine and imprisonment; or (b) shall be subject to a civil penalty not
to exceed twenty-five thousand dollars for each violation”. Each day or portion thereof of continuing
violation shall constitute a separate offense.
D. Appeals/Signatures
An Enforcement Order issued by a Conservation Commission cannot be appealed to the Department of
Environmental Protection, but may be filed in Superior Court.
Questions regarding this Enforcement Order should be directed to:
Noelle Aguiar, Conservation Administrator
Name
508 896 4546
Phone Number
Monday - Friday
Hours/Days Available
Issued by:
Town of Brewster
Conservation Commission
Conservation Commission signatures required on following page.
TOWN OF BREWSTER
1657 MAIN STREET
BREWSTER, MA 02631
PHONE: (508) 896-4546
FAX: (508) 896-8089
CONSERVATION@BREWSTER-MA.GOV
WWW.BREWSTER-MA.GOV
OFFICE OF
CONSERVATION COMMISSION
ATTACHMENT TO ENFORCEMENT ORDER
July 27, 2021
Sand Dune Realty Trust
7 Central Street
So Easton, MA 02375
RE: Placement of gravel fill, stone steps, and plastic grass within coastal resource
areas in violation of Order of Conditions SE 9-1550, Massachusetts Wetlands
Protection Act M.G.L. c. 131, §40, and the Town of Brewster Wetlands Protection By-
law, Town Code Chapter 172. The property involved in the violation is 10 Nancy May
Path, Brewster Assessors Map 91, Lot 14-798 (formerly Map 7, Lot 11-1).
Enclosed is an Enforcement Order for activities in violation of the Massachusetts
Wetlands Protection Act M.G.L. c. 131, §40 and the Town of Brewster Wetlands
Protection By-law, Town Code Chapter 172. Non-compliance with the
requirements stated herein is punishable by fines of not more than $25,000 or by
imprisonment for not more than two years or both, as provided under M.G.L. c.
131, §40; and fines of not more than $300 per offense as provided under Town of
Brewster Wetlands Protection By-law, Town Code Chapter 172. Each day or
portion thereof during which a violation continues shall constitute a separate
offense, and each provision of the By-law, regulations, or permit violated shall
constitute a separate offense.
To Whom it May Concern:
The enclosed Enforcement Order is being issued to you from the Brewster
Conservation Commission in response to violations of the above-referenced laws and
regulations that have occurred pursuant to work at 10 Nancy May Path. This
Attachment to the Enforcement Order is divided into two sections: Facts and Law, and
Required Mitigation and Other Measures. It would be in your best interest to carefully
read the Enforcement Order and this Attachment, and to comply fully with all the
requirements stated herein. Failure to comply with all requirements stated herein will
result in more serious enforcement action. The Commission stands ready to work
cooperatively with you in order to avoid further enforcement action.
TOWN OF BREWSTER
1657 MAIN STREET
BREWSTER, MA 02631
PHONE: (508) 896-4546
FAX: (508) 896-8089
CONSERVATION@BREWSTER-MA.GOV
WWW.BREWSTER-MA.GOV
OFFICE OF
CONSERVATION COMMISSION
Facts and Law
1. On July 2, 2021, the Conservation Administrator viewed the property from an
abutting property during a scheduled site visit. It was observed that gravel fill,
stone steps, and plastic grass were installed within areas designated and
required as mitigation planting areas under the Order of Conditions SE 9-
1550 and associated plans of record.
Any violation of an Order of Conditions issued by the Conservation Commission or any
alteration within 100 feet of a resource area without a valid permit from the
Conservation Commission is a violation of the Massachusetts Wetlands Protection Act,
M.G.L. c. 131, §40 and Regulations 310 CMR 10.00 et seq., and Brewster’s Wetlands
Protection By-law, Town Code c. 172 and Wetlands Regulations.
Required Mitigation and Other Measures
1. The property owner, his agents, permittees, and all others shall
immediately cease and desist from any activity affecting the Buffer Zone
and/or resource areas.
2. The unpermitted gravel fill, stone steps, plastic grass, and chairs shall be
removed by hand from the mitigation planting areas and the locations
planted with the required count and species as noted in the plan of record
and required under permit SE 9-1550 by September 1, 2021. Any other
means of removal shall be presented to and approved by the
Conservation Commission prior to implementation.
3. The property owner and/or their representative shall appear before the
Brewster Conservation Commission on August 24, 2021 via Zoom
Meeting starting at 6:00 pm. Please call (508) 896 4546, as soon as
possible to confirm
4. The Conservation Commission reserves the right to amend this
Enforcement Order in the future, or to issue separate Enforcement Orders.
The Commission also reserves the right to issue fines for the unauthorized
work that has occurred.
Site Photos. Unpermitted Gravel Fill, Stone Steps and Plastic Grass in Mitigation Planting Areas
10 Nancy May Path. 7.2.2021
Site Photos. 10 Nancy May Path. 8.26.2020
Current Location
Relocation