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Home My Public Portal AboutConservation Commission -- 2023-06-27 MinutesAPPROVED 01/23/2024 Town of Brewster Conservation Commission Vote: 5-0-0 ,,. ' 0� Ok g4VER 6y�."9 : 1657 Main St., Brewster, MA 02631 conservation@brewster-ma.gov a _ (508) 896-4546- r MEETING MINUTES — - - - - - - - ��' M�ORPOAATE'� ,` • June 27 2023 6:00 PM -- i ♦E to, o� .�., `iii. 'l€'�`_ �": �.. .., • i is •!, ii;�.• Conservation Commissioners Present: Chair Michael Tobin (MT), Bruce Evans (BE), Gary Kaser (GK), Commission Kimberly Crocker Pearson (KP), Ron SIowek (RS), Steve McKenna (SM) Michael Tobin Commissioners Absent: Casey Chatelain (CC) Chair Staff Present: Bill Grafton (BG), Chris Miller (CM) Casey Chatelain 1. Call to Order Vice Chair 2, Meeting Declaration of Participation Statement 3. Public Comment/ Citizens' Forum Commissioners 4, Recording Statement: As required by the Open Meeting Law, we are informing you that the Town will be Bruce Evans video and audio taping as well as broadcasting this public meeting. In addition, if anyone else intends to either Gary Kaser video or audio tape this meeting they are required to inform the chair. Kimberley Crocker 5. Public Announcements and Comment: Members of the public may address the Conservation Pearson Commission on matters not on the meeting's agenda for a maximum of 3-5 minutes at the Chair's discretion. The Ron SIowek Conservation Commission will not reply to statements made or answer questions raised during public comment, Steve McKenna but may add items presented to a future agenda. 6. Discussion Staff Chris Miller, 6a, Discussion to nominate Kim Pearson as the Conservation Liaison to the Water Quality Natural Resources Review Committee — Mike Tobin Director Commissioner Kim Pearson has indicated she is willing to take over the role from Bruce Evans. Bill Grafton, Conservation Administrator Bruce Evans (BE) moves to approve Commissioner Pearson as the Conservation Commission Liason to the Water Quality Review Committee. Gary Kaser (GK) second. Approved 6-0-0. 6b. Mass Dept of Agricultural Resources (MDAR) reporting requirements for pesticide applicators Kim Pearson (KP) notes that pesticide applicators in Massachusetts are only required to report the type of site treated but not the physical address of the site. In contrast, New York State requires the reporting of exactly where and when pesticides are applied. KP suggests this creates an issue for abutters to utility and other rights of way, who may be unable to determine their level of exposure, and makes it difficult to determine correlations between pesticide exposure and rates of disease. The Brewster Natural Resources Advisory Commission is considering filing a citizens' petition to ask EPA to require Massachusetts to record the physical addresses of sites where pesticides are deployed, and would be asking Commission support if and when such petition is filed. Page 1 of 6 Conservation Commission Meeting Minutes — June 27, 2023 7. Request for Determination of Applicability _ 7a. 42 Konohassett Cartway, 72-25 (41-11) RDA# 23-05. Joseph Carty and Diana Pohly-Carty request a determination as to whether the area — buffer zone to bordering vegetated wetlands, inland bank and land under waterbody — and work depicted on the plan — removal of hazard trees, selective vegetative management of native shrubs, and optional native planting related to permit SE9-1483 — are subject to the Wetlands Protection Act Chapter 131 Section 40 and jurisdiction of the BWP Bylaw Chapter 172. Applicant Diana Pohly-Carty (DP) notes that they have requested authorization to prune in the buffer zone every few years; these past requests have been approved by Administrative Letter, but were asked by the Commission to file a Request For Determination of Applicability (RDA) due to the more extensive activity they are requesting this time. The vegetation along the pond has become overgrown and the shade from the trees is affecting the health of the other plants in the area; they wish to conduct ongoing vegetative management in this area and would like guidance as to the extent of trimming allowed, shrub height, and what native plantings would be acceptable. Bruce Evans (BE) asks if applicants' arborist has confirmed that the proposed trimming will not affect the health of the trees? DP confines, noting that Jeremy Ross (JR) at SavATree has worked on the property for years. BE also asks about the percentage proposed reduction in tree canopy? Bill Grafton (BG) notes this original proposed percentage was reduced at his request. BE is not sure the Commission has a permitting structure to allow for ongoing management; BG indicates he is working on establishing one through Ongoing Conditions. BG reviews photos of the property, noting that the shrubs planted under previous permits tend to get overgrown and some guidance as to appropriate height would be helpful. Kim Pearson (KP) suggests that some of the cutting proposed could count as "leader training" which would ultimately stabilize the trees; BG notes JR used the same characterization and is comfortable with his revised proposal. KP also suggests applicants consider sweet fern or lemon balm, which are less attractive to deer and rabbits. DP notes that keeping the area vegetated has been a challenge. Steve McKenna (SM) moves to issue a Positive Determination No. 5 for the Bylaw and a Negative No. 3 for work within the buffer zone, including standard special conditions and requiring the optional plantings to be native plant species as detailed in the Cape Cod Cooperative Extension Plant List and The Natural Heritage and Endangered Species Program Vascular Plants of Massachusetts. Gary Kaser second. Approved 6-0-0. 7b. 202 Brook Trail Road, 51-109 (40-60) RDA# 23-06. Janis Krauklis requests a determination as to whether the area — buffer zone to bordering vegetated wetland — and work depicted on the plan — remove two storm damaged red maple trees and replace with red maple saplings — are subject to the Wetlands Protection Act Section 40 and jurisdiction of the BWP Bylaw Chapter 172. Bill Grafton (BG) presents for the applicants and notes that the two damaged trees are 60 to 80 feet from the resource area; a third tree has two leaders dangling over the pathway to the dock. Applicants would like to remove the two damaged trees and remove the two leaders on the third tree, and will plant two replacement red maples; they recently received a Certificate of Compliance for a dock project. Kim Pearson (KP) moves to approve a Positive Determination No. 5 for the Bylaw and a Negative No. 3 for work within the buffer zone including standard special conditions and requiring the optional plantings to be native plant species as detailed in the Cape Cod Cooperative Extension Plant List and The Natural Heritage and Endangered Species Program Vascular Plants of Massachusetts. Gary Kaser (GK) second. Approved 6-0-0. Page 2 of 6 Conservation Commission Meeting Minutes — June 27, 2023 8. Notice of Intent, Request for Amended Order of Conditions, and Abbreviated Notice of Resource Area Delineation 8a. 104 Canoe Pond Drive, SE9-1952, 24-60 (36-230). New Public Hearing. Hongying Xie Revocable Trust -2012 proposes to install a seasonal aluminum dock, as well as After -the -Fact approval of an existing kayak rack within inland bank, bordering vegetated wetland, land under waterbodies and waterways, bordering land subject to flooding and buffer zone to bordering vegetated wetlands. The matter is continued to allow Bill Grafton (BG) to arrange a site visit with representative Mark Burgess (MB), Shorefront Consulting, discussed at the previous meeting. Bruce Evans (BE) moves to continue to the July 11, 2023 Commission Public Meeting to allow the applicant's consultant to address the Commission's request for additional information. Gary Kaser (GK) second. Approved 6-0-0. 8b. 660 Villages Drive, SE9-1951, 75-13 (33-95-2). New Public Hearing. Ocean Edge Resort LLC proposes vegetation management at the 8th, 9th, and 14th holes within buffer zones to inland banks, bordering vegetated wetlands and land under waterbodies and waterways. Gary Kaser (GK) moves to continue the public hearing to the July 11, 2023 Commission public meeting to allow the Natural Heritage and Endangered Species Program to provide its comments. Kim Pearson (KP) second. Approved 6-0-0. 8c, 216 Mitchell Lane, 115-49 (11-1-5). Continued Public Hearing. Stephen and Sarah Barkhuff propose the construction of a stairway and a foot path as well as vegetation management and vista pruning within land subject to coastal storm flowage, riverfront, isolated vegetated wetland, and buffer zone to bordering vegetated wetland, isolated vegetated wetland, land subject to coastal storm flowage, inland bank, and salt marsh. Ian Peach (IP), Wilkinson Ecological Design, present for applicant. IP notes the Commission raised concerns regarding accurate depiction of an Area of Critical Environmental Concern (ACEC) on the site plan and invasives management in an area of native woody shrubs near an Intermittent Vegetated Wetland (IVW). With regard to the ACEC, IP states he consulted with the project surveyors at Coastal Engineering, who indicated their depiction is based on the 10 ft contour NGVD datum and have added a note to this effect to the plan set. A note specifically indicating the path to be 4 ft width has also been added. Regarding the invasives management within the 1V W, IP indicates they have revised the proposal to not remove any native shrubs, and believe they can manage the invasives in the area by hand, without loss or damage to the native plants. He has worked with Bill Grafton (BG) to revise the plans and is willing to submit further revisions as needed. BG notes that Massachusetts Historical Commission (MHC) has not provided any comments and, as he is is unsure whether they will, suggests a special condition requiring applicant to comply with any MHC requirements, as well as a special condition specifying no reduction in the top canopy of healthy native woody shrubs. BG will work with IP to finalize the plans and conditions. There was no public comment. Kim Pearson (KP) moves to close the public hearing and issue Order of Condition with Standard Special Conditions including notations regarding the proximity and applicability of the Area of Critical Environmental Concern, the Coastal Barrier Resource System Unit C-11, the area marked S117R on the Massachusetts Department of Environmental Management (MassDEM) Wetland Restriction Program Sheet No. V-27 approved on 10/07/1980 and 18 protective covenants associated with the property as per the Deed Chain recorded at Book 6422 and Page 058 with the Barnstable County Registry of Deeds, and special conditions regarding compliance with Massachusetts Historical Commission requirements and no topping of the woody shrubs. Gary Kaser (GK) second. Approved 6-0-0. Page 3 of 6 Conservation Commission Meeting Minutes — June 27, 2023 9. Request for Certificate of Compliance 9a. 151 Owl Pond Road, SE9-1832 137-11 (29-18-11) - HoYin Yuen. Bill Grafton (BG) notes that applicant planted the wrong species of blueberry, and some of the other plantings did not survive; further, the Order of Conditions requires three years of annual monitoring reports and only one report has been provided thus far that lacks sufficient detail. Applicant replaced two retention ditches noted in the site plan with a French drain which adequately serves a similar function. BG suggest this is a de minimis change. Kim Pearson (KP) moves to deny the Request Certificate of Compliance for SE9-1832, 151 Owl Pond, based on incomplete information submitted and the need for High Bush Blueberry plants to be planted. Gary Kaser (GK) second. Approved 6-0-0. 10. Request for Extension Order of Conditions 10a. 73 Brier Lane, SE9-1876 48-7 (23-10-2) — John & Kathleen Galiney Bill Grafton (BG) states the Special Conditions of the Order of Conditions require three years of monitoring reports are required. The applicant would like to submit his own reports, and BG has provided draft guidance as to what they should contain; the first report is due October 31, 2023. Bruce Evans (BE) moves to approve a 3 -year extension of the Order of Conditions SE9-1876, at 73 Brier Lane, to June 27, 2026. Gary Kaser (GK) second. Approved 6-0-0. 10b. 69 Brier Lane, SE9-1875 48-90- (23-10-2) — J B and K J Galiney LTrust Bill Grafton (BG) states the Special Conditions of the Order of Conditions require three years of monitoring reports are required. The applicant would like to submit his own reports, and BG has provided draft guidance as to what they should contain; the first report is due October 31, 2023. Kim Pearson (KP) moves to approve a 3 -year extension of the Order of Conditions SE9-1875, at 69 Brier Lane, to June 27, 2026. Gary Kaser (GK) second. Approved 6-0-0. 11. Show Cause Ila. Continued — Brown, 2628 Main Street, 89-14 (15-113-2) Cutting and clearing of vegetation within 25 feet of inland wetlands as well as the placement of fill on and within 100 feet of inland wetlands. Attorney Chris Senie (CS) and David Schlesinger (DS) present for property owner Stephan Brown (SB). CS states they have a proposal from BSC for the next phase of work that they just received yesterday, and would like a little more time to review it. Michael Tobin (MT) would like all plans in place for the fall planting season, which seems reasonable; otherwise, the Commission should start levying fines for the violations. Bill Grafton (BG) concurs with MT and suggests things need to start happening within the next 60 days. DS notes that Great Cape Co-op, with which he is involved, is a potential buyer and provided consultant BSC Group the first round of funding. They would like the next phase of work to produce an actionable and approved restoration plan without multiple rounds of revisions. MT reiterates that time is of the essence. John Martens (JM), 177 Old Long Pond Road, states that recent replacement of a collapsed culvert, overseen by Cape Cod Mosquito Control (CCMC), had improved conditions on the property and the disturbed areas have grown back in. BG Page 4 of 6 Conservation Commission Meeting Minutes — June 27, 2023 heard otherwise but will follow up with CCMC. JM also opines that a lot of the fill brought onto the property predated passage of the Wetlands Protection Act. Ken Benson (KB), 3 S Thad Ellis Road, supports what the Great Cape Co -Op is proposing for the property and states the work by CCMC has reduced flooding in his basement and mosquitoes in the area. DS adds he has obtained a statement from Andrew Neal (AN), the operator of the machinery for the culvert work, as to how the work was performed and its scope; this included the removal of old construction debris from the wetlands. DS states SB's impression was that the work was authorized because it was overseen by Vernon Crownshaw (VC) at CCMC. BG notes that CCMC is not the Conservation Commission and MT adds that multiple enforcement orders (EOs) are in effect on the property, which could have been confirmed by a phone call to the Department. Gary Kaser (GK) adds that he and previous Conservation Administrator Noelle Aguilar (NA) told SB what was required in order for the culvert work to go forward. BG notes he is trying to incorporate as much work as possible into the current Enforcement Orders, which will save SB and the Great Cape Co -Op on NOI filing fees, but this requires proactive communication on SB's part. Stephan Brown (SB) states VC had previously told him that "the state has precedence over the Town" when it comes to maintaining the Considine Ditch, and that he could replace the collapsed culvert pipe in the ditch. SB also states NA told him over the phone "I'm glad when I see the green State truck there, because then I don't have to deal with it" before later telling him a NOI was required for the work. SB recalls that he told it was okay to proceed with the culvert repair so long as the State was there to supervise. The actual work occurred while he was out of the country, and SB states it improved the flow of water in the ditch which makes the neighbors happy. SB adds he will have to scramble to fund the cost of the next phase of work but will do so. He wants to sell the property to the co-op if they can arrange the financing. This financing, and Great Cape Co -Op membership fees, is where the funding for the work would come from and "it may not come in 60 days." SB also would like to clear pathways to "a bumper crop" of blackberries in the back of the property. MT indicates they can work on something once there is a signed proposal from BSC. CS indicates they understand the signed proposal is the key to moving forward and it will get done. Bruce Evans (BE) moves to continue the enforcement discussion to the July 11, 2023 Commission public meeting to allow time for receipt of the signed revised proposal addressing the revisions due by 12 noon, Monday, July 10, 2023. Kim Pearson (KP) second. Approved 6-0-0. 12. Request for Minor Change to Plan 12a. 23 Dune Road, 79-30 (6-13) 23 Dune Road LLC requests to reintroduce a patio on the northeast side of the dwelling located within 100 feet of the resource area. SE9-1922. John O'Reilly (JO), J.M. O'Reilly & Associates, present for applicant, who would like to install a 264 sq ft dry laid patio in existing lawn that was proposed on the original plan set but removed, due to cost considerations, before issuance of the Order of Conditions. JO notes there is about 6,300 sq ft of mitigation associated with the project. Bill Grafton (BG) visited the property and noted that a MassDEP sign had not been posted as required under the General Conditions of the Order of Conditions. The mitigation plantings are doing well and the additional disturbance is well under the threshold for Chapter 272 stormwater review. JO will advise the builder to post the MassDEP signage. Kim Pearson (KP) moves to approve the Minor Change to Plan associated with 23 Dune Road, Jathas/SE9-1922 and require evidence of MassDEP signage posting and submission of a work notification form to the Conservation Administrator before the approval is issued. Gary. Kaser (GK) second. Approved 6-0-0. 13. Request for Administrative Review Page 5 of 6 Conservation Commission Meeting Minutes — June 27, 2023 13a. 67 Tupelo Drive, 74-13 (34-76-67). New. Philip & Barbara Souza request to remove 1 tree from the buffer zone to Sheep Pond. Bill Grafton (BG) shows photos, nothing that the tree in question is dead and he has no objections to its removal. Kim Pearson moves to approve Administrative Review No. 23- for removing one dead tree in the buffer zone at 67 Tupelo Drive. Gary Kaser second. Approved 6-0-0. 11. Report of Natural Resources Director Chris Miller (CM) notes that the seasonal staff is in place to assist with shellfish stocking and other tasks. The Pond Parcel Planning Committee is planning a tour of a Town -owned parcel with frontage on Long Pond, and is seeking permission for DPW to maintain the existing trails and pathways in preparation for the event. Additional filings will be forthcoming for the parcel, and Bill Grafton (BG) will reach out to DPW to coordinate. Kim Pearson (KP) moves to authorize the maintenance of existing trails and pathways on the Town -owned parcel at Long Pond, Book 34698, Page 91, as proposed. Gary Kaser (GK) second. Approved 6-0-0. 12. Report of the Conservation Administrator Bill Grafton (BG) has drafted a guidance document setting forth specific requirements for annual monitoring reports often required in Orders of Conditions (OOC), as he has received multiple Certificate of Compliance and Extension requests for projects in which the reports lack sufficient detail or have not been submitted. The guidance document requires information such as OOC issuance date, recording date, and expiration date; any amendments or minor changes to plan; and conditions at the time of NOI submittal and during the approved work; and "before and after" color photos of the applicable mitigation areas and proposed future activities. BG requests that the Commissioners review and provide feedback between now and the next meeting. Michael Tobin agrees that some guidance in this area makes sense. 13. Matters not reasonably anticipated by the Chair Kim Pearson (KP) notes that Brewster Conservation Day is coming up on July 8. 14. Questions from the Media None 15. Next meeting _ July 11, 2023, 6 PM 16. Adjourn Bruce Evans (BE) moves to adjourn. Kim Pearson (KP) second. Approved 6-0-0. Meeting adjourned at 7:12 PM. Respectfully Submitted, `lz.v Cassandra West, Senior Department Assistant Page 6 of 6 Conservation Commission Meeting Minutes — June 27, 2023