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HomeMy Public PortalAboutConservation Commission -- 2023-07-11 MinutesE W's i ii /ice Conservation Commission Michael Tobin Chair Casey Chatelain Vice Chair Commissioners Bruce Evans Gary Kaser Kimberley Crocker Pearson Ron Slowek Steve McKenna Staff Chris Miller, Natural Resources Director Bill Grafton, Conservation Administrator Town of Brewster Conservation Commission 1657 Main St., Brewster, MA 02631 conservation@brewster-ma.gov (508)896-4546 MEETING MINUTES July 11, 2023 6:00 PM APPROVED 03/26/2024 Vote: 7-0-0 Commissioners Present: Vice Chair Casey Chatelain (CC), Bruce Evans (BE), Gary Kaser (GK), Kimberly Crocker Pearson (KP), Ron Slowek (RS), Steve McKenna (SM) Commissioners Absent: Michael Tobin (MT) Staff Present: Bill Grafton (BG), Chris Miller (CM) 1. Call to Order 2. Meeting Declaration of Participation Statement 3. Public Commend Citizens' Forum 4. Recording Statement As required by the Open Meeting Law, we are informing you that the Town will be video and audio taping as well as broadcasting this public meeting. In addition, if anyone else intends to either video or audio tape this meeting they are required to inform the chair. 5. Public Announcements and Comment Members of the public may address the Conservation Commission on matters not on the meeting's agenda for a maximum of 3-5 minutes at the Chair's discretion. The Conservation Commission will not reply to statements made or answer questions raised during public comment, but may add items presented to a future agenda. 6. Discussion 6a. 366 Run Hill Road 45-1 (36 55-6) — Susan Silver requests Commission guidance on conservation permitting for replacement of existing stairs and hand -rail on path within the 50 - foot setback to wetlands Property owner Susan Silver (SS) wishes to replace concrete steps leading to the pond shore, which were installed prior to passage of the Wetlands Protection Act, with a raised aluminum staircase. She would also like to install a handrail along the upper portion of the walkway, where the steps do not need replacing. The proposed replacement staircase does not require digging to install. She initially discussed the work with prior Conservation Administrator Noelle Aguilar, who visited the site and suggested it could be permitted by a Request for Determination of Applicability (RDA). Bill Grafton (BG) notes that part of the proposed work area lies in the 0 to 50 ft buffer unlike a similar project nearby that was permitted by an RDA. The footings supporting the proposed new staircase are small and would not cause much disturbance. BG agrees the work could be permitted by RDA, but suggests that the Commission make the final determination given how close it comes to the pond. Gary Kaser is familiar with the footing design and has no issue permitting the project by RDA; the Commissioners concur. Kim Pearson (KP) moves to require the filing of an RDA for the proposed work at 366 Run Hill Road. Gary Kaser (GK) second. Approved 6-0-0. Page 1 of 7 Conservation Commission Meeting Minutes — July 11, 2023 6b. 0 Nickerson State Park 114-63 (43-2 & 31-1000) Mass Dept of Fish and Game requests Commission guidance on conservation permitting for parking lot improvements adjacent to Cliff Pond — Mike Count. Mike Count (MC) present for the Mass Dept of Fish and Game, who handles permitting for the Department of Conservation and Recreation, responsible for managing the Cliff Pond parking Iot and boat ramp. The lot is pervious with a paved apron leading to the ramp, which is comprised of concrete panels. They would like to regrade the parking area, filling in ruts and potholes, repair the apron, and add gravel to both edges of the lot. They also propose to remove a tree that is outside the 100 -foot buffer, regrade the area, and add updated signage to the area. Bill Grafton (BG) notes that the proposed work qualifies for the state exemption under 310 CMR 10.0, but these exemptions are not allowed under the Brewster Wetland Bylaw (Chapter 172). Since the lot footprint is not expanding, the work would be permittable by Request for Determination of Applicability under the state regulations, but the Commission should make the final determination given parts of the work are in the 0 to 50 foot buffer to the pond. Ron Slowek (RS) notes for the record that he is an abutter to the park, but BG points out that this is a procedural discussion rather than a vote to approve a project. Kim Pearson is okay permitting the work by RDA; BG concurs given the Department's cooperative permitting history. Chris Miller (CM) has no issue with the proposed lot maintenance but notes the Commission should follow up about the Chapter 91 permitting for the boat ramp. BG will handle. Bruce Evans (BE) moves to require the filing of an RDA for the proposed work on theCliff Pond parking lot and ramp. Kim Pearson (KP) second. Approved 6-0-0. 6c. Annual Monitoring Report requirements Bill Grafton (BG) suggests that additional guidance is needed for residents as to what is needed in the Annual Monitoring Reports often required as a condition of project approval; some standardization in terms of required information and formatting would make it easier for Conservation staff, applicants and their consultants. To this end, BG would like guidance from Commissioners as to what they want to see in these reports. More complex projects, such as those involving coastal stabilization or beach renourishment, may require professionally prepared reports. Steve McKenna (SM) agrees this is an important discussion but suggests that the matter be tabled to when there is a lighter agenda. Gary Kaser (GK) concurs and suggests that BG hold a workshop with one or two Commissioners to work up draft forms or guidelines. Ron Slowek (RS) has some ideas on how to streamline the process but they will take some time to discuss. The matter is tabled to later in the meeting. After the public hearings, the Commission discusses what guidelines and requirements they would like to see for Annual Monitoring Reports (AMR). Bruce Evans (BE) would like to see a form that the applicant could fill out. BG notes this may not be feasible for all projects. Chris Miller (CM) adds that every site is different, and some projects are more complex than others. It may be possible for homeowners to do their own reporting on vista pruning or invasives management, but not coastal stabilization, and the guidelines should reflect this. If reports lack sufficient data, this is difficult to rectify when a Certificate of Compliance request is pending. SM agrees that certain projects require professional reports but doesn't want to create an additional expense that would take away funds for improvements in the field. CM notes that specific standards as to beach renourishment, such as required cover over coir logs, may make the monitoring task easier for applicants. All present discuss ways to classify projects and reporting requirements by complexity; more than one form and standard due dates for planting reports, based on planting seasons, may make sense. Kim Pearson (KP) notes that BG's attention to detail will be valuable in the COC review process and asks about Annuals Monitoring Reports with respect to stormwater. CM states most stormwater monitoring and management issues are addressed in Best Management Practices in the stormwater performance standards and in the Operations and Maintenance plans required for larger projects. The Commission's responsibility on minor stormwater projects generally ends with Page 2 of 7 Conservation Commission Meeting Minutes — July 11, 2023 issuance of the permit. BG required that applicants in Marshfield add an "impervious table" to site plans that allowed the impervious coverage on a site to be tracked over time which aides the Commission is evaluation cumulative impervious surfacing and any cumulative adverse effects. All agree that a working group should move forward with specific forms and guidelines; BG will reach out for assistance as needed. 8. Notice of Intent 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, and bordering land subject to flooding and buffer zone to bordering vegetated wetlands. The applicant has requested a continuation to the September 26, 2023 BCC public meeting. Kim Pearson (KP) moves to continue to the September 26, 2023 Commission Public Meeting to allow the applicant's consultant additional information to address the Commission's request for additional information. Ron Slowek (RS) second. Approved 6-0-0. Bruce Evans recuses from the discussion and vote leaving the meeting. 8b. 660 Villages Drive, SE9-1951, 75-13 (33-95-2). Continued 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. David Haines (DH), Haines Hydrogeologic Consulting, present for applicant. They have revised the proposal to eliminate the use of spray herbicide treatment as discussed in the initial hearing. They have also received a comment letter from National Heritage Endangered Species Program (NHESP) finding that the project will occur in habitat for two protected species, Maryland Meadow Beauty and Two -flowered Rush, and setting forth required conditions to prevent a prohibited take which includes no use of foliar spray. DH notes that no work will actually take place in the wetland where the two species are located. Ron Slowek (RS) believes the outstanding issues have been addressed with NHESP's conditions. Bill Grafton (BG) notes that NHESP's conditions will b-- incorporated into the Order of Conditions, and he has no additional concerns. There was no public comment. Kim Pearson (KP) moves to close and issue an Order of Conditions with standard Special Conditions and the Natural Heritage Endangered Species Program Special Conditions details in the June 27, 2023 letter. Gary Kaser second. Approved 5-0-0. Bruce Evans rejoins the meeting. 9. Request for Certificate of Compliance 9a. 22 Gulls Way, SE9-1897 62-18 (4019-3) — Edward Taetosian Page 3 of 7 Conservation Commission Meeting Minutes — July 11, 2023 Paul Shea (PS), Independent Environmental Consultants, present for applicant. He has recently submitted As -Built plans for the approved work, which included stair replacement, deck expansion, driveway repairs, and outdoor shower installation. A change from a concrete to asphalt driveway was approved by the Commission. A proposed vista corridor was not created. Bill Grafton (BG) visited the property and recommends issuance of the COC. Kim Pearson (KP) moves to approve a Complete Certificate -of Compliance for SE9-1897 at 22 Gulls Way. Gary Kaser (GK) second. Approved 6-0-0. 10. Request for Extension Order of Conditions 10a. 10 Nancy May Path, SE9-1550. 91-14-798 (7-11-1) — Mina & Nancy Kaddis Bill Grafton (BG). gives a brief history of the property, noting that the project was permitted by Easton Property Management (EPM) in 2012 and the house sold to the current owners in 2021. EPM provided a $10,000 performance bond in 2018 which, per a November 29, 2018 memorandum from previous Administrator Noelle Aguilar, was to be held until construction and mitigation plantings had been completed. Nevertheless, EPM has requested several times that this bond be returned. Additionally, an Enforcement Order was issued on 7/27/2021 for the placement of gravel, stone steps, and plastic grass in the resource area by the new owners. BG recommends that the Commission grant a two-year extension but deny the request for return of bond and require plantings to be made in the Fall 2023 growing season and an implementation planting report submitted by a professional consultant by December 1, 2023; the Commissioners concur. BG will send correspondence to the owners advising that a dissolution letter will be issued once the violations have been addressed. Kim Pearson (KP) moves to approve a two-year extension of the Order of Conditions SE9-1550 at 10 Nancy May Path to July 11, 2025 and direct the Conservation Administrator to include a message in the cover letter that the required planting mitigation must commence in the Fall 2023 planting season, three (3) successive growing seasons will be required, and an implementation planting report prepared by a professional consultant following the Commission's reporting requirements must be submitted to the Conservation Administrator by December 1, 2023. Gary Kaser second. Approved 6-0-0. Kim Pearson (KP) moves to deny the request for the return of the bond as it is required to remain in the Town account for the duration of the project until a Certificate of Compliance is approved, issued, and recorded, with evidence of the recording is submitted to the Conservation Administrator. Gary Kaser (GK) second. Approved 6-0-0. 11. Show Cause 11a. Continued - Brown, 2628 Main Street, 89-14 (15-113-2) & 89-2 (27-4). 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 Stephen Brown (SB). CS notes that they recently submitted a signed proposal for the next phase of restoration work from BSC Group that includes a site walk with Bill Grafton (BG), three post -walk meetings, sedimentation review, updated existing conditions plan, and evaluation of and plan to replace an unpermitted culvert. They are also seeking to combine the two existing lots into a single lot and are seeking a continuation to allow for implementation of the proposed work. DS is concerned about the potential cost to replace the culvert but believes they have been acting in good faith, and wants to see work started as soon as possible. Page 4 of 7 Conservation Commission Meeting Minutes — July 11, 2023 BG opines there are a few parts of the proposal that still need work, but he is willing to work with CS and DS to address them; receipt of the signed proposal makes dissolution of the 1985 Enforcement Order (EO), incorporating its intent into the ongoing Court order, possible. They are also close to finalizing a punchlist of outstanding tasks and issues that would open the door to a progressive dissolution of the subsequent EOs. Ron Slowek (RS) acknowledges the signed proposal but is not ready to authorize dissolution of the 1985 EO without evidence of a retainer and start date for work. DS indicates that the retainer has not been sent yet; he is waiting for the Great Cape Co -Op Treasurer to sign the check; they needed to know the full scope of work in order to establish the deposit amount. BG states that a preliminary meeting with Matt Creighton (MC) of BSC Group, is set for July 26, 2023; he hopes the site walk can be performed in early August and suggests a 60 -day deadline for completion of the final revisions to the restoration plan. RS would prefer a 45 -day deadline, as the Commission has been more than patient in this matter and he wants to avoid the impression that SB has been given special treatment. Gary Kaser (GK) concurs; it is like "Groundhog Day" to keep having these repeated hearings. Kim Pearson (KP) asks whether SB and Great Cape have the necessary funds to actually implement the restoration plan once finalized - "Are you prepared for this?" DS indicates they have the funds to pay for "this scope of work" in the current proposal. The property is for sale and Great Cape is interested in purchasing it, but funding beyond the current phase of work depends on who the buyer is, which is "still up in the air." GK notes it is unclear whether a new owner would commit to completing the restoration. RS adds that SB's balking at the restoration cost at the previous hearing was of great concern. DS represents that "we're going to move onto a restoration plan no matter what" but is not sure all revisions can be completed within 45 days - "Nobody can answer that question until we find out what's there." Casey Chatelain (CC) notes that BSC Group employs multiple engineers who can hopefully start work now. CC also questions whether the site walk will uncover additional issues that might require further restoration; DS states that MC and Kieran Healy from BSC Group have reviewed BG's description of existing conditions; they are confident that their proposal will address all issues, and the culvert is the main uncertainty. He will ask BSC Group to get started before MC returns from vacation. KP asks BG what the "worst case scenario" would be, in terms of cost of the culvert work? BG thinks the work will most likely involve some cleanup, wetland plantings, and some modification to the culvert that remains to be determined. CC suggests the Commission set an initial 45 -day deadline for revision submittals; if significant culvert work, DS and CS can reappear to discuss - "We really want to see progress on this." RS concurs. Attorney T. J. Hurrie (TH), representing abutter Michael Jardus (MJ), notes there have been violations on this property since the mid -eighties and this hearing in particular has been ongoing for over two years, during which time a preliminary injunction was issued by the Barnstable Superior Court. As such, TH urges the Commission to adopt the 45 -day schedule, hold SB to the same standard to which they have held other residents, and consider fines if the standards are not met. MJ asks confirmation from DS or CS that there is no cutting or clearing taking place on the property currently. CS notes that it was agreed that the cutting or trimming proposed by SB at a previous hearing would not take place until the BSC Group proposal was signed and delivered to the Commission; any subsequent trimming would take place under BG's supervision. CS also acknowledges the Commission's frustration but opines that progress is being made on their end, as they understand the violations must be resolved in order for the property to be sold. CS represents that no cutting or trimming will take place until the Commission has approved it. MJ notes he has heard equipment noise that appears to have come from the property; he can't confirm it but "Steve has a habit of doing things despite what his attorney might say." RS is not ready to approve the additional cutting at this point. GK suggests that they wait until BSC Group has received the payment; the Commissioners concur. CC reminds CS and DS that BG needs to be advised of any work before it takes place, and it is imperative that no further violations occur on the property. CS will convey this to SB. Town Counsel Alex Weisheit (TC) notes that the enforcement action initiated by the Commission in Barnstable Superior Court is still active.. He is willing to work with CS on a stipulation regarding progressive dissolution of the Commission Page 5 of 7 Conservation Commission Meeting Minutes —July 11, 2023 EOs provided benchmarks continue to be met. AW is comfortable with dissolution of the 1985 EO at this point and will tie in the other compliance items into the stipulation. BG will work with AW and CS on the specific benchmarks to be noted in the stipulation. RS would prefer to dissolve the 1985 EO after the 45 -day deadline for restoration plan revisions is met - "1'm not ready to dissolve anything tonight." Kim Pearson suggests that they wait until after the stipulation is finalized and approved by the Commission, hopefully at the August 8 meeting. BG would prefer to dissolve the 1985 EO sooner rather than later, as this would be a show of good faith and there are three other outstanding Enforcement Orders. CC polls the Commissioners as to whether to dissolve the 1985 EO now: CC no, wait for the stipulation in writing; RS no; BE yes based on Town Counsel's advice; GK yes, enough other leverage; SM no, let the attorneys stipulate; KP no. Poll results 2-4-0 against. Kim Pearson (KP) moves to authorize Town Counsel to work with Attorney Senie on a Stipulation as to progressive dissolution of the outstanding Enforcement Orders. Gary Kaser (GK) second. Approved 6-0-0. Kim Pearson (KP) moves to require the kick off meeting to take place on the return of the BSC Group's staff and require completion of the restoration plan with all revisions by August 25, 2023. Gary Kaser (GK) second. Approved 6-0-0. DS states it was his understanding that they would get to conduct the trimming work proposed as soon as they submitted the agreement, not when they submitted the check, and the goalposts seem to be moving. BG acknowledges the Commission's frustration but suggests they should be ready to take some risks as a show of good faith -"maybe tonight's not the night." KP suggests the Commissioners will be more comfortable once concrete deliverables, such as the BSC Group payment and written Stipulation, have been received, so they don't have to rely on anyone's word. CC notes that the agreement with BSC Group does not take effect until they receive their retainer. GK adds that the Commissioners, all volunteers, have been hearing talk and promises for over two years with respect to this matter. CS opines that the Commission position that no work can start until the payment goes out is reasonable, and will continue to work with all parties. CC thanks CS and DS for the progress they have made to date. Kim Pearson (KP) moves to continue the show -cause hearing to the July 25, 2023 Commission public meeting. Gary Kaser (GK) second. Approved 6-0-0. 12. Request for Minor Change to Plan 12a.183 South Pond Drive, SE9-171188-5 (27-94) requests Commission approval for changes in native plantings under the guidance of Conservation Administrator Aguilar- Marty Lucenti. Applicant Marty Lucenti (ML) present. The Order of Conditions SE9-1711 required 39 mitigation planting of specific species; however, he struggled to implement the plan as approved due to rising pond levels and unavailability of certain species called out on the plan. He has since altered the plantings based on a list of native Cape Cod species provided to him by project engineer John O'Reilly and prior Conservation Administrator Noelle Aguilar, and these have been more successful. ML is seeking Commission approval of the revised mitigation planting plan. Bill Grafton (BG) has no issues with the changes in the mitigation planting plan but suggests the Commission approve it; the Commissioners also have no issues, with Kim Pearson (KP) noting there is a greater variety of species in the revised mitigation planting plan. Bruce Evans (BE) moves to approve the Minor Change to Plan associated with 183 South Pond Drive, Lucenti/SE9-1711. Kim Pearson second. Approved 6-0-0. Page 6 of 7 Conservation Commission Meeting Minutes —July 11, 2023 15. Report of Natural Resources Director _ Chris Miller notes that the bacteria sampling in the ponds and along the coast has been ongoing. There have been no closures to date, but caution signs due to discoloration and possible cyanobacteria have been posted at Walkers and Schoolhouse Ponds. 17. Matters not reasonably anticipated by the Chair Bruce Evans received an email stating he had been reappointed to the Water Quality Review Board; he has advised the Chair that Kim Pearson had been appointed the Commission liaison, but they need documentation to that effect; Bill Grafton will follow up. 19. Next Meeting July 25, 2023 20. Adjourn — Ron Slowek (RS) moves to adjooi'ri. Gary Kaser (GK) second. Approved 6-0-0. Meeting adjourned at 7:58 PM. Respefilly submitted-____ 4 Cassandra West, Senior Department Assistant, Dep xtnient of Natural Resources Page 7 of 7 Conservation Commission Meeting Minutes — July 11, 2023