HomeMy Public PortalAboutcons com 2022-08-16Orleans Conservation Commission
Nauset Room or Via Zoom
Hearing, Tuesday, August 16th, 2022
-vP)?
PRESENT: Chair Ginny Farber, Vice Chair Drusilla Henson, Clerk Jerry Wander, Member Walter
North, Member Bob Rothberg, Member Ron Mgrdichian, Member Mike Brink, Associate Member
Judith Bruce, & Conservation Agent John Jannell
ABSENT: Associate Member Maia Ward
8:30 a.m. Call to Order
Notices of Intent
Joel Sklar & Adrienne M. Shishko 34 Thayer Ln
By Coastal Engineering Co., Inc. Map 63, Parcel 44. The proposed hardscape and landscape
improvements including invasive plant management. Work will occur within the 100' buffer zone
to the Top of a Coastal Bank and Edge of Salt Marsh, on a Coastal Bank, within Land Subject to
Coastal Storm Flowage, and within the Pleasant Bay ACEC.
Brad Malo, Coastal Engineering Co., and Seth Wilkinson from Wilkinson Ecological Design
were present on behalf of the applicant. The applicant, Joel Sklar, was present via Zoom. Maia
Ward joined the hearing.
Mr. Malo reviewed the existing conditions plan and the process by which they decided to
propose the reductions on the water side of the home. He stated he thought they've compiled a
proposal that meets the performance standards without any adverse effect to the resource
areas. There is an extensive invasive management plan and planting plan, including a buffer strip,
proposed. Nothing is proposed in the ACEC except vegetation work.
Mr. Wilkinson summarized the restoration project. The applicant had goals to restore
more of a buffer along the top of bank with shrubs over an area of 700 sf and a secondary goal
to preserve the existing views.
Mr. Brink asked about some fill proposed in the 100' BZ. Mr. Malo responded that the
grade will be modified, fill will be about 1-2'. Mr. Brink asked, where will the fill come from? Mr.
Malo responded from the pool area if soils are suitable, it could come from somewhere else on
site but if not, it will be clean fill from offsite.
Mr. Brink asked about the meadow mix, what will it be? Mr. Wilkinson said a native mix.
Mr. Wilkinson pointed out that they proposed to remove only 1 dead pitch pine and 1 dead oak,
there is an error on the plan, we aren't removing a second dead pitch pine because it's not dead.
Ms. Henson expressed some concerns of the stone steps creating a waterfall affect. Mr.
Brink requested detail on the steps.
Mr. Jannell said it appears they don't channelize something that will go further toward
the resource area. Ms. Farber said it's still more water runoff.
Mr. Rothberg said he'd want to know that the swale could absorb the water.
Ms. Bruce said these stone steps create a waterfall, and don't seem to work well in our
buffers. She suggested timber steppers with gravel. The stone steps are also obvious from our
public view shed.
1
Ms. Henson asked in the view corridor, are any branches removed? Mr. Wilkinson
responded, yes.
No public comment was heard.
Mr. Malo summarized what he thought the Commission may be looking for at the next hearing:
To revisit the runoff coming off of the steps; revisit the composition of the steps themselves;
provide a detail of the stairs.
Ms. Farber stated that the preference would be dug -in timber steps. Mr. Malo said there
is a durability element that was considered.
MOTION: A motion to continue the public hearing to 9/6/22 was made by Drusy Henson and
seconded by Jerry Wander.
VOTE: 7-0-0 Unanimous
Thomas & Kristy Cunningham 112 Arey's Ln
By Ryder & Wilcox, Inc. Map 63, Parcel 5. The proposed raze and replacement of a single-family
dwelling and site restoration. Work will occur within the 1001 buffer zone to the Top of a Coastal
Bank, on a Coastal Bank, within Land Subject to Coastal Storm Flowage, and within the Pleasant
Bay ACEC.
David Lyttle, Ryder & Wilcox, and Caitrin Higgins, Wilkinson Ecological Design, were
present to review the application. The architect was present in the audience to answer any
questions if necessary.
Mr. Lyttle reviewed the existing conditions, proposed project, and coverage calculations.
Ms. Higgins stated that WED is doing 20,000 sf of work that includes 3 main areas:
woodland restoration, lawn removal, and pond edge restoration. They will be performing
invasive removal and restoration plantings. There is a healthy tree and shrub layer on site.
Mr. Brink said he prefers natural trim as opposed to white trim. White trim from the view
shed sticks out.
Mr. Lyttle said the applicant would prefer the Cape Cod look and want the white trim, if
you feel that strongly it would have to be conditioned.
Ms. Henson said since it is a larger house, her concern was view shed. How much pruning
is proposed for that Maple? It's the only tree directly in front of the new proposed house. Mr.
Lyttle stated they were hoping to prune after the house construction so they can see where the
benefit may be for view pruning. Ms. Henson asked, can we have you come back after the house
is constructed?
Mr. Jannell stated that the finer branches are not the main branches of the tree. He
described how an arborist may approach this tree pruning to maintain the health of the tree. The
Commission could condition it take place under the care of an arborist to prune it with goals of
health and view in mind.
Ms. Farber asked could the stairs zigzag, so they aren't straight down. It looks to her that
with the retaining walls there will be some grade change. Mr. Lyttle said the fill behind the
retaining wall will be removed so it will be a walk out.
2
Mr. North was concerned about the horizontal spread of hardscape footprint on the site.
it doesn't trigger an aesthetic issue, it's just the overall way the landscape can or cannot function
given the mass.
Mr. Lyttle stated that there is a lateral expansion of the dwelling, and it allows the family
a patio and deck but it's occurring within previously altered areas. There is still adequate room
on the site, I don't think it will hinder wildlife corridors. It doesn't require zoning relief, the
resulting dwelling is 2700 sf, it's not a huge structure by any means.
Ms. Farber said she preferred expansion laterally to avoid intrusion into the ACEC.
Ms. Bruce asked, could there be plantings on either side of the stairs? Not view blocking
plants but low growing shrubs to perhaps prevent the sheeting affect. The view corridor
proposed is perfect, it's narrow with branches, it's what we prefer. In favor of waiting to post
construction for pruning up limbs of the Maple tree, Regarding the more visible trim with white,
any way that can be minimized helps our decisions on vista pruning. Natural cedar that
disappears into the woods will allow more pruning.
Mr. Lyttle suggested proposing a native harmony mix along the edge of the stairs instead
of shrub planting. It helps take up stormwater runoff.
The Commission concurred that this would work.
Mr. Brink asked about the vegetation work down by the water and how it might open up
the view. Ms. Higgins responded that it should remain very similar. There's a lot of clethra and
they are only removing 3 locusts, so it won't open up the view.
No public comment was heard.
MOTION: A motion to continue the public hearing to 9/6/22 was made by Drusy Henson and
seconded by Bob Rothberg.
VOTE: 7-0-0 Unanimous
David L. Quinn 8 Judah's Wy
By Ryder & Wilcox, Inc. Map 26, Parcel 43. The proposed raze and replacement of a single-family
dwelling and site restoration. Work will occur within the 100' buffer to the Top of a Coastal Bank.
David Lyttle, Ryder & Wilcox, was present and reviewed the application. David Quinn,
property owner, was present. Mr. Lyttle reviewed the proposal, it's a small, low dwelling. They
are going from 3 bedrooms to 1 bedroom. The property will be required to hook up to town
sewer. He reviewed the resource areas on site. There is a proposed elimination of dwelling and
hardscape in the 50' BZ, most of the increase is occurring in the 75-100' buffer. A cesspool
proposed to be removed. From a human impact standpoint, it's an improvement to the site. Mr.
Lyttle reported that he provided a variance request for the necessity to do work within the 50'
BZ to remove the structures. Once the buildings have been removed, they can move the LOW
back to beyond the 50' BZ and restore the disturbed area with grass seed and blankets.
Mr. Mgrdichian was impressed with the positives. Mr. Brink agreed, his only question was
are you taking any nonnatives out? Mr. Lyttle responded, no.
Mr. Wander asked, any thought to take the invasives out and plant natives? Mr. Quinn
said yes, in time he will do it.
3
Mr. Wander asked about an 18" locust, why not take it out? Mr. Quinn said he would take
it out if they'd like. Ms. Bruce suggested removing the locust and planting a couple of small
natives. It does offer screening and shade.
No public comment was heard.
MOTION: A motion to continue the public hearing to 9/6/22 was made by Drusy Henson and
seconded by Mike Brink.
VOTE: 7-0-0 Unanimous
Continuation
Paul & Jane Harrity 57 Kenneth Ln
By Ryder & Wilcox, Inc. Map 63, Parcel 34. The proposed vista pruning. Work will occur on a
Coastal Bank, within Land Subject to Coastal Storm Flowage, and within the Pleasant Bay ACEC.
David Lyttle, Ryder & Wilcox, was present and reviewed the materials submitted since
the previous hearing. He described the goals of the pruning including that they want it to have a
feathered look. They are proposing to create a view corridor approx. 50' in width and approx.
13' in height. The proposed pruning will be less than 1/3 of the existing trunk height.
Mr. Brink felt he had clarity on the view corridor, it works for him. He continued, the
information that he had in the packet about the lawn is exactly what was on the original plan,
it's almost 70% fescue and that answers that question. Mr. Brink was ready to approve the
project.
Ms. Henson had no comment.
Mr. Wander asked for clarity about the number of saplings? Mr. Lyttle said there were 5
but that 1 is outside of the view corridor, he wasn't sure if he could ask for the 5. They would
like to remove it but it isn't on the plan because it doesn't fit within the 50'.
Mr. North felt the view that exists is already filtered in a nice way and he wasn't
comfortable with the trimming being proposed in such a wide corridor. He said he understood
the removal of undergrowth on the left as you're looking from the house but he was still
concerned with the width and the extent of the pruning.
Mr. Rothberg said no comment.
Ms. Bruce agreed with Mr. North. She said she is ok with the 5 saplings; she would limit
it to 12' high and wouldn't agree with taking limbs hanging into the view corridor.
Ms. Ward echoed Mr. North's and Ms. Bruce's comments,
Mr. Brink said he was also ok with the 5th tree outside of the corridor, seems to be de
minimis. Many Commissioners agreed.
Ms. Henson said having the window bereft of all branches, which seems to be what
we're approving even if it doesn't come to pass, seems to be an extreme approach. It's just
going to be tree trunks and that is not a filtered view. The evergreen branch could stay.
Mr. Lyttle said that at least twice he's read the pruning regulations back to you. We are
trying to work within your regulations. We've provided you with a good proposal and you will
have to tell the Harrity's what you want them to do because what we're proposing is
reasonable.
4
Ms. Harrity entered the meeting room. She apologized for being late, they had to
commute 90 miles. She began to review what the Commission had previously asked for. She
said you asked us to use Regan as an example. Ms. Farber said we asked you to look at it as 1
possible example, not as the standard. Ms. Harrity said you suggested we use that property as
an example, and we take your suggestions to heart. Mr. North said he had objected to that
being cited as an example. Ms. Harrity continued that all along we've been willing to take
suggestions, and you make suggestions, and we take them into account. We don't want, what
seems to be an erroneous suggestion, that this will be completely devoid of branches. This is
our 9th meeting and we're at a loss. We want to adhere to your suggestions; we want to adhere
to your regulations.
Ms. Farber asked Mr. Jannell to review the letter received by the Conservation
Department. Mr. Jannell reported that they'd received 1 letter of support from Robert L.
Wilkinson of 8/10/22. The Commission has copies of this letter.
Mr. Rothberg said 1 would have an easier time voting for it if I didn't see it as a complete
window. You say there will be branched but we are approving no branches, this is difficult. It
sounds like what you want is something we'd be quite happy with but that isn't what we're
being asked to approve.
Ms. Harrity asked how people present to you in a way that makes you willing to approve
it. She said you suggested we look at the Regan property. Mr. North interjected to say that we
did not suggest that. That was a suggestion made by one Commissioner and it does not
represent the view of the Commission. I would respectfully ask you to please listen to what we
say carefully.
Ms. Harrity said she is listening and that was the only suggestion made, we didn't have
any others to go by. We are here without an understanding of the real issues that you have. Ms.
Farber said she gave other examples, and that Ms. Harrity was taking 1 sentence out of a longer
series of sentences.
Mr. Lyttle said I'd like to try to move this forward. How do we get to the point where
some branches remain? Which ones do and which ones don't? How do we move forward
without going out to the site and tying a flag around every single branch, which will require
another on -site?
Ms. Bruce suggested flagging branches should be the approach. Ms. Bruce said, had we
known you wanted an example of a filtered view we could have provided better examples. I
think there is not a comfortable feeling that you are hearing and understanding us because
there have already been two issues.
Mr. Jannell said it sounds like there is some comfort level with top, bottom, and sides.
We could amend this Order with a new condition that would allow for pruning and saying that
the window shall not be devoid of all branches. This would be a condition of an Order that
would be enforceable with fines and penalties.
Mr. Rothberg said they could go out there and designate some trees that will and will
not have branches.
Mr. Lyttle said we need to leave that up to the Commission at this point, I don't think
this warrants another on -site. Never gotten into the minutia we've gotten into now in the 30
years he's been working. The onus is on you to tell them what you will allow them to do even
though they are complying with your regulations.
5
Mr. Brink said he was concerned because as Commissioners we don't design projects. It
seems like what we are saying now is that we want to design their view corridor. Our
regulations don't talk about branches. I think this proposal complies with the regulations. We
can condition that branches remain, and that the branches that come out are under the care of
an arborist. The arborist makes a decision as to what would be healthy for the tree. Mr. Brink
stated he is comfortable approving the AOOC with the condition that branches remain, and the
process occur under the care of an arborist. Mr. Mgrdichian agreed with Mr. Brink completely,
we need to move ahead. Mr. North said that's a reasonable approach.
Ms. Henson said we should poll the Commission, are we comfortable with "shall not be
devoid of all branches", or should it be a percentage of branches?
Ms. Harrity said in terms of precedent, have you ever tagged branches? Mr. Jannell said
no. Mr. Lyttle said a branch or two, but not to this this extent. Ms. Jannell reviewed the
regulation on pruning, metrics are not applied, every site is different.
No public comment was heard.
Ms. Ward said a percentage of branches is a reasonable request.
MOTION: A motion to close the public hearing was made by Drusy Henson and seconded by Jerry
Wander.
VOTE: 7-0-0 Unanimous
MOTION: A motion to approve the project at 57 Kenneth Ln attaching the Conservation
Commission findings and standard conditions and with the special condition that all pruning be
done under the care of a licensed arborist and the view corridor should not be devoid of all
branches in order to maintain a filtered view. The approval includes the removal of the trees 1,
3, and 5 on the coastal bank and includes the saplings shown on the view corridor sketch of
8/10/22 and 1 additional removal on the view corridor line as discussed at our on -site was made
by Drusy Henson and seconded by Jerry Wander.
VOTE: 7-0-0 Unanimous
References: Project Narrative dated 10/28/21; Ryder & Wilcox Site Plan dated 12/15/21; Ryder
& Wilcox View corridor sketch 8/10/22; Mulcahy Design Group revised plan dated 4/11/22; Letter
R&W 8/10/22; photos dated 7/30/22 & 8/10/22.
Ms. Harrity asked if she may make some final comments. Ms. Farber said yes. Ms. Harrity
said she wanted to express some frustration with this process and offer suggestion for
improvement. She highlighted examples that she said fall into 4 categories: Stewards of the land;
Public servants; Financial considerations; Experts in the field.
Regarding stewards of the land, your intentions are good but there was never consistency
among members on a broad range of topics. There was confusion and sometimes clear disregard
about the regulations.
She continued, regarding public servants, it is our understanding that there is an
obligation to respect the people you serve. There was never consideration given to us as people
who have lives outside of conservation.
6
She continued, regarding financial considerations, there were no considerations for costs
associated with this undertaking. The Commission should be cognizant of the burden you place
on those that come before you.
She continued, regarding experts in the field, there were many times people with real
expertise were disregarded, both in meetings and on -site. The experts were ignored,
contradicted, and treated rudely. This was most recently expressed at an on -site where two
groups of people were having sidebars, and others were wandering around while our hired
consultant was speaking. Regulations, as we see them, are written thoughtfully by experts and
should be given more consideration than they were. Deep knowledge and ready access to
regulations will offer clarity and efficiency to the process. We hope you will take our suggestions
to heart and improve the process for others.
Revised Plan Request
Kathleen & Jeffrey Moore 10 lyanough Rd
By Coastal Engineering Co. Inc. Map 13, Parcel 87. The proposed rear and side yard grading and
removal of concrete driveway to resolve existing drainage issues, installation of split rail fence
and landscape boulder wall. Work will occur within the 100' Buffer Zone to an Isolated
Vegetated Wetland.
Brian Weiner, Coastal Engineering Co., was present and reviewed the application. Mr.
Weiner said this property was before the Commission this past winter. He said it's a difficult lot
in the sense that it was graded toward the foundation. He was before the Commission to alleviate
these drainage issues on the lot now that we're at the point of getting to the final grading,
landscaping, and seeding. The homeowner has had flooding and ponding as a result of the
existing conditions. He is hoping they can approve this work under the existing OOC.
Mr. Jannell stated he directed the applicant to this type of filing. It's a local wetland, so
its small in nature. The water issue has left them wanting to get in front of the Commission
quickly. The concrete drive is going to pervious surface, any chance to eliminate concrete is a
great offering.
Mr. Brink asked how high is the boulder wall? Will the aluminum split rail fence that's
going across the whole yard prevent wildlife migration. Mr. Jannell said its right along the lawn
edge and there's probably not a lot of wildlife moving between this small wetland and the
surrounding area.
MOTION: A motion to approve the revised plan for 10 lyanough Rd with plan dated 8/9/22 was
made by Drusy Henson and seconded by Jerry Wander.
VOTE: 7-0-0 Unanimous
Certificates of Compliance
Eastward Companies 3 Snow Wy
By J.M. O'Reilly & Associates. Map 5, Parcel 21. The removal of an existing dwelling and
replacement with proposed dwelling. Work will occur within the 100' buffer zone to an Isolated
Vegetated Wetland.
Mr. Jannell reported that the project is in compliance.
7
MOTION: A motion to approve the issuance of a Certificate of Compliance at 3 Snow Wy was
made by Drusy Henson and seconded by Jerry Wander.
VOTE: 7-0-0 Unanimous
Administrative Review
James Hourdequin 48 Nauset Heights Rd
The proposed invasive species removal.
Mr. Jannell reviewed the proposal. He reviewed the area of clearing, a lot of which is
outside of jurisdiction, there are no tree removals proposed.
Ms. Farber stated that it appears to be an extensive project for an AR and she thinks
there may need to be conditions.
Mr. Jannell reported that the intent is to remove no natives at all.
Ms. Bruce stated that this sounds like a great proposal, but we would want oversight
ability that we don't get with an AR. It may be best handled under a NOI. Mr. Brink said i think
we need to put some conditions on this, it does seem to be extensive. I think it might be
difficult to approve as an AR. Ms. Henson said she was not comfortable approving this as an AR.
Mr. Wander concurred. Some Commissioners expressed concern about the application method
for invasive management.
MOTION: A motion to deny the application and direct the applicant to file a Notice of Intent for
the proposed work at 48 Nauset Heights Rd was made by Drusy Henson and seconded by Jerry
Wander.
VOTE: 7-0-0 Unanimous
Other Business
David Farquhar — 51 Willie Atwood
Mr. Jannell reviewed the standing Conservation Restriction over a large portion of the
property. We have a walking easement of Skaket Sea Path on a portion of his property. The
property owner has a tree that poses a view concern, it's getting large and is close to their deck.
There is one mugo pine and one Black oak tree. The mugo is outside of the restriction area. The
Black oak is just in the CR area. We consulted the CR and Mr. Farquhar has the right to approach
the Commission with a removal request. Mr. Janne!! said it is his recommendation that you can
approve it.
MOTION: A motion to approve the single tree removal of a black oak in the CR area at 51 Willie
Atwood Rd was made by Drusy Henson and seconded by Jerry Wander.
VOTE: 7-0-0 Unanimous
Pilgrim Lake Conservation Property
Mr. Jannell said the office was contacted regarding some of the vigorous growth of
emergent vegetation at Pilgrim Lake.
Jaimie Balliet, Orleans resident, wrote a letter to the Commission; he was present via
Zoom with his sons. He reported that the swim area is shrinking and its definitely posing a safety
challenge and loss of use. He was present today wondering if the Commission would consider a
8
management approach to remove the vegetation so the swim area could be restored to its
original size. He offered his help in shepherding this proposal through.
Ms. Farber stated that this is good timing because we are starting to put together our to
do list. She said thank you for volunteering to help.
Mr. Jannell said he will bring the property work list to the next meeting. If it's a project
you support we can add it to that list. We haven't done a project of this type ourselves and there
are some permitting requirements to think through. This is a Great Pond in the ACEC that may
trigger a lot of permitting requirements. If the state requires a permit and it's in the ACEC it may
require an ENF. He will try to find out for the September meeting what they can do.
Mr. Rothberg said he would like to see it done, but is it a big project or a little project?
We need to know about time and money.
Mr. Jannell said I must do some work to figure that out. If state permits need to be
obtained that would trigger an Environmental Notification Form (ENF), he must explore the
thresholds.
Ms. Bruce said the vegetation that's there is all native. She wondered if it was a good idea
to remove the vegetation. What is the amount of space we'd like to see cleared? She concurred
that we need to do some more research.
Mr. Brink, speaking as the liaison for the property, said that is a wonderful beach where
lots of kids swim. He thought permitting for the removal of vegetation is the right thing to do to
open it up so there is still access.
Mr. Jannell will get firmer answers on how they may be able to proceed. A vote of support
might be nice.
MOTION: A motion to direct the Conservation Agent to investigate the possible removal of
vegetation in the swimming area of Pilgrim Lake and add it to the management list was made by
Drusy Henson and seconded by Jerry Wander.
VOTE: 7-0-0 Unanimous
Mr. North said he'd like to request two items to put on the agenda for the future. One, it
is his understanding that the state hasn't issued new guidelines for LSCSF. He has long been
disappointed at the insufficiency of our current regulations. We have paused to get this guidance,
can we discuss our options? Should we wait or try to look at our regulations?
Ms. Farber reported that she just asked Mr. Jannell to get the work done by Harwich and
the work being presented at the public hearing in Chatham regarding regulation updates.
Mr. Jannell said there is a group working on what to bring forward and they are also trying
to determine whether it would be considered new regulation or new bylaw. He has seen nothing
from the state yet.
Mr. North said his second item is a process issue. We heard one of our applicants this
morning express dissatisfaction. We should have some kind of after -action review of that process
and see the extent to which some of those concerns were or were not legitimate. We are a public
body, and we should make sure we are acting accordingly.
9
Mr. Jannell suggested getting together as a group to have a work session about what our
regulations mean. What regulations do we want to talk about moving forward. Mr. North clarified
that his second point was more about our process rather than our regulations.
Chairman's Business
Meeting minutes of 7/19/22
Ms. Farber stated her suggested edit on page 5.
Mr. North added an additional point of clarify to his comments on page 7.
MOTION: A motion to approve the minutes of 8/2/22 with the edits just discussed was made by
Drusy Henson and seconded by Jerry Wander.
VOTE: 7-0-0 Unanimous
MOTION: A motion to adjourn the public hearing was made by Drusy Henson and seconded by
Ron Mgrdichian.
VOTE: 7-0-0 Unanimous
The meeting adjourned at 10:50 a.m.
Submitted by:
Kristyna Smith, Principal Clerk, Orleans Conservation
10