HomeMy Public PortalAboutConservation Commission -- 2012-01-03 Minutes Brewster Conservation Commission Minutes—Meeting Under Massachusetts General Law
131, §40,Wetlands Protection Act(ACT), 310 CMR Regulations
Massachusetts Department of Environmental Protection (MA DEP)
(M.G.L. C.131. §40)
And
Code of the Town of Brewster Chapter 172,
Brewster Wetlands Protection By-law(BWP By-law)
Call to Order
Chairman Stephen McKenna convened the Tuesday, January 3, 2012 meeting of the Brewster
Conservation Commission at 7:00 PM at the Brewster Town Offices, 2198 Main Street, Brewster,
MA.
Present
Chairman Stephen McKenna, Commissioners Bruce Evans, Ken Rollins, Hayley Winfield,
Conservation Administrator James Gallagher, Natural Resources Director Chris Miller,
Department Assistant Carol Spade
Not Present
Vice Chairman Donald Schall, Commissioner Jeanne Boehm
Chairman McKenna read into the record the following:
"As required by the Massachusetts Open Meeting Law,the Conservation
Commission is informing the public that this meeting will be audio* and video
recorded. Anyone else intending to audio record is required to inform the public.
Public Hearings
Requests for Determination of Applicability
(Continued Hearing)32 Cedar Hill LLC requests determinations as to whether the
construction of an addition to an existing dwelling within 100 feet of a coastal bank, is
subject to the Wetlands Protection Act and/or the Brewster Wetlands Protection By-law:
on 32 Cedar Hill Road, Assessors' Map 2, Parcel 50.
Eligible members;all;hearing was opened on December 13,2011 and continued(no testimony)
Representative, Stephanie Sequin, PE, Ryder and Wilcox, Inc.
Summary of Applicant Testimony
Stephanie Sequin represented the applicant. Mr. and Mrs. Paul Moses, property owners,
attended as well.
Referencing the site plan*. Ms. Sequin explained the way in which she determined the top of
coastal bank was in accordance with MA DEP Wetlands Program Policy 92-1: Coastal Banks
(see audio recording*).
She then described the proposed 148 square-foot addition; a small portion of which is within the
100 foot buffer zone to the coastal bank, and addressed the measures proposed for project
mitigation.
Relative to the Historic Interest under the BWP By-law, she stated that because the lot was
previously disturbed by the existing development, it is her understanding the Brewster
Conservation Commission does not require a Project Notification Form to the Massachusetts
Historical Commission (MHC). Notice to MHC is required only when the lot is undisturbed by an
existing structure.
As to the Conservation Commission's aesthetic interests* under regulations*of the BWP By-law,
Ms. Sequin stated she believed the height, scale, dimensions and design of an addition so far
Brewster Conservation Commission Minutes. January 3, 2012 1
from the wetland resource area will not alter or diminish the natural beauty and appearance of a
resource area visible to the public.
Summary of Conservation Commission Comments
The Commission consensually accepted Ms. Sequin's explanation of determining the coastal
bank resource area and the resource areas as delineated on the plan*of record.
The Commission concurred that historic value interests under the BWP By-law are archaeological
resources. It is the Commission's policy and instructions that a project does not require
notification to MHC in cases where a lot has been previously developed.
The Commission discussed the project's impact on the oak tree next to the addition and the
addition dimension discrepancies on the plan, and accepted Ms. Sequin's clarification that the
tree will not be impacted adversely by the project, and that the existing uneven dwelling
dimensions dictated the uneven addition dimensions.
Some of the Commissioners suggested although the owners have the right under wetland laws to
build an addition, they could have reduced the size of the addition slightly in consideration of
neighbors' views of the resource area from their dwellings. Others stated the project is minor and
does not significantly impact the resource area.
Summary of Public Comments
Members of the public expressing concerns over the project included Ronald Robson, Stan
Tenerowicz and attorney Roger O'Day, representing Elaine and Stan Tenerowicz. They believed
the project was applicable to the aesthetics and historic value interests under the BWP By-law;
primarily due to view obstructions resulting from the addition's design.
Mr. Tenerowicz read a letter* regarding these issues into the record, and submitted
accompanying photos.
Roger O'Day maintained the notice of the hearing by the applicant was defective under the By-
law in that notice was not given abutters across the traveled way on either side of those directly
across. He also believed the esthetics interest is applicable. For these reasons, a Notice of Intent
is required for this project. He discussed a third issue not applicable to the mandates of the
Conservation Commission.
Owner of the property, Paul Moses stated he believed his addition is very modest. He submitted
two photos*of the property; one of which was"photo-shopped" to show the proposed addition, as
seen from Cedar Hill Road. He added that with regard to past vegetation removal and pruning on
the property and mitigation for the proposed project, he is amenable to planting vegetation
required by the Conservation Commission.
Conservation Commission Decision
Chairman McKenna stated he accepts that the Board of Assessors' certified abutters' list* is
accurate; furthermore, additional abutters were notified beyond those required by law.
As to aesthetics, he appreciated the abutters' concerns for the project expressed in comments
and letters*, although views from neighboring houses is not an interest protected under the
BWP By-law. Aesthetics is an interest of every project reviewed under the BWP By-law. The
aesthetics interest is very subjective as to building design. Furthermore, it pertains not to limiting
the visibility of new development from the 100 foot buffer zone, but the resource area visible to
the public. The small addition barely within the 100 foot buffer zone is entirely consistent with
Negative Determinations issued historically under the BWP By-law for Requests for
Determination of Applicability. The owners will be required to partially screen the addition from
the resource area viewed by the public-the coastal beach - by planting native salt-tolerant woody
plants.
Brewster Conservation Commission Minutes. January 3, 2012 2
A Notice of Intent would not change the Conservation Commission's decision.
Following discussion on the past vegetation removal, Bruce Evans moved, Hayley Winfield
seconded the motion to Issue Negative 3 and 6 Determinations (see below).
Negative Determination
3.The work described in the Request is within the Buffer Zone, as defined in the regulations, but will not
alter an Area subject to protection under the Act. Therefore,said work does not require the filing of a
Notice of Intent, subject to the following conditions (if any).
6. The area and/or work described in the Request is not subject to review and approval by Town of
Brewster Pursuant to the Code of the Town of Brewster Wetlands Protection By-law.
The motion was Approved with Commissioners Evans,Winfield and McKenna voting in
the affirmative. Ken Rollins abstained.
Conditions will be written relative to protecting the large oak tree adjacent to the dwelling from
construction impacts, and submittal of a mitigation plan to include native, salt tolerant woody
plants to screen the addition, and where past pruning and vegetation removal has occurred.
List of documents*submitted for the project and discussed at this hearing
1. Request for Determination..,for 332 Cedar Hill LLC
2. "Site Plan Prepared for Paul Moses,dated 11/15/11"
3. Letter dated 1/3,2012 from Paul Tenerowicz,photos 1 -9
4. Letters in file record:Lisa K.Smith(undated),Elaine Tenerowicz,12/3,2011,Grace D.Bell,12/2,2011
Virginia and James Neumann,12/1/11.Ronald W.and Dorothy A.Robson,12/1/11,Nelson Graham,
11/28/11
5. Letter from Paul A.Moses,11/30/11
6. Photos from Paul A.Moses submitted 1/3/12
7. Brewster Wetlands Protection By-law Section 172-5. Notice;hearing
8. Request for Determination Filing Checklist under BWP By-law
9. BWP By-law and Regulations Section 7.01 General Regulations for Aesthetic Interests in all Resource
Areas
Notices of Intent
Town of Brewster Board of Selectmen proposes a photovoltaic site at the existing
Brewster landfill; work is to occur within 70 feet of inland wetlands -on 201 Run Hill Road,
Assessors' Map 35, Parcel 1.
Summary of Applicant Testimony
Anthony Zerilli, Weston and Sampson, Eric McLean, American Capital Energy.
Mr. Zerilli and Mr. McLean described the solar photovoltaic project, which is to be situated in the
capped landfill owned by the Town of Brewster. Referencing the Project Plan and Details*, they
explained it will be outside of 50 feet from the wetlands.
Weston and Sampson complied with MA Stormwater Management Standards by submitting the
required Stormwater Report* in the Notice of Intent. Additionally, as state protected species
habitat issues are applicable, they developed a species management plan*, included in the
Notice of Intent. Subsequently, the applicant and the Conservation Commission received a letter
from MA Division of Fisheries &Wildlife Natural Heritage and Endangered Species (NHESP)*
that the project will not adversely affect the Resource Area Habitat of state-protected rare wildlife
species, but must be conditioned*as stated in the letter, to avoid a prohibited "take"of the
Eastern Box Turtle(Terrapene carolina) (321 CMR 10.02).
Summary of Public Comments
Citizen Mark Farber questioned how vegetation can grow beneath the solar panels. Mr. Zerilli
explained they are designed to protect the vegetation, which will be maintained as needed.
Summary of Conservation Commission Comments
Brewster Conservation Commission Minutes. January 3, 2012 3
The Conservation Commission consensually agreed this solar form of energy is very worthy and
as conditioned*, the project will meet the performance standards of the WP ACT and BWP By-
law.
Ken Rollins moved, Bruce Evans seconded the motion to close the hearing to testimony and
continue to January 17, to allow staff to condition the project for the Commission's review.
Conditions shall include those required by NHESP. Continuance to January 17, 2012
Approved Unanimously
List of documents*submitted for the project and discussed at this hearing
1. Notice of Intent for American Capital Energy,Town of Brewster
• Stormwater Report
• "Cape and Vineyard Electrical Cooperative,Inc.,CVEC)Brewster Landfill Solar Facility Plan,
11/2011,Brewster Landfill Ground Mounted PV Facility Figures 1,C1.C2,01.02,G1"
2. December 16,2011 Letter to Commission and Applicant...from Thomas W.French,Assistant Director,
Natural Heritage&Endangered Species Division of Fisheries&Wildlife
(Continued Hearing) Ann T. Geary proposes to reconstruct an existing Coastal
Engineering Structure, add boulders to an existing "stone apron"structure, and place
sandbags and sand fill on a coastal beach and coastal dune, on 276 and 282 Breakwater
Road, Assessors' Map 4, Parcels 13, 14.
Eligible members;McKenna,Evans,Rollins,Winfield:original hearing; December 13,2011
The project proponent submitted a written request to continue the above referenced hearing to
January 17, 2012. Hayley Winfield moved, Bruce Evans seconded the motion to continue the
hearing to January 17, 2012. The continuance to January 17, 2012 was Approved
Unanimously.
(Continued Hearing) Dorothea Dugan, Et Al, proposes to construct a single family dwelling
within 50 feet of a coastal bank and in a riverfront. Associated septic system is proposed
to be within 100 feet of a coastal bank and in a riverfront, on 0(Parcel 9) Lower Road,
Assessors' Map 19, Parcel 9.
Eligible members;all;hearing was opened on November 15(no testimony)and December 13,2011 and continued
(no testimony)
The project proponent submitted a written request to continue the above referenced hearing to
January 17, 2012. Hayley Winfield moved, Bruce Evans seconded the motion to continue the
hearing to January 17, 2012. The continuance to January 17, 2012 was Approved
Unanimously.
As there was no quorum of Commissioners eligible to vote on the following continued hearing, in
accordance with Chapter 79 of the Acts of 2006, "An Act Further Regulating Meetings of Municipal
Boards"which amends Massachusetts General Laws Chapter 39, Section 23D, Commissioner
Hayley Winfield signed a"Certification of Review of Hearing Transcript" stating she thoroughly
examined all evidence received at the two Public Hearing she did not attend. Examination of
evidence included visiting the site of the subject hearings, reviewing the minutes and all evidence
received,on January 3,2012.
(Continued Hearing)Town of Brewster proposes to rehabilitate A. P. Newcomb Road,
replace a culvert and install a water main; on A. P. Newcomb Road, Assessors' Map 22,
Parcel, NA.
Eligible voting members:(Boehm),Evans,Rollins,McKenna continued from August 16,September 7(no
testimony),September 20,October 4(no testimony),October 18(no testimony),November 1 (no testimony),
November 15,2011 (no testimony),December 13(no testimony)
Summary of Staff Comments
The Conservation Administrator reviewed the special conditions with the Conservation
Commission.
Summary of Public Comments
There was no public comment.
Summary of Conservation Commission Comments
Brewster Conservation Commission Minutes. January 3, 2012 4
Following brief discussion, Ken Rollins moved, Bruce Evans seconded the motion to approve the
Order of Conditions with the special conditions and close the hearing. The motion was
Approved Unanimously.
As there was no quorum of Commissioners eligible to vote on the following continued hearing, in
accordance with Chapter 79 of the Acts of 2006, "An Act Further Regulating Meetings of Municipal
Boards"which amends Massachusetts General Laws Chapter 39, Section 23D, Commissioner
Hayley Winfield signed a"Certification of Review of Hearing Transcript"stating she thoroughly
examined all evidence received at the two Public Hearing she did not attend. Examination of
evidence included visiting the site of the subject hearings, reviewing the minutes and all evidence
received,on January 3,2012.
(Continued Hearing) Ocean Edge Resort, c/o Rick Roberto, CJ Management, proposes to
vista prune, creating views from condominium units to Cape Cod Bay, and remove
invasive species. The activity is proposed in and within 50 feet of coastal and inland
wetlands; off Nickerson Lane, Assessors' Map 14, Parcel 1.
Eligible members:(Boehm),Evans,Rollins,McKenna Continued from July 6,(no testimony),July 19, August 16
(no testimony),September 20,October 18(no testimony),November 1,(no testimony),November 15,December
13(no testimony)
Summary of Applicant Testimony
Matt Farrell, J. M. O'Reilly, attended.
Summary of Staff Comments
The Conservation Administrator reviewed the special conditions.
Summary of Public Comments
There was no public comment.
Summary of Conservation Commission Comments
The Commission reviewed draft special conditions with the Conservation Administrator.
Following brief discussion on herbicides, monitoring and a requirement for future invasive species
removal, Ken Rollins moved, Hayley Winfield seconded the motion to approve the Order of
Conditions with special conditions as amended, and close the hearing. The motion was
approved unanimously.
(Continued Hearing)Tai Tran proposes to demolish an existing building, construct a
single family dwelling and remove invasive vegetation within 100 feet of coastal and inland
resource areas, on 371 Robbins Hill Road, Assessors' Map 2, Parcel 32.
Eligible members;McKenna,Evans,Rollins,Winfield:original hearing;December 13,2011
Representatives, Dave Bennett, Geologist and RS, Bennett Environmental Associates, Inc.,
Jennifer Exner, MLS, Wilkinson Ecological Design
The public hearing of December 13, 2011 was continued to this date to allow the proponents to
consider reducing the deck size and incorporate measures protecting aesthetic and wildlife
interests, and for the Conservation staff to develop special conditions for Commission review
under the BWP By-law.
Summary of Applicant Testimony
Mr. Bennett stated he reviewed the draft special conditions earlier in the day, and had some
suggestions and questions for clarification.
Summary of Public Comments
There was no public comment.
Summary of Conservation Commission Comments
Following review, input from the applicant's representatives and brief discussion on the revised
restoration plan*, Bruce Evans moved, Ken Rollins seconded the motion to approve the Order
Brewster Conservation Commission Minutes. January 3, 2012 5
of Conditions with special conditions as amended, and close the hearing. The motion was
Approved Unanimously.
List of documents*submitted for the project and discussed at this hearing
1. Notice of Intent for Tai Tran
2. Wilkinson Ecological Design Restoration Plan 12/20/11
Citizens' Forum
There was no one present, wishing to speak at this time.
Requests for Extension to Orders of Condition
1. Brodrick, Malcolm H. and Marjorie K. Order of Conditions SE 9-1431, 237, 217, 0, 257, 267
Crocker Lane,5/206, 205,204-51,203,202
Following the recommendation of the Conservation Administrator, Bruce Evans moved,
Hayley Winfield seconded the motion to approve the above referenced request for a one-year
extension. The motion was Approved Unanimously.
Request for Return of Performance Check
1. Lo Smith, SE 9-1358, 286 Robbins Hill Road, 2/9
2. Thoburn Milar Stamm,Order of Conditions SE 9-864,Applicant,off Great Fields Road,
Assessor's Map 35, Parcel 53-2—Notice for Release of Performance Check
At the recommendation of the Conservation Administrator, Ken Rollins moved, Hayley
Winfield seconded the motion to release the performance checks for the above property
owners, whose projects are in compliance with their respective Orders of Condition. The
motion was Approve Unanimously
Requests for Administrative Review
1. Arthur Jensen, 88 Governor Prence Road,4/6,vista clearing on a coastal bank.
beach grass planting on coastal beach
The Conservation Administrator believed only portions of the above referenced project
meet provisions for activities under the mechanism of Administrative Review. He
recommended the cherry trees proposed for cutting not be pruned to reduce height and
the invasive shrubs not be pruned for height reduction.
Following review and discussion, Bruce Evans moved, Ken Rollins seconded the motion
to ratify the Administrative Review request as amended by the Conservation
Administrator. Approved Unanimously
2. Rita Gallant, 69 Eldridge Road, 30/2, 3 cesspool pumping within 100 feet of BVW
The Conservation Administrator believed the above referenced project meets all
provisions for an activity under the mechanism of Administrative Review and granted the
administrative approval. Following review and discussion, Ken Rollins moved, Hayley
Winfield seconded the motion to ratify the Administrative Review approval. Approved
Unanimously
3. NSTAR Electric Distribution Tree Pruning,within jurisdictional areas
The Conservation Administrator believed the above referenced project meets provisions
for an activity under the mechanism of Administrative Review and granted the
administrative approval pending receipt of the correct fee. Following review and
discussion, Bruce Evans moved, Ken Rollins seconded the motion to ratify the
Administrative Review approval; work to proceed pending receipt of fee. Approved
Unanimously.
Review and Approval of Minutes
1. November 15, 2011
Following review, Ken Rollins moved, Hayley Winfield seconded the motion to approve
the above referenced minutes as written. Approved Unanimously
Brewster Conservation Commission Minutes. January 3, 2012 6
2. November 15, 2011 Executive Session
Following review, Ken Rollins moved, Bruce Evans seconded the motion to approve the
above referenced minutes as written. Approved Unanimously
Discussions/Report of the Conservation Administrator
1. Conservation Mitigation Planting Assessment Report* by Michael Talbot on
Highland Moors and Seascape East Homeowners Association Open Space
Parcels; Enforcement by the Brewster Conservation Commission and After-the-
Fact MESA Filing for NHESP 9/18-10, 12/6-5
Conservation Administrator Gallagher reviewed the history of violations and mitigation
measures mandated by the Conservation Commission, for the new Commission
members, and requested the Commission determine whether to follow the
recommendations of the Mitigation Plan.
The Commission concluded the Conservation Administrator shall speak to Wilkinson
Ecological Design as to its status with the owners, and that Highland Moors and
Seascape East Homeowners Association shall remove the invasive species, as
contained in the report.
*Environmental Landscape Consultants,LLC aba Talbot Ecological Land Care Conservation Mitigation
Plan Assessment Report,December 13,2011
2. 0 Whidah Way, Long Pond Homeowners' Association,Assessors' Map 48, Parcel
8-8, containing a Conservation Restriction—Request from resident Timothy C.
Crane*for removing a tree for safety reasons
Following discussion of the request letter, the Commission consensually agreed the tree
presents a safety concern and may be removed. Mr. Gallagher shall write a letter to Mr.
Crane, grating that approval.
*December 19,2011 Letter to James Gallagher,Conservation Administrator,Brewster Conservation
Commission,from Timothy C.Crane
3. Violations/Enforcement Vasta, Order of Conditions SE 9-1470, 83 Dune Road, 0
Foster Road, 6/18, 999 0 review of monitoring report* and recent cutting/pruning
violations
Hamlyn Consulting represents Salvatore and Deborah Vasta to mitigate for unauthorized
pruning and topping of vegetation within 100 feet of the top of a coastal bank at the
above referenced property.
At this time, the Commission reviewed the required monitoring report*from Hamlyn
Consulting, and letter from MA Certified Arborist Jason Ford*, who also represents
Salvatore and Deborah Vasta.
Mr. Gallagher reported that as stated in the monitoring report, he observed new
unauthorized pruning of at least twenty-one (21) trees at this site, which he photo-
documented on December 19, 2011 (photos contained in the Conservation
Administrator's Administrative Report). The fresh cuts had been painted green-grey,
apparently as camouflage for the cutting. The property was sold in December of 2010;
the new owners are Jonathan and Bonny Whitcher. In his letter, Jason Ford stated he did
not engage in the unauthorized cutting.
Following review of the monitoring report and discussion, the Conservation Commission
consensually directed the Conservation Administrator to issue an enforcement order and
four$300.00 notices of violation to Jonathan and Bonny Witcher, and to require they
attend a Show Cause Hearing on January 17, 2012.
*Documents discussed
1. December 21,2011 Monitoring Report Letter from Hamlyn Consulting Referencing Salvatore
Vasta
2. December 22, 2011 Letter from Certified Arborist Jason Ford to Jim Gallagher, Conservation
Agent
Brewster Conservation Commission Minutes. January 3, 2012 7
Chairman McKenna introduced William Klein, prospective Conservation Commissioner, who
attended the meeting.
At 10:00 PM, Bruce Evans moved, Hayley Winfield seconded the motion to adjourn the meeting.
Approved Unanimously.
The meeting adjourned at 10:00 PM.
Among the list of documents"for this meeting is the following:
Administrative Report of the Conservation Administrator dated January 3,2012.
Conservation Commission Approved Planting List:Cape Cod Cooperative Extension Service
(www.capecodextension.orq),list of native woody plants for coastal/inland wetland buffer zones depicting the
species,size and natural spacing of plants
Audio Recorder
Brewster Conservation Commission Minutes. January 3, 2012 8