HomeMy Public PortalAboutConservation Commission -- 2012-05-15 Minutes Brewster Conservation Commission Minutes—Meeting Jnder Massachusetts General Law
Ch. 131,§40,Wetlands Protection Act(ACT),310 CMR 10.00 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)
and Code of the Town of Brewster
Wetland Regulations 1.01 —8.01
Call to Order -
Chairman Stephen McKenna called to order the Tuesday, May 15, 2012 meeting of the Brewster
Conservation Commission at 7:02 PM at the Brewster Town Offices, 2198 Main Street, Brewster,
MA.
Present
Chairman Stephen McKenna, Commissioners Jeanne Boehm, Bruce Evans, William Klein, Ken
Rollins, Michael Tobin, Conservation Administrator James Gallagher, Natural Resources Director
Chris Miller, Department Assistant Carol Spade
Not Present
Commissioner Hayley Winfield
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 record is required to inform the Chairman
prior to the meeting."
***Note:Due to a technical error,the hearing was not video recorded.
Public Hearings
Requests for Determination of Applicability
National Grid requests determinations of Conservation Commission jurisdiction over
whether the area and work within the buffer zone of resource areas -gas main extension
within road right-of-way with service connection to house#27 Captain Dunbar Road-is
subject to the Wetlands Protection ACT and the Brewster Wetlands Protection By-law;
Captain Dunbar Road,Assessors' Map 7, Parcels,Various.
Summary of Applicant Testimony
Representative, Brad Malo, Coastal Engineering, Inc. described the project briefly. Displaying the
{ proposed plan*and photos*of the natural sand and gravel roadway layout depicting the gas line
area in red, he explained the existing road will be replaced with like materials. Mr. Malo
referenced the Conservation Administrator's recommendation*that the resource area shown on
the submitted plan labeled 100 foot buffer zone from "TCB" (coastal bank) not be confirmed by
the Conservation Commission. He confirmed for the record that the applicant does not request
the Conservation Commission confirm resource area accuracy.
Summary of Conservation Commission Comments
Discussion centered on time of work commencement.
Summary of Staff Comments
Mr. Gallagher relayed an abutter expressed concern to him that the road be graded, and
requested Mr. Malo explain the means (equipment and composition of materials) for returning the
road to its original natural sand and gravel condition. Mr. Malo responded that the road will be
compacted with machinery appropriate to return it to its prior natural state.
Brewster Conservation Commission Minutes May 15, 2012 1
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Other staff expressed the desire of the property owner on 27 Captain Dunbar Road that the work
be completed as quickly as possible.
Summary of Public Comments
There were no public comments.
Ken Rollins moved, Jeanne Boehm seconded the motion to issue determinations as follows:
Positive Determination
2b.The boundaries of resource areas listed below are not confirmed by this Determination, regardless
of whether such boundaries are contained on the plans attached to the Determination or to the Request
for Determination
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.
Approved Unanimously.
*List of documents submitted for the project and discussed at this hearing
1. Request for Determination...for National Grid
2. "Site Plan, National Grid Sketch Plan Showing Proposed Gas Main Extension&Service Connection
Capt.Dunbar Rd.to#127 Captain Dunbar Road,4/27/12,date
3. (3)photos of Captain Dunbar Rd.layout(submitted at hearing of 5/15/12).
Notices of Intent
(Continued Hearing)Anna C. Lombroso proposes to renovate an existing dwelling;
constructing a new elevated foundation and reducing the original dwelling footprint, and
install a new septic system,within 50 feet of a bordering vegetated wetland adjacent to
Cobbs Pond,on 93 The Channel Way, Assessors' Map 4, Parcel 49.
Eligible voters:Evans,Klein,Tobin,Rollins Hearing opened March 7,2012,testimony taken,March 20,no
testimony,April 3,testimony taken,April 17,testimony taken,May 1,2012 no testimony
Summary of Applicant Testimony
David LaJoie, RS, Felco, Inc. represented the applicant, briefly describing site plan*changes the
Commission requested at the last continued hearing. The revised plan showed a small deck
reduction in the 50 foot buffer zone, location of all trees and septic system testing areas.
Summary of Conservation Commission Comments
As requested at the hearing of April 17, Commissioner Rollins repeated his desire for an
architectural rending of the dwelling rear elevation to reflect the current proposal on the plan. Mr.
LaJoie submitted this*to Mr. Rollins.
Also as discussed on April 17, Mr. Rollins believed the following items must be conditioned into
the Order of Conditions:
1. Deck shall be designed open with no roof,to prevent runoff.
2. Additional mitigation (6 to 8 approved shrubs*) shall be planted northwest of the building.
3. The existing shed shall be removed from the wetland and buffer zone areas.
And, as recommended by the Conservation Administrator,
4. It may be necessary to construct protective wells around existing trees located near the
proposed fill areas, to prevent adverse effects of this activity.
Summary of Public Comments
Citizen Paul Gasek requested clarification on the work area with regard to the 50 foot buffer zone,
which the Commission answered to his satisfaction.
Brewster Conservation Commission Minuti:s May 15, 2012 2
Ken Rollins moved, Bruce Evans seconded the motion to close the hearing to testimony and
continue to June 5, 2012, to allow staff to draft special conditions for the project under the BWP
By-law, to include all of the items listed above.
Approved. Jeanne Boehm and Stephen McKenna Abstained.
*List of documents*submitted for the project and discussed at this hearing
1. Notice of Intent...for Anna C.Lombroso
2. "Site and Sewage Plan,98 The Channel...Anna.C.Lombroso,revised 4/28/12."
3. Kurzhaus Designs,Inc.Private Residence 93 The Channel Way...Sheet A 1-8 Architectural drawing of
deck dated April 25,2012(submitted for file on May 23,2012)
(Continued Hearing) Peter and Theresa lannone propose to install and construct an in-
ground timber stairway,a platform and kayak/canoe rack along a path from the existing
dwelling to the pond access area, and install a seasonal dock, in and within 50 and 100
feet of a bordering vegetated wetland, on 397 Crowell's Bog Road, Assessors' Map 41,
Parcel 5-2.
Eligible voters:Evans,Klein,Tobin,Rollins Hearing opened March 7,2012,testimony taken,March 20,no
testimony,April 3,testimony taken,April 17,testimony taken,May 1,2012 no testimony
David LaJoie, RS, Felco, Inc. represented the applicant, briefly describing site plan*changes
from the last continued hearing, including in-ground steps in the 100 to 50-foot buffer zone.
Summary of Conservation Commission Comments
Following discussion, Mr. LaJoie stated he will submit dimension detail on the kayak rack for the
project file.
The Commission consensually agreed the following condition shall be included in the special
conditions under the BWP By-law:
The applicant shall plant a total of twenty approved shrubs*; ten on each side of the in-
ground steps.
Mr. LaJoie re-dated the plan revision from 4/6/12 to 5/15/12*at this time and included the
number 20 (shrubs)for Construction Note#4
Ken Rollins moved, Bruce Evans seconded the motion to close the hearing to testimony and
continue to June 5, 2012, to allow the applicant to submit the above described information and for
staff to draft special conditions for the project under the BWP By-law, to include the item listed
above. Approved. Jeanne Boehm and Stephen McKenna Abstained.
*List of documents*submitted for the project and discussed at this hearing
1. Notice of Intent for Peter and Theresa lannone
2. "Site Plan,397 Crowell's Bog Road,Peter and Theresa lannone 5/15/12"
Joseph and Donna Potts propose to construct a living space addition, deck and attached
garage to an existing dwelling,and expand an existing gravel driveway within the buffer
zone to a bordering vegetated wetland; the deck and associated work is proposed to be
30+-feet from the bordering vegetated wetland, on 155 Lower Road, Assessors' Map 19,
Parcel 76.
Summary of Applicant Testimony
John O'Reilly, PE, PLS, 4. M. O'Reilly, Inc. described the proposed project as stated above and
the method of delineating the wetland. He added he will be seeking a continuance to address the
Conservation Administrator's agenda comments*with regard to the floodplain issue (bordering
land subject to flooding or land subject to coastal storm flowage)on a revised narrative.
Summary of Staff Comments
Mr. Gallagher explained for the Commission his field review of the edge of the wetland line. He
stated with the exception of the area next to wetland flag#11 as shown on the plan in which the
vegetation was too thick to review, essentially agreed with the applicant's delineation.
He believed the site plan should be revised to show the soil testing area.
Brewster Conservation Commission Minutes May 15, 2012 3
Summary of Conservation Commission Comments
As recommended by the Conservation Administrator, the Commission consensually agreed the
wetland delineation is sufficiently correct for the Commission to review the proposed project.
Commissioners Jean Boehm, Ken Rollins and Stephen McKenna believed the site plan must be
revised showing the following:
1. Proposed deck expanding no further into the 50 foot buffer zone than existing.
2. Removal of the existing shed from the buffer zone.
3. Reduced lawn in the 50 foot buffer zone, replaced w ith appropriate* native shrubs.
4. Any proposed shower designed to capture runoff frcm flowing into the wetland.
Summary of Public Comments
Abutter Ed Daley attended, affirming his support for the project.
Jeanne Boehm moved Ken Rollins seconded the motion to continue the hearing to June 5, to
allow the proponent to address all of the items discussed at this hearing. Continuance to June 5,
2012 Approved Unanimously.
*List of documents*submitted for the project and discussed at this hearing
1. Notice of Intent for Joseph and Donna Potts
2. Site Plan,J.M.O'Reilly&Associates,Inc.Joseph&Donna Potts...4/23/12"
Linda Corcoran proposes to construct a timber deck, and manage vegetation (vista prune)
on and within 50 feet of a coastal bank; 84 Grandfather's Lane, Assessors' Map 6, Parcels
19 and 999.
The project proponent submitted a written request to continue the above referenced hearing to
June 5. Bruce Evans moved, William Klein seconded the motion to continue the hearing to June
5, 2012. Motion Approved Unanimously.
Chris Miller, Brewster Natural Resources Director for the Town of Brewster, propose to re-
place a storm damaged beach access stairway with a new elevated stairway on a coastal
dune, on the town owned Spruce Hill Conservation Area at 3171 Main Street, Assessors'
Map 8, Parcel 9.
Summary of Applicant Testimony
Chris Miller attended. Hebriefly described the proposed reconstruction of a coastal stairway,
which will be used by the public for passive recreational purposes. Mr. Miller explained the
existing coastal stairway fell victim to coastal erosion and has been unusable for the last few
years. As proposed, the new stairway should allow the graceful retreat of the coastal dune as
erosion continues. He explained it will differ slightly from they existing stairway; raised slightly to
allow more room for the bank to erode and eliminating the existing viewing platform.
Summary of Conservation Commission Comments
Chairman McKenna suggested the stairway or lower portion be constructed as seasonally
removable for longer survivability.
Mr. Miller stated it is a possible option; however the public use the stairway year-round, and if it is
wholly or partially removed, the dune may further erode.
The Commission confirmed for the record that the proposed ACQ treated wood is the appropriate
building material for this coastal marine environment.
Summary of Public Comments
There was no member of the public wishing to speak at this time.
Bruce Evans moved, Jeanne Boehm seconded the motion to continue the hearing to June 5, to
allow staff to draft special conditions for the project. Approved Unanimously.
*List of documents*submitted for the project and discussed at this he wring
1. Notice of Intent for Town of Brewster Natural Resources.... ipruce Hill Conservation Area
Brewster Conservation Commission Minutes May 15, 2012 4
2. "Site Plan,Natural Res.Department Proposed Stairway,Spruce Hill...J.M.O'Reilly&Associates,Inc.
6/16/11
Citizens' Forum
Peter Johnson, 909 Stony Brook Road, expressed his thanks to the Brewster Conservation
Commission for the exemplary role it has played in protecting Brewster's wetlands and open
space.
He explained the Brewster Comprehensive Water Planning Committee (CWPC), recently hosted
a public forum. Horsley and Whitten, Inc., hired consultant for the CWPC presented a report on
Brewster's work to date on water resource protection. The report commended the Brewster
Conservation Commission for its long history of expert and conscientious decisions under the MA
ACT and Brewster Wetlands Protection By-law.
Mr. Johnson added the Conservation Commission collaborates well with the Brewster
Conservation Trust, Open Space Committee and Community Preservation Committee; on playing
a significant role in protecting and improving the open space and water quality in the town of
Brewster
Discussions/Report of the Conservation Administrator
Town of Brewster Spruce Hill Conservation Area, 3171 Main Street, Assessors' Map 8,
Parcel 9 tree removal
For the benefit of the newly appointed Conservation Commissioners, Mr. Gallagher explained that
the town owned property known as the Spruce Hill Conservation Area was acquired through the
Town Meeting process in 1985. The Town authorized the Conservation Commission its care,
custody and control of the land. The only exception to this under the meeting article is a provision
authorizing the Board of Selectmen to dispose of the existing buildings..., and a subsequent
lease of the existing buildings to the Brewster Historical Society (a private entity)for use as an
historic museum
Very recently, the Department of Public Works removed trees on the property without prior
notification to the Conservation Commission.
Representative: Robert Bersin, Superintendant, Brewster Department of Public Works
(DPW)
Mr. Bersin stated that the Brewster Historical Society and some town officials and citizens
requested the DPW cut down the trees. He explained the Town voted to fund the project at Town
Meeting* He added it was his understanding he notified all the appropriate town entities before
the work was to occur; the Brewster Town Administrator, Board of Selectmen and Historic District
Committee. However, he was unaware the property is under the control of the Brewster
Conservation Commission, and did not notify the Conservation Commission. It was his opinion
that some of the trees removed were on the westerly abutting Brewster Sea Camps property,
which gave its prior permission.
Mr. Gallagher informed Mr. Bersin that the Brewster Historical Society in 2006, proposed to the
Board of Selectmen and other boards, as part of a larger project, a wide, circular driveway on the
property*. This plan was withdrawn from consideration by the town. He wished to make clear that
this plan shall not be used for the driveway repair.
Ms. Boehm noted that this is the seconded instance in which the Brewster Historical Society
proposed a project to Town boards and departments other than the Conservation Commission.
Carol Spade, speaking as a citizen of Brewster, explained she reported the removal of seventeen
trees to the Conservation Administrator. She believed all were on the Spruce Hill property, was
concerned over the loss of wildlife habitat on protected land and that the trees were cut down in
preparation for a driveway wider than presently exists.
Brewster Conservation Commission Minutes May 15, 2012 5
She added that the Commonwealth of Massachusetts provided State Self-Help funds for the
purchase through the Executive Office of Environmental Affairs, Division of Conservation
Services*This program agreement requires prior notice from the Conservation Commission and
ultimate state approval for significant alterations to the land.
The Commission believed the driveway is clearly in need of maintenance, and requested Mr.
Bersin present a narrative to the Conservation Commission iescribing the entire proposed project
in detail; driveway repair, with no expansion in width or length beyond the existing paved
dimensions*, and that the parking lots not be paved.
North of the parking lot, the large tree stump at the entrance to the cart path leading to the beach
may be removed to allow for reconstruction of a secure gate. No other vegetation on the property
shall be removed.
The Commission consensually agreed to send a letter to the Brewster Historical Society, stating
the Brewster Conservation Commission expects that the Historical Society communicate with the
Conservation Commission in the future relative to any proposed activity at the Spruce Hill
Conservation Area outside of the existing building, and requests the Historical Society attend
Conservation Commission meetings for all questions regarding this important open space area
Copies of the letter will be sent to the Town Administrator, the Board of Selectmen and Mr.
Bersin.
*List of documents*discussed and/or submitted
1. Department of Public Works Article at the November 7,2011 Special Town Meeting ...
2. Town of Brewster Special Town Meeting Warrant Article 26,August 26,1985
3. Commonwealth of MA...EOEA Division of Conservation Services Self-help Program Agreement,
December 2,1985 Castiglione Property
4. Existing Conditions 3171 Spruce Hill Museum, Brewster,MA J M.O'Reilly&Associates,PE,Surveying
Services 5/16/08
5. Brewster Historical Society...Site Plan Showing Proposed Improvements...5/16/8(withdrawn plan)
Violation
1. Review of Mitigation Narrative-Jonathan and Bonny Whitcher, 83 Dune Road,
Assessors' Map 6, Parcel 18, Unauthorized pruning of 21 trees within 100 feet of
the top of a coastal bank See minutes* of January 3, February 7, March 20, 2012
John Bustin, Signature Landscape, attended, representing current property owners,
Jonathan and Bonny Whitcher. He stated he believes the trees affected by the (second)
violation are in good health.
Mitigation Report
The Commission reviewed the owners' mitigation report. Chairman McKenna remarked
that the proposed low shrub mitigation planting plan is a departure from the
Commission's expectations of trees forming a canopy.
The Commission consensually agreed on the following:
1. Proposed switch grass shall be replaced with bayberry (Myrica pensylvanica) and/or
beach plum (Prunus maritime).
2. Proposed Rosa rugosa may remain.
3. Plantings shall be installed within the next two weeks.
4. These amendments to the mitigation report shall be submitted to the Conservation
Commission in writing for the file.
Mr. Gallagher reminded Mr. Bustin that the mitigation plan for Order of Conditions SE 9-
1470 issued as a requirement for the initial violation. remains. Under that order, plantings
shall survive until the end of November 2012, at whi:t time the owner shall submit a final
annual report. '
Brewster Conservation Commission Minutes May 15, 2012 6
•
In answer to Mr. Bustin's questions, Mr. Gallagher clarified again to him that although
both the former and current property owners violated the MA ACT and BWP By-law, the
lawful owners of the property are legally responsible for all mitigation.
Mr. Gallagher explained he and the owners are scheduled to attend a hearing before the
Orleans District Clerk Magistrate on the Assessed $5,300.00 Notices of Violation,
The Commission informed Mr. Buston that(along with restoration of the jurisdictional
areas) it will accept a donation from the owners to the Brewster Conservation Fund, the
amount of$2,100.00 in lieu of the$5,300.00 Notices of Violation.
Mr. Bustin responded he will inform the owners of this and respond to the Commission's
decision by Monday, May 21.
*Documents discussed
1. Mitigation Narrative,(undated)Reference:83 Dune Road Proposed mitigation plan in response to
enforcement order dated February 14,2012
2. January 6,January 19,2012 Enforcement Orders to Jonathan and Bonny Whitcher,
Attachments...letters
Amended and Ratified February 7,2012
3. Enforcement Orders to Salvatore and Deborah Vasta,2009-2010(see files for complete information)
4. Salvatore an Deborah Vasta Order of Conditions(and Amended Order of Conditions) SE 9-1470
5. Town of Brewster Notices of Violation of Town By-law or Regulation
Violation Complaint
1. Property on 1993 Main Street, 17/24,application of asphalt within 100 feet of inland
wetland
Mr. Gallagher stated he received reports of applied asphalt to the parking lot at the above
captioned location, within 100 feet of an inland wetland. On site investigation, he was
informed the National Grid Energy Company subcontractors used the parking lot as a storage
area for recycled asphalt as part of its recent Route 6A gas line project. Upon completion of
the project, the workers spread the fill on the parking lot. The parking lot remains pervious
and neither the asphalt nor storm drainage has entered the wetland. He presented photo
documentation of the parking lot in the Conservation Administrator Report*.
The Commission consensually agreed that no violation of the MA ACT or WP By-law
occurred.
Requests for Extension to Order of Condition
1. Lucier, Paul Order of Conditions SE 9-1439 40 Skaket Way, 10/22 2nd extension
Following the recommendation of the Conservation Administrator, Jeanne Boehm moved,
Bruce Evans seconded the motion to approve the above referenced request for an
extension under the BWP By-law for one year Approved Unanimously.
Request for Certificates of Compliance
1. Francis Olivieri, Order of Conditions SE 9-107, 1:36 Seaway Road, 15/45,septic
upgrade
Following the recommendation of the Conservation Administrator that the site is now
stabilized with grass*and he believes the project complies with the Order of Conditions,
Jeanne Boehm moved, Ken Rollins seconded the motion to approve the above
referenced Certificate of Compliance. Approved Unanimously.
Review and Approval of Minutes
1. May 1,2012
Following review, William Klein moved, Michael Tobin seconded the motion to approve
the above referenced minutes as written. Approved Unanimously.
Review of Correspondences
Brewster Conservation Commission Minutes May 15, 2012 7
1. Tuesday, May 1,2012 Letter from Rita De Marco, 3750 Main Street, 29/10; request
to remove glass and other debris from wetland and aerate.
Following the recommendation of the Conservation Administrator and brief discussion,
the Commission consensually agreed the applicant hall file a Request for Determination
of Applicability to.remove the debris from the wetlan J.
Any Topics not reasonably anticipated by the Conservai:ion Commission Chairman
Natural Resources Director
Cape Cod Museum of Natural History,Wing Island Boardwalk Main Street, 1/5
The Commission consensually agreed boardwalk sections at the Wing Island walking trail may be
replaced. The Natural Resources Department shall file an Administrative Review.
Breakwater Landing, SE 9-1528,4/55-1, Stairs
The proposed stairway on a coastal dune will be constructed by an Eagle Scout to fulfill merit
obligations.
Bruce Evans moved, Jeanne Boehm seconded the motion to adjourn the meeting.
The meeting adjourned at 9:00 PM.
Carol Spade
Among the list of documents*for this meeting is the following:
Administrative Report of the Conservation Administrator dated May 15,2012
Conservation Commission Approved Planting List:Cape Cod Cooperative Extension Service
(www.capecodextension.org),list of native woody plants for coastal/inland wetland buffer zones depicting the species,
size and natural spacing of plants
Meeting Audio and Video Recordings
Brewster Conservation Commission Minutes May 15, 2012 8