HomeMy Public PortalAboutConservation Commission -- 2012-08-21 Minutes Brewster Conservation Commission Minutes—Meeting Under 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, August 21, 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, William Klein, Michael Tobin, Hayley
Winfield, Conservation Administrator James Gallagher, Natural Resources Director Chris Miller,
Department Assistant Carol Spade
Not Present
Associate Member 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 record is required to inform the Chairman prior to the meeting."
Public Hearings
Notices of Intent
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, Chairman Stephen McKenna signed a "Certification of Review of Hearing
Transcript"stating he thoroughly examined all evidence received at the Public Hearing of
June 19, 2012,the only previous testimonial hearing,which he did not attend. Examination
of evidence included visiting the site of the subject hearing, reviewing the minutes of the
hearing of June 19 and reviewing all evidence received prior to said hearing.
Continued Hearing)Town of Brewster proposes to amend Order of Conditions SE 9-1526
for stormwater improvements, removal of asphalt parking lot, laying crushed stone for
small parking and turning area southeast of existing parking lot-to add pavement and
drainage, etc.on the small designated parking area at the southeastern section of the lot;
on 0 Paine's Creek Road, Assessors' Map 38, Parcel 10 (Former Assessors' Map 1, Parcel
6-0).Hearing opened June 19(testimony taken),continued to July 10(no testimony)Eligible voters:Evans,
Klein,Tobin,McKenna
Summary of Applicant Testimony
Chris Miller Natural Resources Department, represented the Town of Brewster, and reviewed the
proposal as described above.
Summary of Staff Comments
Referencing his agenda comments*and the site plan*, Mr. Gallagher relayed the information
requested at the hearing of June 19, as follows:
1. Regarding concerns of Christine Odiaga, MA DEP*during her review of the application,
the revised site plan shows that the parking lot is not located in a coastal dune.
2. MA Natural Heritage and Endangered Species Program(NHESP)submitted an
electronic mail message stating that the amended items do not change its original
Brewster Conservation Commission Minutes. August 21, 2012 1
decision, which is the project will not result in a"take"of the Priority Habitat and
Estimated Habitat, 321 CMR 10.28 310 CMR.
3. The applicant submitted the requested clarification on Stormwater Management
Standards. The calculations were submitted in compliance with MA DEP from GHD
Environmental Consulting, describing this as a bio-retention area or rain garden.
Summary of Public Comments
There was no public comment.
Mr. Gallagher explained that with the exception of required continual maintenance for the bio-
retention system, special conditions for the amended order will not change from those approved
for the project in the original permit.
Bruce Evans moved, Hayley Winfield seconded the motion to issue an amendment to Order of
Conditions SE 9-1526, incorporating an additional condition mandating continued maintenance of
the bio-retention system. Approved Unanimously.
"List of documents submitted for the project and discussed at this hearing
1. May 29,2012 Request to Amend Order of Conditions SE 9-1526,GHD Inc.
2. "Site Plan,Town of Brewster...Paine's Creek Parking Lot Design,revised 8/16(sic)(8/16/12)"
3. electronic mall communication from Amy Coman,MA Natural Heritage and Endangered Species
Program(NHESP)regarding Priority Habitat and Estimated Habitat Map,321 CMR 10,310 CMR 10
and March 21,2011 letter to Robert Berson...from Thomas W.French,Assistant Director,Natural
Heritage&Division of Fisheries and Wildlife
4. GHD August 16,2012 Memorandum and accompanying items regarding Stormwater Standards#4
(Continued Hearing) Benjamin and Jennifer Gannett propose to amend Order of
Conditions SE 9-1479, a wetland permit for the proposed demolition and reconstruction of
an existing dwelling,to construct a second floor expansion over the proposed deck. Work
is proposed in a coastal dune wetland resource area, on 68 Ocean Street, Unit 7,
Assessors' Map 90, Parcel 45(Formerly Assessors' Map 7, Parcel 42).
Hearing continued from August 7,2012 Eligible voters: Evans, Klein,Tobin, McKenna
The hearing of August 7 was closed to public testimony and continued for Commission review of
draft special conditions for the amended order.
The Commission reviewed special conditions. William Klein moved, Hayley Winfield seconded
the motion to approve the conditions as drafted. Approved. Hayley Winfield abstained.
Frederick M.and Vicki P. Daniels propose to construct a living space addition and porch,
and expand a deck to an existing single family dwelling,and relocate a shed -within 57
feet of an inland wetland, on 67 Swamp Road, Assessors' Map 48, Parcel 70 (Former
Assessors' Map 24, Parcel 6-3 ).
Summary of Applicant Testimony
Lynne Hamlyn, Hamlyn Consultants, represented Frederick and Vicki Daniels, who attended the
hearing. She explained the project, wetland delineations and proposed mitigation, as contained
in the*narrative submitted with the*Notice of Intent, adding that the project does not occur within
Priority or Estimated Habitats under the MA Endangered Species Act(MESA) or MA Wetlands
Protection Act(WPA) regarding the existence of rare plant and wildlife habitat of rare wetlands
wildlife.
Summary of Staff/Conservation Commission Comments
Comments
Mr. Gallagher and the Commission believed it important the existing large oak next to the shed
proposed for relocation outside of the 50 foot buffer zone not be compromised during the
process, that the proposed material planted as mitigation in the location of the removed shed is
comprised of appropriate native plantings*or seed mixture, and that an appropriate number of
native shrubs* be installed as mitigation along the edge of existing lawn
Brewster Conservation Commission Minutes. August 21, 2012 2
1
Summary of Public Comments
' There was no public comment.
Bruce Evans moved, Hayley Winfield seconded the motion to close the hearing to testimony and
continue to September 5, to await a file number from MA Department of Environmental Protection
(DEP), showing the application under the State is complete, and for Conservation staff to draft
special conditions under the BWP By-law for the project, as discussed above. Approved
Unanimously.
*List of documents submitted for the project and discussed at this hearing
1. Notice of Intent for Frederick M.and Vicki P. Daniels
1 2. "Site Plan,67 Swamp Road...Prepared for Frederick Daniels,Down Cape Engineering,7/25/12"
3. *Conservation Commission Approved Planting List:Cape Cod Cooperative Extension Service
(www.capecodextenslon.org),list of native woody plants for inland wetland buffer zones depicting
4 the species,size and natural spacing of plants
Thomas and Carol Edmondson, Peter Wallis, Paul and Annette Roberts and the Town of
Brewster propose to reconstruct a rock revetment on a coastal dune and coastal beach,
on 41,47, 51 Captain Dunbar Road and 0 Ellis Landing, current Assessors' Map 91,
Parcels 39,40,41 and 42 (Former Assessors' Map 7, Parcels 14, 15, 16 and 16-1).
i
Summary of Applicant Testimony
Jason R. Norton, Coastal Engineering, Co., Inc., Project Manager, Marine Division, Glenn Wood,
`'- Esq., Rubin and Rudman, and Lee Weischar, Ph D, Woods Hole Group, represented the private
property owner/applicants. Natural Resources Director Chris Miller represented the town for the
j portion of the project on easterly adjacent Ellis Town Landing. Property owners Thomas and
Carol Edmondson and Paul and Annette Roberts attended.
1 Glenn Wood
Mr. Wood introduced the project, describing what he believed to be erosion threatening the three
private beachfront properties due to the inadequate position of the present revetment structure.
He referenced the proponents' (Abbreviated Notice of Resource Area Delineation)filing in 2011.
The Brewster Conservation Commission officially determined the resource area delineation on
plans for the parcels, designating the revetment as a coastal bank, was inaccurate; in a
superseding appeal, MA DEP upheld the decision (Order of Resource Area Delineation) of the
Conservation Commission.
He stated in this subsequent Notice of Intent, the applicants approached the Brewster town
officials, who agreed to be co-applicants for the revetment project request in an attempt to rectify
environmental problems at the easterly abutting Ellis Town Landing. It was his understanding
that the entire project has the full, prior support of the Brewster Board of Selectmen.
Mr.Wood stressed that the Conservation Commission in past years granted over 1,200
continuous feet of coastal engineering structures on properties southwest of the locus. He
believed some of those revetments are built on coastal dunes, but were determined by the
Commission, using outdated criteria, as coastal banks. The proponents desire to protect their
properties with a rock revetment meeting the protective standards of those properties.
He stated that the proposal before the Commission will not adversely alter the dune resource
area because the property owners propose to add sand to the beach annually to replace the sand
the structure would impede. He described the proposal as an"in kind" reconstruction, no further
landward or seaward than presently exists.
During the course of discussion, Mr. Wood assumed some of the Commissioners had not visited
the site.
Brewster Conservation Commission Minutes. August 21, 2012 3
S
1
ii
4
A
Jason Norton
Displaying the proposed *site plan, Mr. Norton cited the resource areas in the project area;
coastal beach, dune and land subject to coastal storm flowage, and the background and
description of the revetment reconstruction and beach grass mitigation project, with annual 80
cubic yards of sacrificial sand nourishment, as contained on the`site plan,*and in the *narrative
and *variance statement portions of the Notice of Intent.
) He stated the applicants in this proposal desire to reconstruct the revetment to meet the
standards of the US Army Corp of Engineers and American Society of Civil Engineers, as granted
by the Conservation Commission for the above described nearby property owners.
1
Mr. Norton referenced the statement of the Conservation Commission's expert consultant for past
permitting,*due to the existing rip-rap, the coastal dune on the properties has lost some of its
f.
natural beneficial function. Mr. Norton interpreted this as stating that the dune does not at all
function or meet the performance standards of a coastal dune, and therefore is not a coastal
dune.
t
Summary of Conservation Commission Chairman
Chairman McKenna stated he is not in favor of reviewing the town portion of this project at this
time.
Mr. McKenna distributed photos to the Commission depicting the subject area, dune/beach and
large stones, shown over the last twenty or more years, and a*review of the subject property and
revetment by coastal processes consultant Jim O'Connell, previously hired by the Conservation
? Commission.
Chairman McKenna explained to the new Commissioners that as shown in the photos, some
large stones have existed on the subject beachfront area for twenty years or more. Due to the
presence of these stones, the Brewster Conservation Commission allowed the stones to be re-
configured to form a coastal revetment via Orders of Conditions(in the 1990s and) in 2005
However, he stressed that because of the*state wetland law disallowing revetments on
coastal dunes, in these permitting processes, MA DEP did not allow the property owners
1
to add new stones to the beach or dune.
Mr. McKenna continued, stating that after a very long permitting process under the ACT and the
*BWP By-law, the Conservation Commission issued Orders of Condition allowing the existing
stones to be re-aligned. Despite this, he believed more boulders were added to the external
structure.
He went on to explain that during these permitting processes the Conservation Commission and
_
p the applicants fully understood the redistributed existing stones would require continual
maintenance, because they would always fail on the unconsolidated sand. The Commission
sincerely attempted to help the property owners work with these constraints to create a low
ti profile, minor level of protection, including installation of toe stones in the sand beneath the
structure. Even so, the property owners have used various strategies to reach beyond what is
allowed under wetland laws.
Mr. McKenna added that with the project before the Commission at this time, Mr. Wood and Mr.
1 Norton assert:
1 1. The project will have no adverse effects on wetland interests. Mr. McKenna stressed his
'x experience has shown there has never been a coastal engineering structure having no
, adverse impacts on wetland resource areas.
2. As to the proposal to add sand annually as a mitigation measure, there is no guarantee of
an option for the present or future landowners 10 or 50 years from now, to provide sand
to the beach. However, the requested engineered structure would be permanent.
Brewster Conservation Commission Minutes. August 21, 2012 4
1
3. The applicants have presented no alternative under the BWP By-law variance request to
place the dwellings on pilings and/or move them landward.
Additionally, as opposed to a stone facing or engineered revetment on a consolidated landform,
the proposal before the Commission is a free standing, three-dimensional engineered groin on
(parallel to) a coastal dune, a complete enlargement of the current structure, with much more
direct impact on coastal resource areas. It is legally not permittable; and equates to a backwards
move in environmental protection.
As to the existing revetment, two years ago the bay beaches in Brewster endured the most
damage he has ever observed, during two major storms. The revetment allowed sand to move
and protect the dwellings on the subject property then, and in other storms destructive to
Brewster's bay environment.
Finally, the project is not designed to address the effects of predicted sea level rise.
As to Mr. Wood's reference to the Commission's past resource area delineations and permitted
revetments, Chairman McKenna responded the purpose of this hearing is to reach a decision on
the application at hand.
Lee Weischar
Dr. Weischar stressed the importance of the fact that the applicant proposes to nourish the
resource area annually with ten times the amount of sand currently applied.
In response to Mr. McKenna's comments on the permanence of a stone revetment, he reminded
the Conservation Commission it has the legal authority to order removal of any structure built in
;ry7
violation of its Order of Conditions.
Summary of Conservation Commission Comments
Mr. McKenna stated the Conservation Commission must determine if the project now before the
Commission will allow the coastal dune natural movement, and allow the ocean waves to remove
sand from the dune and provide wildlife habitat, in the *wetland interests of storm damage and
flood control prevention, and wildlife habitat protection.
Chairman McKenna polled the Commissioners as to their opinions on the proposed project.
Mr. Evans believed the MA DEP would request the owners explore moving the dwellings
landward of the coastal resource areas. As to the proposed coastal protection, he believed the
proponent should be allowed some type of appropriate replacement for the failed "filter fabric"
erosion control measure allowed in a previous Order of Conditions.
However, he supported Mr. McKenna's expertise in coastal process, that the proposal as
presented would adversely affect wetland interests.
Ms. Winfield asked Mr. Norton if the company he represents had ever proposed an engineering
structure on a coastal dune before a Conservation Commission on Cape Cod. Mr. Norton
responded he believed it has not.
She then stated she believed the proposal is a huge impediment to the coastal processes and
would adversely affect coastal wetland interests. She was not in favor of the proposed project.
Mr. Klein agreed with the comments expressed by Ms. Winfield. He was not in favor of the
proposed project.
Mr. Tobin agreed with the comments expressed by Ms. Winfield and Mr. Klein.
He was not in favor of the proposed project.
Brewster Conservation Commission Minutes. August 21, 2012 5
r
1
Summary of Staff Comments
Mr. Gallagher clarified for the record that contrary to Mr. Wood's understanding, all of the
Commissioners have previously visited the subject site.
Mr. Miller and Mr. Gallagher stressed also that the Board of Selectmen consented that the town
be co-applicants for the Notice of Intent, as a portion of the existing revetment extends onto the
Town Ellis Landing, but contrary to Mr. Wood's assertion, did not"previously approve"the
proposed Notice of Intent reconstruction project.
Summary of Public Comments
There were no comments from the public.
Vote of the Conservation Commission
4 Following discussion, the Commission consensually agreed not to hire a special coastal
consultant to represent the Conservation Commission to review the project at this time. The
Commission also consensually agreed not to act on the town portion of the proposal at this time.
Hayley Winfield moved, Bruce Evans seconded the motion to continue the hearing to September
18. In the interim, the Commissioners and the Conservation Administrator will visit the site
collectively, as a legally posted site visit, at a time all members and staff are available.
Additionally, the Commission will study Mr. O'Connell's August 7, 2011 review of the property.
Continuance to September 18, 2012 was Approved Unanimously.
*List of documents submitted for the project and discussed at this hearing
1. Notice of Intent for Edmondson,Wallis,Roberts
a."Site Plan,Proposed Shorefront Protection...Captain Dunbar Road,6/6/12"
b.*Performance Standards Narrative
c.Request for Variance"
2. March 9,2004 letter from Jim O'Connell,Coastal Processes Specialist,to Jane Harris Brewster
Conservation Commission
3. Photos,subject area,existing rocks and rebuilt armoring,1998—2005
4. August 7,2011 ANRAD Review,41,47,51 Captain Dunbar Road,Jim O'Connell,Coastal Advisory
Services
5. 310 CMR: MA DEP Wetlands Protection Act Regulations 10.28(3),(4)coastal dune
6. Brewster Wetland Protection By-law 2.031—5 coastal dune,Part V 5.01 Variances
Any Topics not reasonably anticipated by the Conservation Commission Chairman
1. Town of Brewster Order of Conditions SE 9-1528, Construction of wooden
stairway over a coastal bank and coastal dune,0 Breakwater Road,4/55-1
Mr. Miller requested the Commission determine whether construction of a 60 x 60"
handicapped assessable platform addition to the above referenced project would require a
new wetland filing, an amendment to the existing Order of Conditions, or be considered a
minor modification to the approved plan.
The Commission consensually agreed the change would constitute a minor
modification to the Order of Conditions. This decision is contingent on submittal of a
revised plan for the file record, reflecting the change.
Citizens' Forum
There was no one present wishing to speak at this time.
Requests for Administrative Review
1. Brian Saltzman, 170 The Channel Way, 58/69(Formerly 4/27-3), gravel driveway
removal, grass vegetation and fencing existing driveway
Brewster Conservation Commission Minutes. August 21, 2012 6
The Conservation Administrator believed the above referenced project meets provisions
for an activity under the mechanism of Administrative Review and granted the
administrative approval. Following review and discussion, Hayley Winfield moved,
' Michael Tobin seconded the motion to ratify the Administrative Review approval.
Approved Unanimously.
2. Elizabeth Manach,997 Stony Brook Road, 36/30 (Formerly 22/62) pumping, adding
clean fill to existing cesspool within 50 feet of wetland
4j 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, Hayley Winfield moved, Bruce
Evans seconded the motion to ratify the Administrative Review approval. Approved.
j Michael Tobin abstained.
IShow Cause Hearings/Violations if Necessary
i 1. (Continued Hearing)Thomas Schmidt, 18 The Channel, 58/76 (Formerly 17/12)
Following discussion on the property owner's initial lack of response to the
enforcement order sent by certified, return receipt mail followed by contact with the
Conservation Administrator, Bruce Evans moved, Michael Tobin seconded the
1 motion to continue the public hearing to September 18, 2 012. The motion was
Approved Unanimously.
a Review and Approval of Minutes
1. August 7, 2012
Postponed.
Discussions/Report of the Conservation Administrator
Cobbs Pond Condominium Association Pruning Projects SE 9-1466(bay area)and SE 9-
`' 1467,(pond area)Wauquanesit Drive,57/4,5(Formerly 17/1)
ii Request for tree removal
-, Scott Anthony, Vice President, Ponderosa Property Management, Inc. attended on behalf of
owners of the above property. He requested primarily that his clients be allowed to remove an
oak tree located at the top of a coastal bank. As proactive mitigation they have planted five
native trees elsewhere on the property.
Discussion centered on the oak tree, which, most likely as the result of improper pruning, has a
double-leader trunk. The Commission consensually agreed the Conservation Administrator will
meet on site with the proponent to allow him to remove one of the leaders; retaining the leader
3 most likely to survive the radical cutting.
I
Unauthorized tree pruning
Mr. Gallagher informed the Commission of unauthorized pruning on an oak tree in front of one of
the condominium units, in the buffer zone of the coastal bank. The Commission consensually
agreed to issue one($300.00) Notice of Violation under the BWP By-law, to the Cobbs Pond
A Condominium Association, the property owner of record; and to require the irreparably damaged
oak tree be removed and replaced with three (3)five gallon (5 gal.)Arrowwood Viburnum
(viburnum dentatum) shrubs.
*List of documents submitted and discussed
1. Cobbs Pond Photos showing 5 trees planted
4 2. Cobbs Pond Proposed tree to be removed
Reference: Town of Brewster Zoning By-law Article VII Nonconforming Uses, Structures
) and Lots§179-26 D. Lots lacking street frontage Brewster Zoning Board of Appeals
'x application#12-08
The Commission discussed the desire of a prospective property owner to construct a single
family dwelling at the above captioned location, which is surrounded by the town owned
Brewster Conservation Commission Minutes. August 21, 2012 7
1
Punkhorn Parklands, (primarily) under the care, custody and control of the Brewster Conservation
Commission.
Members briefly reviewed letters(captioned below)from an attorney representing the intended
buyer and a response from Brewster Town Counsel regarding issues of legal frontage, etc.
The Conservation Administrator stressed that the Conservation Commission has, in the past,
refused to allow roads within lands under Commission care custody and control to be widened or
improved, or to allow utility instillation to make them accessible for building.
In answer to questions from Administrator Gallagher, the Commission consensually determined
the following:
As discussed in general at its meeting of April 17, 2012, (and in a letter to the Brewster Planning
Board Chairman), granting a building permit in this location would disrupt the town's large
watershed area and fragment the plant and wildlife habitat the town has protected since
Brewster's citizens voted to acquire this 900+ acres of contiguous land and watershed.
1. The subject lot is surrounded on all sides by conservation land protected by the Town of
Brewster and Brewster Conservation Trust. Developing the lot would greatly alter the
character of these lands.
2. The Commission will not allow the ancient cartway to be widened or improved, or for
utility installation in this case.
3. The Conservation Commission questioned what rights, if any, the applicant would have to
"improve" and widen these tracks, and to obtain an opinion from Brewster Town Counsel
on the proposed changes.
Bruce Evans moved, Hayley Winfield seconded the motion to write a letter to the Board of
Appeals, stating all of the above. Approved Unanimously.
*List of documents submitted and discussed
1. June 14,2012 letter to Brewster Building Commissioner Victor Staley from Benjamin E.Zehnder LLC
2. August 14,2012 letter from Town Counsel Sarah A.Turano-Fiores to Susan M.Leven,Brewster Town
1 Planner
3. Minutes of April 17,2012
Bruce Evans moved, Hayley Winfield seconded the motion to adjourn the meeting.
The meeting adjourned at 9:35 PM.
Carol Spade
A
Among the list of documents*for this meeting Is the following:
Administrative Report of the Conservation Administrator dated August 21,2012
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 Recording Video Recording
1
1
Brewster Conservation Commission Minutes. August 21, 2012 8