HomeMy Public PortalAboutConservation Commission -- 2013-02-05 MinutesBrewster Conservation Commission Minutes — Meeting Under Massachusetts General Law
Ch. 131, §40, Wetlands Protection Act (WPA), 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 BREWSTER TOWN CLERK
Wetland Regulations 1.01 — 8.01
Call to Order )'
Acting Chairman Hayley Winfield called to order the Tuesday, February 5, 2013 meeting of q9 MAR21 4:10OPM
Brewster Conservation Commission at 7:00 PM at the Brewster Town Offices, 2198 Main Street,
Brewster, MA.
Present
Commissioners William Klein, Jon Romano, Michael Tobin, Paul Wightman, Acting Chairman
Hayley Winfield, Alternate Member Shana Brogan, Conservation Administrator James Gallagher,
Natural Resources Director Chris Miller, Senior Department Assistant Carol Spade
Not Present
Chairman Stephen McKenna, Vice Chairman Bruce Evans, Alternate Member Jeanne Boehm
Acting Chairman Hayley Winfield 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
(Continued Hearing) (Amended Proposal) Under the BWP WP Wetland By -law only, Rita
Demarco proposes to remove trees, fill and re -grade to provide a level surface for horses,
and install fencing to contain horses; within the 100 and 50 foot buffer zones of isolated
vegetated wetlands; on 3750 Main Street, Assessors' Map 126, Parcel 62 (formerly 29/10).
Eligible voting members: Evans, Klein, Romano, Tobin, Wightman, McKenna; hearing opened on December 4,
2012 (no testimony), January 8, 2013 (testimony taken)
Summary of Applicant Testimony
Owners Rita DeMarco and Maureen Alston attended as their own representative.
Summary of Staff /Conservation Commission Comments
Mr. Gallagher established that components of the proposed electric fence are to be underground,
although it is not shown on the plan. He then reviewed the draft special conditions. Following brief
discussion, Paul Wightman moved, Michael Tobin seconded the motion to approve special
conditions as discussed and amended, and approve the project. The motion was Approved
Unanimously by Commissioners Klein, Romano, Tobin and Wightman.
Summary of Public Comments
There was no public comment.
*List of documents submitted for the project and discussed at this hearing
1. Notice of Intent for Rita Demarco
2. "Site Plan, Rita F. Demarco Maureen Alston... J. C. Ellis Design rev. 1/29/13"
(Continued Hearing) David M. Banash proposes to 1. stabilize an eroding slope, to Include
removal of trees, placement of boulders and planting native vegetation; 2 remove existing
Brewster Conservation Commission Minutes. February 5, 2013
stone masonry and a concrete pad, and reconstruct a landing platform on elevated posts
(on dwelling); 3. replace an existing seasonal dock; 4. maintain or replace an existing boat
ramp at an existing boathouse; and 5. repair of an existing concrete pad at the boathouse
— on 195 Leland Road, Assessors Map 33, Parcel 3 (formerly 36142).
Eligible voting members: Evans, Klein, Romano, Tobin, Wightman, McKenna Hearing opened December 4, 2012,
(testimony taken), January 8, 2013 (testimony taken)
Lynne Hamlyn, Hamlyn Consulting, Inc. represented David M. Banash, who attended also.
The hearing of January 8, 2013 was continued to allow the staff to draft special conditions under
the BWP By -law.
Summary of Staff Comments
Mr. Gallagher reviewed the draft special conditions for the Order of Conditions.
Summary of Public Comments
There was no public comment.
Summary of Conservation Commission Comments
Following brief comment on special condition B29, Paul Wightman moved, Michael Tobin
seconded the motion to approve the special conditions as amended, and to approve the project
(Order of Conditions SE 9- 1563). The motion was Approved Unanimously by eligible voting
members Klein, Romano, Tobin and Wightman.
Request for Determinations of Applicability
MA Department of Transportation /Highway Division/ District 5 requests determinations as
to whether the area and work depicted on plans submitted — repair of eroded shoulders at
culvert at Quivett Creek, including removal of topsoil as needed and placement of riprap
stone - is subject to jurisdiction of the Wetlands Protection Act — at Quivett Creek Culvert,
on eastbound and westbound (north and south) sides of Route 6A at the Brewster /Dennis
Town Line at Station 0 +00, Brewster = Station 225 +14, Dennis.
Summary of Applicant Testimony
Representatives, Thomas McGuire, district environmental engineer and Andrea Coates, staff
engineer, MA Department of Transportation (DOT), attended. Mr. McGuire explained the project
as described above and specified in the Request for Determination". He added that the project
will also occur in the abutting town of Dennis, and the DOT filed accordingly with the Dennis
Conservation Commission.
Summary of Staff /Conservation Commission Comments
Mr. Gallagher explained the project's exemption under the BWP By -law (172 -3). As detailed in his
Administrative Report", the Conservation Administrator expressed concern over the area because
the culvert is part of the Bound Brook herring run, and conditions must be imposed to ensure the
project will not block the stream or affect the herring. During the course of discussion it was
established that constructing a berm to control runoff would not be appropriate in this case for
protecting the wetland interests, and installing a drainage system would entail filing a Notice of
Intent.
Summary of Public Comments
There was no public comment.
Jon Romano moved, William Klein seconded the motion to issue Negative Determinations 2
and 3:
2. The work described in the Request is within an area subject to protection under the Act, but will not
remove, fill, dredge, or alter that area. Therefore, said work does not require the filing of a Notice of
Intent.
Brewster Conservation Commission Minutes. February 5, 2013
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).
- Contingent on adherence to special conditions as follows:
• There shall be a time -of -year (TOY) restriction on all work in the water from
March 15 to June 30 to protect diadromous /catadromous fish passage, migration
and spawning.
• In- stream work, including removal of siltation, shall be completed by hand.
• An erosion control barrier shall be set, consisting of a properly installed siltation
fence and straw wattles.
The motion was Approved Unanimously.
*List of documents submitted for the project and discussed at this hearing
1. Request for Determination... for MA Department of Transportation...
2. "Site Plan, Proposed Erosion Repair In Dennis and Brewster..." 1/3/13
The following applicants filed Notices of Intent:
(Continued Hearing) David and Linda Houghton propose to construct a deck, two patios,
and shower to an existing dwelling, and prune for a vista and otherwise manage existing
vegetation along a salt marsh, at 94 Upland Circle, 127/19 (formerly 10/20 -49).
Eligible voting members: Evans, Klein, Romano, Tobin, Wightman, Winfield, McKenna, (Brogan); hearing opened
December 18, 2013 (testimony taken)
The proponent requested in writing to continue the hearing to February 19, 2013.Michael Tobin
moved, William Klein seconded the motion to continue the hearing to February 19, 2013. The
motion was Approved Unanimously.
(Continued Hearing) Thomas and Carol Edmondson, Peter Wallis, Paul and Annette
Roberts and the Town of Brewster propose to re- construct a rock revetment on a coastal
dune and coastal beach, on 41, 47, 51 Captain Dunbar Road and 0 Ellis Landing,
Assessors' Map 91, Parcels 39, 40, 41 and 42 (formerly 7/14, 15, 16, 16 -1).
Eligible voting members: McKenna, Evans, Klein, Tobin, Winfield, Boehm. Hearing was opened on August 21
(testimony taken), continued to September 18 (no testimony), October 16 (no testimony), November 20 (no
testimony), December 4 (no testimony), December 18, 2012 (no testimony), January 8 (no testimony)
The proponent requested in writing to continue the hearing to February 19, 2013.
Michael Tobin moved, William Klein seconded the motion to continue the hearing to March 19,
2013, to allow time for the proponent to submit information including:
• A current as -built plan of the existing revetment structure.
• A full resource area delineation; specifically the resource areas along the eastern edge of
the project.
• Under the BWP By -law; an alternatives analysis, including relocation and /or raising of
dwellings, a narrative of mitigating measures as required in the variance justification,
including measures to ensure compliance, and information as to how the proposed
revetment return, armored mat, and proposed rip -rap on the east side of the project meet
performance standards.
The motion was Approved Unanimously.
(Continued Hearing) Benjamin and Jennifer Gannett propose to amend Amended Order of
Conditions SE 9 -1479 - for demolition and reconstruction of an existing dwelling with
second floor expansion over a formerly proposed deck in a coastal dune — to construct an
outdoor shower. Property Is on 68 Ocean Street, Unit 7 (now known as 92 Ocean Street,
Assessors' Map 90, Parcel 46 (formerly Assessors' Map 7, Parcel 42).
Eligible voting members: Evans, Klein, Romano, Tobin, Wightman, McKenna Hearing opened January 8, 2013
(testimony taken)
Brewster Conservation Commission Minutes. February 5, 2013 3
The proponent requested in writing to continue the hearing to February 19, 2013. Jon Romano
moved, Paul Wightman seconded the motion to continue the hearing to February 19, 2013. The
motion was Approved Unanimously.
(Continued Hearing) Pineland Park Association, In care of John Whidden proposes to
reconstruct an existing wooden walkway and parking lot drainage within a coastal dune on
0 Seaway, Assessors' Map 79, Parcel 108 (formerly 6/21).
Eligible voting members: Evans, Klein, Romano, Tobin, Wightman, McKenna Hearing was opened on January 8,
2013 (testimony taken)
Summary of Applicant Testimony
Matt Farrell, J. M. O'Reilly, Inc., represented the applicants, and described the revision to the plan
for specificity on directing stormwater away from jurisdictional areas into the drainage basin(s), as
contained in the NOI narrative, stormwater information" and revised plan` requested on January
8, 2013. He affirmed the parking lot will be composed of shell or other natural pervious material.
Summary of Staff /Conservation Commission Comments
The Commission discussion centered on appropriate drainage mechanisms and conditioning the
project to require adequate routine drainage maintenance as contained in the stormwater report`
submitted the applicant. The Commission consensually affirmed that annual maintenance reports
shall be submitted. Reports may be written by a designee appointed by the property owners,
although the designee shall demonstrate a working knowledge of the drainage structures.
Summary of Public Comments
There was no public comment.
Jon Romano moved, William Klein seconded the motion to continue the hearing to February 19,
to allow the Conservation staff to draft special conditions for the project, to include those
described above. Continuance to February 19, 2013 Approved Unanimously.
*List of documents submitted for the project and discussed at this hearing
1. "Storm Water Report Pineland Park Association... narrative, J. M. O'Reilly... 1/28/13
2. Notice of Intent for John Whidden additional materials;... Stormwater Information... 1/28/13,1/29/13
3. "Site Plan, Pineland Park Association, Inc. J. M. O'Reilly... rev. 1/29/13"
Citizens' Forum
There was no member of the public present wishing to speak at this time.
Topic not reasonably anticipated by the Conservation Commission Chairman
Dana Condit, Chairman, Alewife Committee /Millsite Committee, and Natural Resources Director
Chris Miller attended, to discuss the following Order of Conditions:
Order of Conditions SE 9 -1544, 830 Stony Brook Road, 35 /47(formerly 36/21)
(Town of Brewster Natural Resources Director, applicant) - Rehabilitation of the Lower Mill
Pond Dam at the Brewster Stony Brook Herring Run and Mill Site - replacing the upstream
stone wall with a concrete wall, cast "in- place ", replacing the primary spillway /fish passage
weir with a spillway weir cast "in place ", and replacing the low level slide gate west of the
dam and removing woody vegetation and all woody vegetation, stumps and roots within 20
feet of the dam - within wetland inland banks, bordering vegetated wetland, land under
water bodies and waterways, fish run and riverfront
Mr. Condit and Mr. Miller explained that draining the area during the course of work on this
project revealed the loose stone edge of the pool to be crumbling and failing. They believed it is
necessary to add a concrete footing, one foot deep by one and one /half feet wide on the west
side, between the dam and the mill wheel. It will require that this area be excavated and poured
with concrete, with new stones added to the wall. They believed to be done effectively, the work
must coincide with the work on the dam which is scheduled for the next day, Wednesday,
February 6, 2013.
Mr. Condit submitted photos for the project file, showing the affected areas.
Brewster Conservation Commission Minutes. February 5, 2013 4
Mr. Miller also requested the Conservation Commission allow handicapped access near this area.
Following discussion based on both the request and Mr. Gallagher's Administrative Report*,
the Conservation Commission consensually agreed to allow the excavation, concrete and stone
work to go forth as described above, that it can be approved by the Conservation Administrator
as a minor modification to the plan, and will not require an after - the -fact amendment the Order of
Conditions.
(Continued Hearing) Stephen and Stephanie Tupper propose to construct a single family
dwelling and associated construction within 50 feet of a bordering vegetated wetland on 0
Olde Owl Pond Road, Assessors' Map 137, Parcel 75 (formerly 31/17).
Eligible voting members Evans, Klein, Romano, Tobin, Wightman, McKenna Hearing was opened on January 8,
2013 (testimony taken)
John Schnaible, RS, Coastal Engineering Co, Inc. represented the applicants. Stephanie and
Stephen Tupper and Kathleen and Ralph Tupper attended.
Summary of Applicant Testimony
Referencing the Notice of Intent` and displaying a copy of the submitted revised plan *, Mr.
Schnaible described the changes to the proposed project, in compliance with the Conservation
Commission's requests at the public hearing of January 8, as follows:
1. The driveway was removed from the 50 foot buffer zone of the wetland.
2. The structure was moved approximately five feet further from the resource area, leaving
approximately five feet of separation from the 50 foot buffer zone.
3. The work limit was moved closer to the project area, to avoid unnecessary vegetation
removal.
4. The septic system was revised and re- located, a portion approximately 80 feet from the
wetland, and a deck in the 100 foot buffer zone was removed.
The project was submitted to the MA Historical Commission (MHC), as it occurs on the Brewster
Archaeological Map within the jurisdiction of significant historic or archaeological resources. It
was established the MHC responded* that "After review ... it has been determined that the project
is unlikely to affect... historic or archaeological resources."
The project is within the MA Natural Heritage and Endangered Species ( NHESP)* jurisdiction as
shown on the applicable map. It was established that NHESP submitted a response that the
project as proposed, will not affect rare habitats *.
Summary of Staff /Conservation Commission Comments
Commissioners commended the applicant on complying with all of the changes requested at the
original hearing; leaving open only questions on mitigation and whether a lawn is proposed. The
Commission consensually agreed that if a lawn is intended around the dwelling, the Commission
condition that the native seed mix suggested in the Conservation Administrator's Administrative
Report be used.
Mr. Tupper submitted a mitigation planting plan* at this time showing proposed native shrubs and
trees in jurisdictional areas of disturbance.
The applicant received a file number from MA Department of Environmental Protection (DEP) on
January 7, 2013 (SE 9- 1567), showing the application under the State is complete.
Michael Tobin moved, Jon Romano seconded the motion to continue the hearing to February 19,
to allow staff to draft special conditions for the project. The motion was Approved Unanimously.
*List of documents submitted for the project and discussed at this hearing
1. Notice of Intent for Stephen and Stephanie Tupper
Brewster Conservation Commission Minutes. February 5, 2013
"Site Plan, Proposed Site and Sewage Disposal Plan, Steven Tupper Olde Owl Pond Road" revised
1/25113
2. MA Appendix A Massachusetts Historical Commission response received 1116/13
3. February 13, 2013 letter to S .... Tupper from Thomas W. French, Assistant Director, Natural Heritage &
Division of Fisheries and Wildlife MA Natural Heritage and Endangered Species Program (NHESP);
determination that the project: "will not adversely affect the actual resource area habitat of state
protected rare wildlife species pursuant to WPA, 310 CMR 10.59 ...and will not result in a prohibited
"take" of state - listed rare species pursuant to MESA ... 321 CMR 10.18 This project may be subject to
further review ... If there Is a change to the project."
4. "Proposed Plantings: Preliminary Revegetation Plan" Drawn by S. Tupper 2/4/13
Requests for Certificates of Compliance
1. Robert Marash Order of Conditions SE 9 -1474, 83 Sheep Pond Circle, 73/14
(formerly 41/85); staircase and stairway, kayak rack
The Conservation Administrator informed the board that some restoration plantings failed
to survive and some mitigation measures have otherwise failed; he did not believe the
project complies with the Order of Conditions. Tobin moved, Wightman seconded the
motion to deny the above referenced Certificate of Compliance under the MA ACT and
BWP By -law. The motion to deny the Certificate of Compliance request was Approved
Unanimously.
2. Robert Schrader, SE 9-1216,45 Candlestick Lane, 15/16 (formerly 21129 -5), garage,
Following the recommendation of the Conservation Administrator that the project
essentially complies with the Order of Conditions, Wightman moved, Tobin seconded the
motion to approve the above referenced Certificate of Compliance under the MA ACT
and BWP By -law. Approved Unanimously.
Requests for Administrative Review
1. Neil Tomkinson, 225 Cranview Road, 20/19 (formerly 51118 -6), tree removal
2. Sean O'Leary, 299 Landing Drive, 82/64 (formerly 48117), stone wall relocation, tree
removal
3. HKN Trust, 36 Eagle Cartway, 138143 (formerly 30118 -1), fence replacement, tree
pruning
4. Charles Mason, 189 Lower Road, 37142 (formerly 19/8) pruning
The Conservation Administrator believed the four above referenced projects meet all
provisions for activities under the mechanism of Administrative Review. Following review
and discussion of each, Wightman moved, Tobin seconded the motion to ratify the four
Administrative Review approvals as listed. Approved Unanimously.
Review and Approval of Minutes
1. January 8, 2013
2. January 22, 2013
Following review, Tobin moved, Romano seconded the motion to approve the above
referenced minutes as written. Approved Unanimously.
Violations /Ratification of Enforcement Orders
1. Edna Pawlina, clearing of vegetation and drainage within 100 feet of wetland, 112
Spring Lane, 48/13 (formerly 19/43)
2. Steven N. and Rosita Brallovsky Fine Order of Conditions SE 9 -1505, construction
of an impervious (stone) patio, and stairs, retaining wall expansion within 50 feet of
an inland bank,123 The Channel Way, 58/8 (former 4/43)
Jon Romano moved, Michael Tobin seconded the motion to ratify the above referenced
Enforcement Orders. The motion was Approved Unanimously. The Commissioners signed
the documents.
Discussions /Report of the Conservation Administrator
1. Cape View Development, LLC Request for alternate scale for ANRAD Application
Brewster Conservation Commission Minutes. February 5, 2013 6
Following a brief discussion on the submitted plan, Michael Tobin moved, Jon Romano
seconded the motion to follow the recommendation of the Conservation Administrator to
accept a site plan scale of 1 " = 50' for the above wetland application.
Discussion of Draft Continuance Policy
Scheduling of Work Session
The Commission agreed to schedule a legally posted work session for Wednesday,
February 13, at 6:00 PM. The agenda will include the discussion of the draft policy on
continued hearings.
Topic not reasonably anticipated by the Conservation Commission Chairman
By Electronic Mail, February 5, 2013; Wesley Price, founder of the Cape Cod Mushroom
Club, request to utilize Brewster conservation lands for walk locations.
Following discussion, the Commission consensually agreed to the above captioned request,
contingent on the Cape Cod Mushroom Club's prior notice to the Conservation Department
before each organized walk, as to the exact conservation area and approximate number of
people.
Jon Romano moved, Michael Tobin seconded the motion to adjourn the meeting.
The meeting adjourned at 8:44 PM.
Carol Spade
Among the list of documents` for this meeting Is the following:
Administrative Report of the Conservation Administrator dated February 5, 2013
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
Brewster Conservation Commission Minutes. February 5, 2013