HomeMy Public PortalAboutConservation Commission -- 2013-03-05 Minutes Brewster 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 BREWSTER TOWN CLERK
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 '13 MAY 2 9.4001
Call to Order
Acting Chairman Hayley Winfield called to order the Tuesday, March 5, 2013 meeting of the
Brewster Conservation Commission at 7:02 PM at the Brewster Town Offices, 2198 Main Street,
Brewster, MA.
Present, Commissioners William Klein, Jon Romano, Michael Tobin, Paul Wightman, 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 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
Requests for Determination of Applicability
J. Francis Lavelle and Michelle A. Lavelle request the Conservation Commission
determine whether the area and work, construction of an accessory poolside structure, is
subject to the Act or BWP By-law—property on 336 Lower Road, Assessors' Map 49,
Parcel 1 (formerly 19/27).
Summary of Applicant Testimony
Roger V. O'Day, Attorney, and David Handron, builder, represented the applicants. Mr. O'Day
described the project as contained in the application*and on the site plan*. He confirmed that
most of the poolside structure or cabana, will be constructed on the existing stone patio, with a
small portion on existing lawn.
Summary of Staff/Conservation Commission Comments
The Conservation Administrator stated that without additional soil, etc., data, he could not confirm
the resource areas on the site; bordering vegetated wetland and riverfront zone as accurate as
shown on the submitted site plan. (See Administrative Report.*)
The Commissioners consensually agreed that due to the nature of the project, it can go forth
conditionally**, without the wetland data.
The Commission directed Mr. O'Day to require the property owners remove existing yard waste
located in the jurisdictional area.
Summary of Public Comments
There was no public comment.
Jon Romano moved, Paul Wightman seconded the motion to issue determinations, as follows:
Brewster Conservation Commission Minutes, March 5, 2013 1
**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 Determinations
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 Unanimously by Commissioners Klein, Romano, Tobin, Wightman
and Winfield.
*List of documents submitted for the project and discussed at this hearing
1. Request for Determination...for J.Francis Lavelle and Michelle A.Lavelle
2. Site Plan of Land 336 Lower Road...Prepared for:Jim and Michelle A.Lavelle,Stephen A.Haas,PE,
1/4/13
Notices of Intent:
(Continued Hearing) Robert Newman, Ocean Edge Resort Limited Partnership, proposes
to construct two seasonal docks, an observation deck and recreational area on Blueberry
Pond, at Ocean Edge; Blueberry Pond at Britterige Village, Assessor's Map 89, Parcel 1-
3358 (formerly 27/39).
Eligible voting members:All; hearing was opened and continued with no testimony on February 19,2913.
The proponent requested in writing that the hearing be continued to March 19. Michael Tobin
moved, Jon Romano seconded the motion to continue the hearing to March 19, 2013. 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 45 (formerly Assessors' Map 7, Parcel 42).
Eligible voting members: Evans,Klein,Romano,Tobin,Wightman,McKenna Hearing opened January 8,2013
(testimony taken),February 5, February 19(no testimony)
Summary of Applicant Testimony
John O'Reilly, J. M. O'Reilly, represented the applicant.
At the continued hearing on January 8, the Commission consensually believed the outdoor
shower on the west side would adversely impact that pristine resource area; it would be more
environmentally appropriate to keep all activity(i.e., shower, existing walkway, etc).
on the east side of the dwelling
Mr. O'Reilly stated the revised plan shows the shower still on the west side, but reduced in size,
with six native mitigation (beach plum) shrubs to limit access on the west side of the dwelling, and
the cooperative's submittal of a letter*supporting the shower in this location.
Summary of Staff Comments
Mr. Gallagher requested the plan be revised to show the following:
• Corrected shower drainage 4'x3' (Shower Notes, 1),
• Native shrub size a minimum of three gallon (Shower Notes, 5).
Summary of Conservation Commission Comments
The Commission and the applicant briefly discussed the long history and status of this dwelling
reconstruction project on pilings in a coastal dune.
Summary of Public Comments
Brewster Conservation Commission Minutes, March 5, 2013 2
There was no public comment.
Paul Wightman moved, William Klein seconded the motion to approve an amendment to
Amended Order of Conditions SE 9-1479. Issuance shall be conditional on submittal of a site
plan* revised as requested by the Conservation Administrator, and special conditions revised to
reflect the same. The motion was Approved by Commissioners Klein, Romano, Tobin,
Wightman, with Hayley Winfield abstaining.
*List of documents submitted for the project and discussed at this hearing
1. December 20,2012 Request for Amendment to(Amended)Order of Conditions SE 9-1479
2. "Site Plan,Gannett Residence 68 Ocean Street(sic),J.M.O'Reilly,revised 2/25/13"
3. January 30, 2013 letter from Bruce Fulton,Treasurer,Brewster Dunes Co-op
(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:McKenna,Evans,Klein,Romano,Tobin,Wightman,Winfield,(Brogan), Hearing opened
December 18,2012(testimony taken),continued to February 5(no testimony)and February 19(testimony taken)
John O'Reilly, PE, PLS, J. M. O'Reilly, Inc., represented the applicants. Linda Houghton
attended.
Summary of Staff/Conservation Commission Comments
The continued hearing of March 5, 2013, was continued further to allow the proponent to submit a
plan revised to eliminate view corridors seaward of the 12-foot contour elevation*, and for staff to
draft special conditions*for the project. Having received the revised plan, Mr. Gallagher reviewed
the special conditions under the BWP By-law for this project.
The Commission briefly discussed that any approved herbicide use will utilize the 'cut and wipe'
method of application as opposed to spraying, as in special condition* B40, and condition B25,
which states:
"Invasive species management is approved for the entire project site and shall be
conducted in accordance with the phasing requirements indicated in condition B18. This
includes Phragmites management."
The Conservation Commission encouraged the owners to remove the invasive Phragmites
australis, as firmly requested by Commissioner Wightman at the hearings of December 18, 2012
and February 19, 2013.
Summary of Public Comments
There was no public comment.
Michael Tobin moved, Jon Romano seconded the motion to approve the special conditions, and
approve the Order of Conditions (SE 9-1566). The motion was Approved Unanimously by
eligible voters McKenna, Evans, Klein, Romano, Tobin, Wightman and Winfield.
*List of documents submitted for the project and discussed at this hearing
1. Notice of Intent for David and Linda Houghton
2. "David and Linda Houghton Site Plan,94 Upland Circle",revised 3/11/13
3. Special Conditions:Addendum Houghton Order of Conditions SE 9-1566,
Robert Newman, Ocean Edge-Blueberry Pond at Bitterige Village, proposes to vista prune
and remove invasive vegetation at Ocean Edge; Blueberry Pond at Bitterige Village,
Assessor's Map 89, Parcel 1-3358 (formerly 27/39).
The proponent submitted a written request on March 4 to continue the hearing to April 2. Jon
Romano moved, Paul Wightman seconded the motion to continue the hearing to April 2, 2013.
The motion to continue was Approved Unanimously.
Discussions:
Kevin Norton, 20 Swift Lane, 69/96 (formerly 6/5): Work originally allowed by Conservation
Commission under DEP Emergency Declarations* and BWP By-law
Brewster Conservation Commission Minutes, March 5, 2013 3
At its meeting of February 19, 2013*during a citizens' forum discussion, the Commission
consented that Mr. Norton may rebuild his revetment as described at that time, under the
emergency declaration, contingent on the following conditions:
1. Mr. Norton shall submit the following to the Conservation Department, prior to
commencement of work:
• a narrative detailing the work and work process,
• a diagram showing engineered cross-sections of the existing revetment.
2. Mr. Norton shall submit the above information to MA DEP: the work shall require prior
DEP emergency declaration approval.
3. Mr. Norton shall submit to the Brewster Board of Selectmen, notification of intent for
heavy equipment access from Point of Rocks public beach to the project area; and shall
obtain Selectmen approval prior to commencement of work.
Mr. Norton commenced and nearly completed all of the work. Mr. Gallagher stated that at
staff direction, he notified the Board of Selectmen after he accessed the public town beach,
but has not fulfilled any of the other requirements at this time, including approval of the work
from MA DEP under the Emergency Declaration.
Acting Chairman Hayley Winfield, who visited the site, believed that the new structure
appears more vertical and taller than the original revetment and that of his abutting
neighbors. Associate Member Shana Brogan member explained DEP official(s) informed her
the emergency declaration does not allow adding new materials to a site.
The members stressed they allowed Mr. Norton to repair his revetment under the emergency
provisions subject to the above listed conditions, in an amiable attempt to allow him to restore
his structure as it existed on February 7, 2013. Given the events that occurred and the
revetment expansion, they believed the project may require the filing of an "after-the-fact"
Notice of Intent under the ACT and BWP By-law.
The Commission consensually agreed Mr. Norton shall submit all of the information by
Friday, March 8 or enforcement will be in order. Additionally, he must submit profile cross-
sections and "as-built" plans of the newly constructed revetment by March 22, and meet with
the Commission on April 2, 2013, with the Conservation Commission.
Documents discussed:
1. Department of Environmental Protection Amended Severe Weather Emergency Declaration February
2013 Nor'easter
2. February 19,2013 minutes
3. February 20,2013 letter to Conservation Commission from Kevin Norton
General Discussion of Emergency Storm Repairs
The Commission believed it should seek clarification on future emergency declarations
issued by MA DEP, as to whether they apply also to local wetland by-laws and regulations.
Order of Conditions SE 9-1544, 830 Stony Brook Road, 35147(formerly 36/21)
Rehabilitation of the Lower Mill Pond Dam at the Brewster Stony Brook Herring Run and
Mill—Update and Modifications
Mr. Gallagher and Mr. Miller informed the Commission of activities which occurred on the
northerly dam site this past week, including removal of major trees, boulders and resultant
siltation, and repair of bridges damaged during dam construction.
Workers will soon be spreading loam and defining paths. Mr. Miller stated he believes that
ultimately, much of the shrub vegetation will re-grow: he hopes by the summer season, the
area will appear as it did before the dam project was begun. He plans to plant native shrubs
and trees where needed in the fall.
Mr. Gallagher added that ultimately, they will document all activities for Conservation
Commission review.
Brewster Conservation Commission Minutes, March 5, 2013 4
Citizens' Forum
There was no one present wishing to speak at this time.
Amended Order of Conditions Preliminary Discussion
1. James and Paula Lieb, Order of Conditions SE 9-1423, 268 Breakwater Road, 58/36
(formerly 4/15)Approved Project : Repair and maintenance of an existing Coastal
Engineering Structure by re-securing ends of fiber rolls, repairing a sand drift fence
and re-nourishing fiber rolls on a coastal dune, bank, beach and land subject to
flooding or inundation
-Request for Commission to determine whether purpose or scope of new
proposal:
(1)Additional rows of fiber rolls, (2) Addition of steel rods embedded within the
fiber rolls and
(3)A modified drift fence design - has not substantially changed and/or
increased... such that project can be reviewed as an amendment.
Following discussion, the Commission consensually agreed all of the work in the amended
proposal as described, extends beyond the boundaries of 268 Breakwater Road and will
require the filing of a new Notice of Intent.
2. William and Lynn Kargman, Order of Conditions SE 9-1514, 290 Foster Road, 79/26
(formerly 6/9)
Approved Project: Application of 200+-yards of beach sand, construction of sand
drift fence and planting beach grass at the terminus of Coastal Bank and on a
Coastal Beach -
- Request for Commission to determine whether purpose or scope of new
proposal: Shorefront protection maintenance to include (1) Modified drift
fence design, and (2) Reconstruction of an existing stairway approved
under Order of Conditions SE 9-719(modifying the design) -has not
substantially changed and/or increased... such that project can be
reviewed as an amendment.
Following discussion, the Commission consensually agreed to hear the project as an
amendment to Order of Conditions SE 9-1514.
Requests for Certificates of Compliance
1. (Re-issuance) Stephen McKenna, 757 Slough Road, 19/19 (formerly 51/11-4), Certificate
of Compliance SE 9-1433
The Conservation Administrator explained this is a re-issuance of a Certificate of
Compliance, as the owner was unable to locate the original. Tobin moved, Romano
seconded the motion to re-issue the above referenced Certificate of Compliance under the
MA ACT and BWP By-law. Approved Unanimously.
Request for Administrative Review
1. Tracy Williams, 42 Cedar Hill Road, 38/35 (formerly 2/45),fence construction
The Conservation Administrator believed the above referenced project meets all provisions
for an activity under the mechanism of Administrative Review. Following review and
discussion, Tobin moved, Romano seconded the motion to approve the Administrative
Review approval. Approved Unanimously.
Review and Approval of Minutes
1. February 5, 2013
Postponed.
Michael Tobin moved, Paul Wightman seconded the motion to adjourn the meeting.
The meeting adjourned at 8:49 PM.
Brewster Conservation Commission Minutes, March 5, 2013 5
Carol Spade
Among the list of documents*for this meeting is the following:
Administrative Report of the Conservation Administrator dated March 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, March 5, 2013 6