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HomeMy Public PortalAboutConservation Commission -- 2013-04-16 Minutes rrrrrNrrw, Brewster Conservation Commission Minutes— Meeting Under MA General Laws Chapter 40, Section 8C, 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) Wetland Regulations 1.01 —8.01 Call to Order Chairman Stephen McKenna called to order the Tuesday, April 16, 2013 meeting of the Brewster Conservation Commission at 7:00 PM at the Brewster Town Offices, 2198 Main Street, Brewster, MA. Present Chairman Stephen McKenna, Vice Chairman Bruce Evans, Commissioners William Klein, Jon Romano, Michael Tobin, Paul Wghtman, Hayley Winfield, Alternate Member Shana Brogan, Natural Resources Director Chris Miller, Senior Department Assistant Carol Spade Not Present Alternate Member Jeanne Boehm, Conservation Administrator James Gallagher 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." Discussion Town owned land under the care, custody and control of the Brewster Conservation Commission under MA General Laws Chapter 40, Section 8C—request for approval by the Conservation Commission,for creation of a recreation area for people and off-leash dogs - land fronting Long Pond Road (Route 137)and Brewster Road, Assessors' Map 56, Parcel 62(formerly 25/41) Chairman McKenna informed attendees that the proponent requested this discussion be continued to April 30, 2013, at 7:00 PM. Public Hearings Requests for Determinations of Conservation Commission Jurisdiction: Robert and Suzanne Boas request determinations over whether removing trees and exotic vegetation, replacing with native plants, and path maintenance, are subject to the Wetlands Protection Act and/or the Brewster Wetlands Protection By-Law; on 299 Landing Drive, Assessors' Map 82, Parcel 64(formerly 48117). Summary of Applicant Testimony Philip Cheney represented the applicants. He described the project as contained in the application*and plan*. Summary of Conservation Commission Comments The Commission discussed the vegetation removal, the proposed planting and the plan, and consensually requested that invasive vegetation be removed and the area thoroughly examined before determining to remove further vegetation, including oak trees. Summary of Public Comments Brewster Conservation Commission Minutes. April 16, 2013 1 There was no public comment. Jon Romano moved, Michael Tobin seconded the motion to issue negative determinations, as follows,with the following requirement for Determination 3: 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: • The two large oak trees designated on the plan as"to be removed",shall remain. 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. *List of documents submitted for the project and discussed at this hearing 1. Request for Determination...for Robert and Suzanne Boas 2. "Landscape Plan the Boas residence,229 Landing Drive...by P.L.Cheney,1/30/13" Chris Singer requests determinations over whether the area and work; replanting existing 850 Sq. Ft. landscape beds within 100 feet of inland wetlands,are subject to the Wetlands Protection Act and/or the Brewster Wetlands Protection By-Law; on 186 Canoe Pond Drive, 23/56(formerly 36/223). Summary of Applicant Testimony Matt Farrell, J. M. O'Reilly, represented the applicant, who attended. Mr. Farrell explained the project, as shown on the plan of record*. Summary of Conservation Commission Comments Discussion of the proposal and the Administrative Report of the Conservation Administrator* resulted in the motion and special conditions referenced below. Summary of Public Comments There was no public comment. Jon Romano moved, Michael Tobin seconded the motion to issue negative determinations, as follows, with the following requirement for Determination 3: 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: 1. Within 100 feet of wetlands,the owner shall direct roof runoff into drywell(s). 2.The Conservation Commission encourages the owner to plant vegetation on"rear slope"within 100 feet of wetlands. 3.The Commission encourages removal of the concrete located in the 100 foot buffer zone. 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 Chris Singer 2. "Plot Plan of Land...Prepared for...Eagleson,11/21/84 3. (untitled)planting plan for 186 Canoe Pond Drive" Thomas J. Pyles requests determinations over whether the area and work: removing debris from old beach stairs and re-constructing a new landing and coastal stairs, are subject to the Wetlands Protection Act and/or the Brewster Wetlands Protection By-Law;on 192 Robbins Hill Road,49/79(formerly 2/18-8). Summary of Applicant Testimony Brendon Parker, Parker Homes, represented the applicant. He described the proposed coastal structure. Summary of Conservation Commission Comments Brewster Conservation Commission Minutes. April 16, 2013 2 The Commission briefly discussed the project and the Administrative Report of the Conservation Administrator*which stated the resource area had not been delineated. The applicant provided only an undated sketch*of a stairway. Summary of Public Comments There was no public comment. Based on lack of official engineered/surveyed plan showing wetland delineation, Michael Tobin moved, Hayley Winfield seconded the motion to issue the following Positive Determination: Positive 2b.The boundaries of resource areas... are not confirmed by this Determination... And the following Negative Determinations: 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. Negative 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 Thomas J.Pyles, 2. Beach Stair Replacement Pyles Job Scale 1/4"—1'(sketch)undated Notices of Intent: (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 voters:McKenna,Evans,Klein,Tobin,Winfield(Boehm) Hearing was opened on August 21.2012 (testimony taken),continued to September 18(no testimony),October 16(no testimony),November 20(no testimony),December 4(no testimony),December 18(no testimony),January 8.2013,(no testimony),February 5, (no testimony).March 19.(no testimony).Nine continuances total 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, Senior Scientist, Woods Hole Group, represented the private property owner/applicants. Thomas Edmondson attended also. Commissioner Wightman was not a Commission member on August 21, 2012, the date of the original hearing. However, in accordance with Chapter 79 of the Acts of 2006...*, he signed a "Certification of Review of Hearing Transcript", as he examined all evidence received at the Public Hearing of August 21, the only previous testimonial hearing, visited the site, reviewed the minutes and watched the videotape of the meeting. Though all who meet the (aforementioned) requirements may do so by law, he asked the applicant's permission to vote on the project. Mr. Wood responded it was his interpretation of the law that all who meet those requirements may vote at adjudicatory hearings. Mr. Wood agreed to allow this participation. Jason Norton In consideration of the eight month time lapse from the original hearing to the present, Mr. Norton briefly re-presented the initial proposal, as contained in the Notice of Intent*. He described it as a rock revetment re-construction on a coastal dune and coastal beach for protection of the residential properties, as well as that of the co-applicant, the Town of Brewster, for easterly abutting Ellis Town Landing, which has long been experiencing environmental problems. The extension onto the town property is designed to allow the public access to the beach and will not impede any drainage design the town would propose. He explained the existing revetment is not an "engineered" structure, and adversely affects wetland interests by preventing sand from entering the littoral system. He maintained the applicant is not proposing to increase the existing Brewster Conservation Commission Minutes. April 16, 2013 3 revetment seaward or in elevation, but to increase to the volume of stone landward below-grade and to meet professional engineering standards. Displaying the revised site plan*for review at this time, Mr. Norton then compared the plan changes to the revetment design reviewed on August 21, 2012. The revised plan contained a considerably larger expansion ("return") of the revetment structure on the town owned property, 0 Ellis Landing. Glenn Wood Mr. Wood explained the storm on or about February 8, 2013, intensified the owners' desire to protect their properties. He stated the revision is designed most importantly to protect the eastern flank of his client's property on 51 Captain Dunbar Road which abuts the Ellis Town Landing, but will protect the Town's Landing as well. During the course of the hearing, Mr. Wood repeated statements he made on August 21, 2012, including that he believed this entire proposed project has the full, prior support of the Brewster Board of Selectmen. Lee Weischar Drawing from an April 9, 2013 environmental report*for the project and displaying accompanying photos*, Mr. Weischar addressed comments from the Commission during the original hearing, as follows: 1. The Commission believes the internal structure of the proposed revetment will alter the coastal dune, per 310 CMR 10.28, and requested information on the amount of sand that this project would inhibit. Directing the Commission's attention to the photos*of the existing revetment and its components, Mr. Weischar explained that the composition of the existing structure is preventing sand release into the littoral system, excepting the sand the property owners are mandated in 2005 wetland permits to provide each year. The proposed structure would inhibit only 22 more cubic yards of sand from release into the littoral system, without the proposed annual sand application. 2. The Commission believes the existing revetment has functioned as designed and adequately protects the properties. Describing the existing site conditions, Mr. Weischar asserted the existing revetment prevents the coastal dune on the properties to function at all. He added the residents are concerned it will fail ultimately, and is beginning to fail in places, due to the lack of the foundational toe stones the proposed revetment would provide. Additionally, the resource area on his clients'properties receives little littoral drift sand in the system due to the revetments and groin to the west ("up-drift"), and because owners of those revetments were not required to add sand to the system when the Conservation Commission permitted their structures years ago. Thus, the location of his clients'properties is "the beginning of the littoral cell", with a completely altered landform. 3. The Commission believes the sand nourishment necessary to the project would not be conducted into the future for the life of the structure. Mr. Weischar explained the applicants are proposing and committed to adding sand, doubling the amount required by the present permit. The Conservation Commission can mandate that this be done in the future by means of ongoing special conditions. 4. The Commission believes the applicants should examine alternatives to this project, including raising the dwellings on pilings or moving them landward. Mr. Weischar maintained these are not viable alternatives. Moving the existing structures landward is not feasible, due to the small size of the parcels. Pilings will not protect the actual property or the septic systems when the revetment fails, and will cause more impact to the resource areas than the project at hand. The existing failing revetment will Brewster Conservation Commission Minutes. April 16, 2013 4 undermine and erode pilings and the dwellings will have no support; the direct cause of which would not be inundation by floodwaters, but the failed revetment. Therefore, the proposed revetment re-construction meets the performance standards for such work under the WPA and BWP By-law. The consultants requested the Conservation Commission approve the project as presented. Thomas Edmondson Mr. Edmondson thanked the Conservation Commission for immediately allowing needed repairs to the foundation to his home on 51 Captain Dunbar Road, resulting from the February, 2013 storm, through the wetland emergency permitting process*. He also stated for the record that several citizens have expressed support for the present project, including Brewster shell fisherman Brian Daley and citizen Theodore Ellis, who submitted a letter* to the Conservation Commission. He also expressed that contrary to the Conservation Commission's belief, stones were not added to the existing revetment in 2006. He submitted photos*showing boulders to support this statement. Summary of Conservation Commission CommentslStaff and Applicant Response Mr. McKenna submitted photos*to the Commission, showing boulders in the subject area in 1998, and after wetland permitting of 2005, and Conservation Commission minutes*for those projects. Mr. McKenna reviewed the history of the existing revetment, stressing that the past permitting processes would never have occurred because boulders on a dune are not allowed under the wetland laws, were it not for the unique and confusing fact of previously existing boulders on the dune. MA DEP and the Brewster Conservation Commission allowed the 2005 project purely on the basis of those pre-existing boulders. All involved in the 2005 permitting process fully understood the allowed redistribution of these boulders was not intended as a permanent solution; they would require continual maintenance because they would always fail on the unconsolidated sand dune. He stated that as the Conservation Commission minutes for these projects reflect, the 2005 project approved by the Commission was a "soft"design only and not an engineered revetment; therefore the applicant's reference to this past project as a"failure", is inaccurate. The applicant has not submitted an alternative to the proposed structure; he disagrees with the proponent that placing the dwellings on pilings would more adversely affect the dune than this proposal. The applicants are not proposing a revetment reconstruction at this time, but a new,free standing, three-dimensional engineered groin on a coastal dune which would affect the ability of the dune to perform its natural functions. The("return") shown on the revised plan, expanding the protection to the property on 51 Captain Dunbar Road is even greater in scope than originally proposed on August 21, 2012, and the applicant did not propose an alternative under the BWP By-law to that revision. Sand nourishment mitigation cannot be adequately conditioned so that it contributes to the protection of the interests of the WP ACT or BWP By-law. The applicant has not shown that the work meets performance standards of WP ACT or BWP By- , law. Brewster Conservation Commission Minutes. April 16, 2013 5 Furthermore, the boulders moved on the Ellis Town Landing during the emergency repairs to the dwelling on 51 Captain Dunbar Road following the February, 2013 storm to act as a return to the existing revetment, were not approved by the Conservation Commission. This constitutes a violation of wetland laws. Mr. Wood responded he believed the Town of Brewster hired a local company to move the boulders. Natural Resource Director Miller stated for the record that the town is not responsible for the boulders moved on the Ellis Town Landing. Mr. Wightman expressed concern that the applicants' consultants state that the resource area is not functioning as a coastal dune, but have not asked the Commission to issue a finding in writing that it is not playing a role in storm damage, flood control or wildlife habitat. Mr. Weischar responded that in his opinion the rock"face"of the existing structure acts as a vertical buffer, preventing the dune to function by moving landward or laterally, but the sand applied annually to the structure contributes to the littoral system. As on August 21, 2012, he referenced the statement of the Conservation Commission's expert consultant for past permitting*, that due to the existing rip-rap, the coastal dune on the properties has lost some of its natural beneficial function, interpreting this as stating that the dune does not at all function or meet the performance standards of a coastal dune. Concerns of other Commissioners included the lack of submittal of alternatives to the proposal, a (revised) proposal of a full engineered structure on the town property, the issue of both private properties and the Town of Brewster as co-applicants for the project, and the fact that the consultants had never before, proposed a revetment on a coastal dune. Summary of Public Comments Mr. James Foley attended the meeting. He introduced himself as a member of the Brewster Board of Selectmen. He stated that although he cannot provide the information the Commission seeks, he believed the Board of Selectmen has a legal obligation to preserve the Ellis Town Landing. He hoped that the Conservation Commission can find a way to approve the project, with its protection in mind. Mr. Salvatore DiFede expressed his concern for the coastline, the Ellis Town Landing and the applicants' properties. He supported and hoped the Conservation Commission approves the project. As presented, Ms. Winfield, Mr. Evans, Mr. Klein, Mr. Romano, Mr. Tobin, Mr. Wightman, and Ms. Brogan requested time to consider all of these issues before reaching a decision on this project. Hayley Winfield moved, Michael Tobin seconded the motion to close the hearing and to reach a decision on the project at a public meeting within the time legally required to issue a decision within 21 days of this hearing. Approved. Jon Romano and Shana Brogan abstained from voting. *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.Revised 3/1/13" 2. MGL Chapter 79 of the Acts of 2006, "An Act Further Regulating Meetings of Municipal Boards" (which amends Massachusetts General Laws Chapter 39,Section 23D) 3. April 9,2013 letter to Chairman of the Brewster Conservation Commission from Woods Hole Group, Lee Weischar 4. Conservation Commission minutes,August 21,2012 5. (Undated)photos of boulders(submitted at the meeting) 6. (Undated)letter from Theodore Ellis 7. WPA Emergency Certification Form 2/13/12 8. Photos,subject area,existing rocks and rebuilt armoring,1998—2005 Brewster Conservation Commission Minutes. April 16, 2013 6 9. Order of Resource Area Delineation,2011 10. August 7,2011 ANRAD Review,41,47,51 Captain Dunbar Road,Jim O'Connell,Coastal Advisory Services 11. Conservation Commission Minutes,August,2,2005,September 20,2005 12. 310 CMR:MA DEP Wetlands Protection Act Regulations 10.28(3),(4)coastal dune 13. Brewster Wetland Protection By-law 2.03 1—5 coastal dune,Part V 5.01 Variances (Continued Hearing) Steve Kass and Leslie Robinson proposes (after-the-fact filing)to vista prune in and within 50 feet of coastal wetlands, on 477 Paine's Creek Road, 38/8 (formerly 117). Eligible voters:Eligible voters: Evans,Klein,McKenna,Romano,Tobin,Wightman((Brogan) The proponent requested in writing that the hearing be continued to April 30, 2013. Michael Tobin moved, Paul Wightman seconded the motion to continue the hearing to April 30. Continuance to April 30, 2013 was Approved Unanimously. (Continued Hearing) Robert Schrader proposes to upgrade a septic system, adding a pump chamber,within 100 feet of a bordering vegetated wetland on 45 Candlestick Lane, 15/16 (formerly 21/29-5). Eligible voters:Klein,McKenna,Romano,Tobin,Wightman,Winfield(Brogan) MA DEP has not at this time issued a file number; nor has the proponent submitted the requested DEP data forms or Alternatives Analysis under the BWP By-law. The applicant is also awaiting response from the MA Natural Heritage Program*for endangered species review, as the project is located on its Estimated Habitat Map of State-Listed rare species. The Proponent has agreed to a continuance to April 30. Hayley Winfield moved, Jon Romano seconded the motion to continue the hearing to April 30, 2013. The motion was Approved Unanimously. Citizens' Forum There were no attendees wishing to speak at this time Show Cause HearingNiolations 1. (Continued) Steven N. and Rosita Brailovsky Fine Order of Conditions SE 9-1505, for removal of an existing dwelling,garage and two driveways and replacement with a new single family dwelling with attached garage and drive,within 50 feet of an Inland Bank on 123 The Channel Way, 58/8 (former 4/43) Onsite conditions: Deviations from approved plan -construction of an impervious (stone) patio, and stairs within 50 feet of an inland bank, and relocation and enlargement of a pervious driveway within100 feet of inland bank Rosita and Steven Fine met with the Commission on April 2, 2013, asking the Commission to allow the above referenced unauthorized pervious structures within 50 feet of wetlands. At the owners' request, following that meeting, the Commission visited the site The Commission initially held to the provisions of the BWP By-law that impervious structures are not allowed within 50 feet of wetlands, and determined at a meeting with the owners' attorney that they be removed. At this time Paul Wightman moved, Jon Romano seconded the motion to allow the patio and stairs to remain, and to rescind the owners' enforcement order. The Motion was Approved Unanimously. 2. Enforcement Order Ratification: Kevin Norton, 20 Swift Lane,69/96 (formerly 6/5), "after-the-fact" revetment reconstruction Paul Wightman moved, Jon Romano seconded the motion to ratify the above referenced enforcement order. The motion was Approved Unanimously. The Commissioners signed the document. Brewster Conservation Commission Minutes. April 16, 2013 7 Request for Certificate of Compliance 1. Frank Prete,81 Underpass Road,Order of Conditions SE 9-1209, 77/15 (formerly 15-1), construction, miniature golf course Following the written recommendation of the Conservation Administrator that the project complies with the Order of Conditions, Jon Romano moved, Bruce Evans 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. Cape Cod Museum of Natural History, 27/14 formerly 20/6, removal of garden adjacent to marsh 2. John W. Oman, 284 Paine's Creek Road, 19/19-1, replacement of existing refrigeration unit in a BVW 3. Cobbs Pond Condominium Trust,57/5 (formerly 17/1)Wauquanesit Drive, beach stair repair The Conservation Administrator in a written report, stated the above referenced projects meet provisions for activities under the mechanism of Administrative Review. Following review and discussion, Jon Romano moved, Hayley Winfield seconded the motion to ratify/approve the Administrative Review approvals. Approved Unanimously. Discussions/Report of the Conservation Administrator 1. Barry Dino Viprino, Property on 2342 Main Street,78/121, (formerly 16/83)—Future Request for Determination of Applicability filing for agricultural project, and request for waiver of requirements of scale and wetland detail on plan Mr. Viprino met with the Commission. He described his agricultural project, portions of which are within 100 feet of wetlands, as discussed briefly in a letter*to the Commission. Mr. Viprino stated he wished to submit a small scale plan with his application. The Conservation Administrator's Administrative Report* suggested the Commission determine if a Request for Determination would be sufficient for the project or whether it would require a Notice of Intent wetland filing, and if the discussed plan*, dated in the late 1990's and lacking wetland buffer zone delineations, would be adequate for the filing. Following discussion, the Commission consensually agreed Mr. Viprino may file a Request for Determination of Applicability. Any alteration within 50 feet of wetland(s)will require a professional engineered plan with a scale of 1" = 20', as required in the Brewster Conservation Commission filing instructions for wetland permitting. If all of the alteration is outside of 50 feet of wetlands, the Commission will accept the so described small scale plan. *Documents Submitted and Discussed 1. April 10,2013 letter to Conservation Commission from Barry Dino Viprino Any Topics not reasonably anticipated by the Conservation Commission Chairman Note: This discussion was not placed as an item on the April 16, 2013 agenda by the Conservation Administrator or the Conservation Commission Chairman. 1. Lombroso Amended Order of Conditions SE 9-1549, 93 The Channel Way, 58/6 (formerly 4/49)for reconstruction of a dwelling within 50 feet of a wetland David Bennett, Bennett Environmental Associates, and Trevor Meyer, Cape Associates, met with the Commission, requesting the board approve necessary"dewatering"work on the above referenced property, as contained in a letter to the Conservation Commission* and shown on Cape Associates... plan*which Mr. Bennett submitted to the Conservation Department earlier in the day Following discussion, Michael Tobin moved, Hayley Winfield seconded the motion, to approve the dewatering work as shown on the referenced plan, as a minor modification to Brewster Conservation Commission Minutes. April 16, 2013 8 the approved Site and Sewage Plan of record*for Amended Order of Conditions SE 9- 1549. The motion was Approved Unanimously. *Documents Submitted and Discussed 1. April 12,2013 Letter to Conservation Commission RE:Construction De-watering Plan... (received April 16, 2013)from Bennett Environmental Associates, Inc.Re:Order of Conditions SE 9-1549(Amended 3/11/13) 2. Cape Associates,do Trevor Meyer...Proposed Lombroso-Glynn New Dwelling Construction Site Sketch Plan for Proposed Dewatering 93 The Channel Bennett Environmental Associates...3/26/13 3. Site and Sewage Plan,93 The Channel.Prepared for Anna C. Lombroso,David B.Lajoie,RS,T.Varnum Philbrook,PE,final revision date 1/28/13 Michael Tobin moved, Paul Wightman seconded the motion to adjourn the meeting. The meeting adjourned at 10:00 PM. Carol Spade Among the list of documents*for this meeting are the following: Administrative Report of the Conservation Administrator dated April 11,2013 for April 16,2013 meeting 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,and video recording,Town of Brewster Website http://town.brewster.ma.us '13 J 9:55 BREk15TER t N LERK Brewster Conservation Commission Minutes. April 16, 2013 9