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HomeMy Public PortalAboutConservation Commission -- 2013-12-17 Minutes 730 ERK 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 " PPR 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 —9.15 Call to Order Chairman Paul Wightman convened the Tuesday, December 17, 2013 meeting of the Brewster Conservation Commission at 7:00 PM at the Brewster Town Offices, 2198 Main Street, Brewster, MA. Present Chairman Paul Wightman, Vice Chairman Bruce Evans, Commissioners William Klein, Stephen McKenna, Michael Tobin, Paul Wightman, Hayley Winfield, Conservation Administrator James Gallagher, Natural Resources Director Chris Miller, Administrative Assistant Carol Spade Not Present Commissioner Jon Romano, Alternate Member Shana Brogan Chairman Wightman read the following into the record: "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) Cape View Development, LLC, LEC Environmental Consultants, Inc. proposes to construct twenty-five (25) single-family dwellings and three (3)two-family dwellings, roadway,surface parking and driveways, grading, utilities, stormwater management and landscaping; within the 100 foot buffer zone to bordering vegetated wetlands and inland bank, on 0 Sachemus Trail, Assessors' Map 78, Parcel 137 (formerly 15/125-2). Eligible voters: Evans,Klein,Romano,Wightman,Winfield Hearing opened October 8,2013(testimony taken), continued to November 6(no testimony),December 3(testimony taken). The December 3, 2013 hearing was continued to allow the Conservation Administrator to submit requests for proposals to consulting services. Mr. Gallagher informed the Commission that he has submitted requests to three firms. The proponent requested in writing that the hearing be continued to January 7, to allow time for the proposals to be submitted and reviewed. Stephen McKenna moved, Hayley Winfield seconded the motion to continue the hearing to January 7, 2014. The motion was approved unanimously. Commissioner Hayley Winfield was recused from the following hearing: Cobbs Pond Condominium Association proposes to construct three rows of biodegradable coir envelope shorefront protection on a coastal bank and coastal beach, nourish the coastal bank with sand and native coastal plants, and replace an existing sand drift fence with a "modified drift fence", on Wauquanesit Drive, Assessors' Map 57, Parcel 5(formerly 17/1). Brewster Conservation Commission Minutes. December 17, 2013 1 The project is not located on the MA Natural Heritage and Endangered Species Map as an area of rare plant and wildlife habitat and rare wetlands wildlife. Summary of Applicant Testimony Jay Norton, Coastal Engineering, Inc., and Jim O'Connell Coastal Advisory Services, represented the applicant. Mr. Norton described his assessment of the history of the project area with regards to past applications for erosion control protection. He stated the erosion was caused by storms; most notably, the storm"Nemo" in February of 2013, and the presence of existing westerly located coastal engineered groins. To demonstrate the erosion, Mr. Norton displayed a large aerial photo***, which he stated was taken in the year 2012. ***Note:The displayed"Googie Earth"website photo was not submitted for the file. Mr. Norton then described the proposed project as contained in the application*and displayed in the accompanying submitted plan*. He stressed that the entire soft engineering structure is bio- degradable with no metal components, and described the proposed two rows of sand drift fence of 4" by 4" slats with a minimum of 50% open spacing between, held in place with 10' by 8" posts, to replace existing sand drift fence. He added that as the site is presently stable, the applicant would like to commence the project at a time when erosion conditions warrant the need for the proposed protection. Mr. O'Connell addressed the Commission, stating his role in the project was to examine the coastal processes along the shore; the shoreline change and wave dynamics of the project area, provide an opinion on the effectiveness of the proposal, document any adverse effects he might foresee, and determine if the project is compliant with the WPA and BWP By-law. He stated he provided that opinion in a December 10 letter to the Conservation Commission (with accompanying geology maps)*, followed by an addendum*, outlining the volume of sediment the Association has added in the last few years. He explained the lower portion of the coastal bank is subject to episodic erosion and vegetation removal. He stressed it is important to understand that while some erosion occurred as the result of recent storms(short term erosion), erosion is exacerbated by the man-made structures on the up- drift side. He then explained the long-term coastal process based on MA Coastal Zone Management Shoreline Change Maps from the year 1868-2009 (contained in the letter), at -0.43 feet per year in this general area; however, the high water line has fluctuated significantly with trend reversals from erosion to accretion and vice versa, over that long term. Mr. O'Connell then referenced the applicant's diligent(former permit) applications of 2,979 cubic yards of sand from 2010 to 2013, which fronted the coastal bank and eventually deposited into the littoral system, stating that the applicant proposes in this application, an additional 400 cubic yards of sand to nourish the coir envelopes and will nourish the littoral system further as the result of coastal processes. The 400 cubic yards of sand will provide mitigation for the project in the interests of storm damage prevention and flood control. Mr. O'Connell added that he supports the proposed sand drift fence constructed of 4"x4" slats, provided they are spaced to maintain a minimum of 50% sand permeability (i.e. the width of the slats shall not exceed the width of the gaps). He would question anything less than 50% permeability. Summary of Conservation Commission/Staff Comments In answer to Commissioner McKenna as to the amount of sand the natural bank supplies annually based on 0.4 feet erosion per year, Mr. O'Connell stated he is not convinced it is eroding at that rate in the specific Cobbs Pond location. However; for example, were the entire coastal Brewster Conservation Commission Minutes. December 17, 2013 2 bank on this property to erode one foot per year, it would supply the coastal littoral system with 300 cubic yards of sand annually. Mr. Norton submitted a product specification sheet* in response to a request from the Conservation Administrator for detail on the coir matting as to its thickness and biodegradable qualities. Mr. Gallagher also requested assurance that the posts be of un-treated wood. Mr. Gallagher requested the plan be revised to show the following: • The access area on the coastal bank for bringing sand to the project area (in an area of least interference with existing coastal plantings) • The dune restoration area • Labeling the area as "artificial dune". Based on the information as described by Mr. O'Connell and the observations of Mr. Gallagher, the Conservation Commission consensually confirmed the resource areas as coastal bank and coastal beach, fronted by artificial dune deposits which meet the definition of coastal dune. The Commission requested the coir envelopes not be installed to the easterly or westerly property lines; or alternatively, that the applicant obtain letters addressed to the Conservation Commission from the abutting property owners stating they understand the potential erosion impacts onto their properties from the coir envelop structures, and agree to them meeting the edge of their properties. Summary of Public Comments There was no public comment. Following review, Michael Tobin moved, William Klein seconded the motion to continue the hearing to January 7, 2014, to allow for submittal of a site plan revised as described above, letters from abutting property owners and for the Conservation Administrator to draft findings and special conditions for the project. The motion was approved.Hayley Winfield abstained. *List of documents submitted for the project and discussed at this hearing 1. Notice of Intent for Cobbs Pond Condominium Association 2. "Coastal Engineering Company,Inc.Cobbs Pond..Wauquanesit Road Plan Showing Proposed Shorefront Protection,11/13/13"Sheets 1 and 2 3. Jim O'Connell,Coastal Advisory Services December 10,2013 Analysis of Proposed Project at Cobbs Pond...:Sand-filled,Sand covered Coir Envelopes:Artificial Dune:Sand Drift Fence:&Vegetation; Figures 1 through 10' 4. Jim O'Connell...Addendum:December 14,2013 5. RoLanka International,Inc.Specifications BioD-OCF(submitted at hearing) Note: The Following Notices of Intent were heard collectively as one public hearing: Brewster Park Club proposes to nourish a coastal dune and coastal beach with sand and plant with American Beachgrass or other indigenous coastal plant species. On Carver Road, Assessors' Map 50, Parcels 33, 36, 37,41,43,44, 92 and access path (formerly 3/15, 16, 18, 19, 20, 21, 154-3). Charles D. and Nancy D. Beringer, Trustees.., propose to nourish coastal resource area(s) and plant American Beachgrass or other indigenous coastal plant species, on 1 Carver Road, Assessors' Map 50, Parcel 33 (formerly 3/15). Nancy P. Harwood, Trustee, Pond Family Trust, proposes to nourish coastal resource area(s)and plant American Beachgrass or other indigenous coastal plant species, on 16 Sunhouse Path,Assessors' Map 50, Parcel 37 (formerly 3/18). Brewster Conservation Commission Minutes. December 17, 2013 3 Walter Franck and Patrick Franck,Trustees, ... propose to nourish coastal resource area(s)and plant American Beachgrass or other indigenous coastal plant species, on 17 Sunhouse Path, Assessors' Map 50, Parcel 36 (formerly 3/16). Craig F. Pfannenstiehl and Christy A. Bergstrom, Trustees, 91 Carver Road Nominee Trust, propose to nourish coastal resource area(s) and plant American Beachgrass or other indigenous coastal plant species,on 91 Carver Road, Assessors' Map 50, Parcel 92 (formerly 3/154-3). Elizabeth W.J. and Jonathan P. Rice,Trustees, Elizabeth W.J. Rice Cot NT, propose to nourish coastal resource area(s) and plant American Beachgrass or other indigenous coastal plant species,on 67 Carver Road, Assessors' Map 50, Parcel 43 (formerly 3/20). Scott A.and Kathleen McQueen propose to nourish coastal resource area(s)and plant American Beachgrass or other indigenous coastal plant species, on 71 Carver Road, Assessors' Map 50, Parcel 44(formerly 3/21). Paul S. Barth and Katherine Knight propose to nourish coastal resource area(s) and plant American Beachgrass or other indigenous coastal plant species, on 39 Carver Road, Assessors' Map 50, Parcel 41 (formerly 3/19). The project is not located on the MA Natural Heritage and Endangered Species Map as an area of rare plant and wildlife habitat and rare wetlands wildlife. Summary of Applicant Testimony Jay Norton, Coastal Engineering, Inc., represented the Brewster Park Club and eight associated properties along the Brewster Park Club shoreline. Displaying the submitted site plan*, Mr. Norton described the project as contained in the application*as dune nourishment to counteract erosion due to storms; most notably, the storm"Nemo" in February of 2013. Mr. Norton described the resource areas as coastal dune and coastal beach, with the easternmost property (91 Carver Road, 50/92) consisting of coastal beach and transitioning from coastal dune to coastal bank. He cited the number of cubic yards of compatible sand proposed for each property. He based the calculations on profiles from the mean high water line landward to the existing dune "scarps". He stated 5700 total cubic yards will nourish resource areas on the immediate properties and down-drift resource areas as well. Erosion control matting for planting American Beachgrass is also proposed, at approximately elevation 15 (15 feet above sea level). Summary of Staff Comments/Conservation Commission Comments The Conservation Commission did not confirm accuracy of the resource areas shown on the plan. Ms. Winfield and Mr. McKenna discussed the proposed beach grass erosion control matting. Mr. McKenna believed it should not be allowed lower than elevation 20 (feet above sea level). Mr. McKenna stressed the erosion control matting does not allow the dune to function naturally, adversely affecting the ability of waves to remove sand from the dune, and interfering with the landward or lateral movement of the dune in the interests of stormwater and flood control. Such erosion control below elevation 20 could also adversely affect the interest of wildlife and wildlife habitat on the coastal beach. The Conservation Commission consensually agreed that erosion control matting shall be allowed only on consolidated soils. The Commission confirmed that the existing erosion control fencing on the properties can remain and be maintained; however, new fencing shall require prior permitting. In light of the Conservation Administrator's (agenda) concerns that the proposed beach sand access at Breakwater Town Landing is far from the project site, Ms. Winfield requested Brewster Conservation Commission Minutes. December 17, 2013 4 clarification as to whether the alternative Sunhouse Path at the western project area might be a better consideration. Mr. Norton agreed to revise the protocol with this in mind, and/or consider other options for bringing material onto the beach. Summary of Public Comments There was no public comment. Stephen McKenna moved, Hayley Winfield seconded the motion to continue the hearing to January 7, to allow the applicant to revise the application and plans to depict erosion control matting as discussed and clarification on material access area protocol, and for the Conservation Administrator to draft findings and special conditions for each application. The motion was approved unanimously. *List of documents submitted for the project and discussed at this hearing: 1. Notice of Intent for Brewster Park Club,Baringer,Harwood,Franck,Pfannenstiehl/Bergstrom,Rice, McQueen,Barth/Knight 2. "Brewster Park Club Plan Sunhouse Path/Carver Road Showing Proposed Beach Nourishment,Coastal Engineering Company,Inc.,11/26/13" Matthew Malouin proposes to remove an existing wooden retaining wall located within 50 feet of coastal resource areas, replace it with a concrete block wall, remove "invasive" vegetation within 50 and 100 feet of coastal resource areas, plant vegetation and seed with "Cape Cod" grass seed mix within 50 feet of coastal resource areas, and increase an existing turf grass lawn within 100 feet of coastal resource areas -on 259 Seaway Road, Assessors' Map 79, Parcel 106 (formerly 6/26). The project is not located on the MA Natural Heritage and Endangered Species Map as an area of rare plant and wildlife habitat and rare wetlands wildlife. Summary of Applicant Testimony John O'Reilly, J. M. O'Reilly, Inc., represented the applicant. He described the resource areas, and the project, as contained in the application*and accompanying plan*. He stated that having read the Conservation Administrator's agenda comments on the project, he will revise the plan notation to substitute the proposed non-native grass seed mix with that of salt tolerant native"Coastal Hair Grass", Little Bluestem" and fescues, and substitute the proposed native inkberry and winterberry for more salt tolerant native shrubs. Summary of Staff/Conservation Commission Comments The Conservation Commission confirmed the resource areas as a coastal bank fronted by coastal dune. The resource area delineation was reviewed under a Notice of Intent; an Order of Conditions SE 9-1568, was issued on March 8, 2013, and is valid at this time. Mr. Wightman and Mr. McKenna commended the applicant's proposal to replace the existing wooden failing retaining wall, as the existing wall appears to be leaching toxins into the environment. However, they inquired as to the reason the owner proposes to remove existing native vine and shrub material and extend the existing extensive lawn within 100 feet of the coastal resource areas. Mr. O'Reilly responded the owners enjoy recreating on the lawn. The Commissioners consensually requested the plan be revised to show the 50 foot buffer zone composed entirely of appropriate native shrubs*, allowing for a narrower(maximum four foot wide) pathway leading to the stairway than shown on the submitted plan. The Commissioners further requested more native shrubs in the 50 to 100-foot buffer zone. Brewster Conservation Commission Minutes. December 17, 2013 5 Ms. Winfield specifically requested the eastern border of the lot shown as"proposed lawn" be vegetated with native shrubs as a protective buffer from the environmental impacts of the adjacent Seaway Road and that the existing in-ground irrigation system be removed from the 50 foot buffer zone. Mr. O'Reilly responded he will relay all of the Commission's requests to the applicant. Summary of Public Comments The Conservation Administrator informed the Commission that abutter John Wright, president of the Pineland Park Association, was unable to attend, but requested the Commission be informed he supports the proposal. Following review, Stephen McKenna moved, Hayley Winfield seconded the motion to continue the hearing to January 7, 2014, to allow the proponent to revise the plan with appropriate native plantings, as requested, and for the Conservation Administrator to issue findings and 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 Malouin 2. "Matthew Malouin Existing Conditions Plan 259 Seaway Road...J. M.O'Reilly ...11/27/13" 3. Conservation Commission Approved Planting List:Cape Cod Cooperative Extension Service (www.capecodextenslon.org),list of native woody plants for coastal/inland wetland buffer zones depicting the species,size and natural spacing of plants Citizens' Forum There was no public comment at this time. Show Cause Hearings/Violations Forrestine L. Paulay,45 Candlestick Lane, 15/16,42 (formerly 21/29-5, 26-1) unauthorized clearing and destruction of vegetation in and within 100 feet of inland resource areas -amended enforcement order ratification—Review of Restoration Plan The most recent show-cause hearing of December 3, 2013, was continued to this date, to allow Blue Flax Design to submit a revised plan and narrative with revisions as required by MESA*and clarify the method of choosing the sprouts on cut trees which will promote strong canopy tree, as opposed to shrub growth, submit cost estimates of replacement plantings, and for Mr. Gallagher to contact Brewster Town Counsel. Forrestine Paulay did not attend this hearing. Mr. Gallagher informed the Commission he has been conversing with her, Town Counsel and Blue Flax Design to reach compliance for the violation. • At this time, Mr. Gallagher asked that the Commission approve the restoration plan, as so revised*. The Commission consensually approved the plan as revised on December 4, 2014. • Mr. Gallagher informed the Commission that Town Counsel has drafted an agreement, or"administrative consent"order with an escrow agreement. Ms. Paulay will deposit monies in an escrow account held by an agent The amount will fund the cost of the plantings, their installation and three years of monitoring and follow-up treatment. She will provide proof of these costs. Discussion centered on the time length of holding the funds in this agreement to ensure success of 100%of re-planting and coppice growth for this large-scale clearing. Mr. Wightman and Mr. McKenna understood from the meeting of November 20, that funds would be held long enough to require full violation compliance, and that Blue Flag Design had stated that the plantings would take ten years of management to that end. Brewster Conservation Commission Minutes. December 17, 2013 6 Stephen McKenna moved, Michael Tobin seconded the motion to continue the hearing to January 7, 2014, to discuss this issue in executive session. The motion was approved unanimously. *Documents discussed: 1. Blue Flax Land Management/Restoration Plan Narrative October 20,2013...45 Candlestick Lane • Blue Flax Restoration/Planting Plan...45 Candlestick Lane December 4,2013 2. Natural Heritage and Endangered Species Map as Priority Habitat under the MA Endangered Species Act(MESA)and Estimated Habitat under MA Wetlands Protection Act(WPA)regarding the existence of rare plant and wildlife habitat and rare wetlands wildlife • 11/14/13 Comments to Conservation Department on Restoration Plan...from NHESP, Brent Powers 3. Conservation Commission Approved Planting List: Cape Cod Cooperative Extension Service (www.capecodextenslon.org),list of native woody plants for coastal/inland wetland buffer zones depicting the species,size and natural spacing of plants 4. Conservation Commission Minutes of October 22,2013,November 6,2013:(Show-Cause Hearings on November 6,November 20,December 3) (2nd)Amended Order of Conditions Request- Preliminary Discussion Amended Order of Conditions SE 9-1541, on 371 Robbins Hill Road 38/72 (formerly 2/31) - Request from Bennett Environmental Associates, Inc.,for Commission to determine whether the purpose or scope of a new proposal—continuation of restorative planting onto an abutting property on 345 Robbins Hill Road, (formerly 2/32) -has not substantially changed and/or increased... such that project can be reviewed as a (second) amendment to Amended Order of Conditions SE 9-1541. The Conservation Administrator recommended the Commission allow this new proposal, to restore a very small area within 90 feet of the resource area, as a minor modification to the approved plan of record rather than requiring the full amendment process, given the close proximity of the proposed restorative planting on abutting land under the same ownership as the property on 371 Robbins Hill Road. The Commission consensually agreed to allow the project change as a minor change to the plan. Discussions/Report of the Conservation Administrator 1. Letter dated November 19, 2013 from Buchannan & Associates... Request for Conservation Commission action regarding non-compliance of Certificate of Compliance SE 9-891 issued 2/18/98, Britterige Village, continuing conditions on exterior lighting. Tom Devane attended as representative for Ocean Edge in response to the above referenced letter. Ms. Winfield and Mr. Klein expressed that the wattage for exterior lighting in the subject area appears very high, and may not be in compliance with the Order of Conditions. The Commission requested Mr. Devane investigate this issue and report his findings to the Conservation Administrator. Requests for Certificates of Compliance 1. Paul Anderson, Brewster Water Department, Order of Conditions SE 9-1538,West Gate Road/Run Hill Road, 32 and various (formerly 39 and various) Following the recommendation of the Conservation Administrator that the project complies with the Order of Conditions, Hayley Winfield moved, Michael Tobin seconded the motion to approve the above referenced Certificate of Compliance under the MA ACT and BWP By-law. The motion was approved unanimously. Request for Administrative Review 1. Carolyn Conant, 41 Saints landing, 50/3 (formerly 3/61-1)tree pruning, invasive species removal Brewster Conservation Commission Minutes. December 17, 2013 7 The Conservation Administrator believed the above referenced project meets parameters for an activity under the Commission's Administrative Review process. Following discussion, Stephen McKenna moved, Michael Tobin seconded the motion to approve the project. The motion was approved unanimously. Review and Approval of Minutes 1. September 17, 2013 Having reviewed the above referenced minutes, Stephen McKenna moved, Hayley Winfield seconded the motion to approve them as written. The motion was approved unanimously. 2. September 24, 2013 2. The Commission postponed review of the above referenced minutes. Discussions/Report of the Conservation Administrator(Continued) 2. Update, Michael & Linda Frazzette, 30 Governor Prence Road, Brewster, Assessors Map 58, Parcel 29 (formerly Map 4/64), installation of septic system within 100 feet of coastal wetland resources The above captioned property was brought to the attention of the Conservation Commission in October of this year, when a septic system was being installed within 100 feet of a coastal wetland without prior approval from the Conservation Commission. At this time, the Conservation Administrator informed the Commission it is his understanding that the property owners intend to install a new septic system and new dwelling (primarily) outside the 100 foot buffer zone, with possibly a deck and other landscape features within the buffer zone. Following discussion, the Commission recommended the owners file a Notice of Intent application with a site plan showing the proposed septic system, dwelling reconstruction and landscape features and restoration for the disturbed areas in the buffer zone. Failure to submit the restoration plan may result in enforcement action. The Conservation Commission reserves the right to issue Enforcement Orders for restoration of the disturbed area. Documents discussed: 1. October 18,2013 letter to...Frazzette from James M.Gallagher,Conservation Administrator 3. Appointment of designee to write Brewster Town Report, 2013 The Conservation Commission appointed Commissioner Hayley Winfield to write the above report. Any Topics not reasonably anticipated by the Conservation Commission Chairman The Natural Resources Director reported that annual "Ameri-Corps Week" is scheduled in the month of April. He then distributed a document for the record, showing proposed projects Ameri-Corps and other workers will be undertaking on town landing and conservation/recreation, etc. parcels which are necessary for the enjoyment and safety of the public. The Commission suggested various levels of wetland filings the projects will require. Document submitted • List of future town projects from Natural Resources Director Chris Miller,submitted on 12/17/13 At 9:20 PM, Hayley Winfield moved, Michael Tobin seconded the motion to adjourn the meeting. The motion was approved unanimously. The meeting adjourned at 9:20 PM. Carol Spade Brewster Conservation Commission Minutes. December 17, 2013 8 Among the list of documents*for this meeting is the following: Administrative Report of the Conservation Administrator, December 17, 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 Brewster Conservation Commission Minutes. December 17, 2013 9