HomeMy Public PortalAboutConservation Commission -- 2014-05-21 Minutesrimpow
Brewster Conservation Commission Minutes—Meeting Under 4
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 —9.15
Call to Order
Chairman Paul Wightman convened the Wednesday, May 21, 2014 meeting of the Brewster
Conservation Commission at 7:05 PM at the Brewster Town Offices, 2198 Main Street, Brewster,
MA.
Present
Vice Chairman Bruce Evans, Commissioners William Klein, Michael Tobin (arrived at 7:15),
Chairman Paul Wightman, Alternate Member Virginia lannini, Conservation Administrator James
Gallagher, Natural Resources Director Chris Miller
Not Present
Commissioners Shana Brogan, Stephen McKenna, Hayley Winfield, Department Assistant Carol
Spade
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."
Requests for Administrative Review
1. Vincent and Leah Pesce, 187 Fox Meadow Drive, 101/34(13/41) cesspool upgrade
to Title V septic system 100 feet from wetlands
As contained in his Administrative Report and accompanying photos, the Conservation
Administrator believed the above referenced project meets parameters for an activity
under the Commission's Administrative Review process. Bruce Evans moved, William
Klein seconded the motion to approve the project. The motion was approved
unanimously.
2. Mary Jane Wheeler, 198 Old Long Pond Road, 93/24(47/12-1A)tree removal
As contained in his Administrative Report and accompanying photos, the Conservation
Administrator believed the above referenced project meets parameters for an activity
under the Commission's Administrative Review process. Bruce Evans moved, William
Klein seconded the motion to approve the project. The motion was approved
unanimously.
3. Scott Parr, 361 Slough Road, 11/50(38/102),second floor dormer addition
As contained in his Administrative Report and accompanying photos, the Conservation
Administrator believed the above referenced project meets parameters for an activity
under the Commission's Administrative Review process. Bruce Evans moved, William
Klein seconded the motion to approve the project. The motion was approved
unanimously.
4. Gino Verzone, 842 Stony Brook Road, 35/46(36/20),shed reconstruction
As contained in his Administrative Report and accompanying photos, the Conservation
Administrator believed the above referenced project meets parameters for an activity
under the Commission's Administrative Review process. Bruce Evans moved, William
Brewster Conservation Commission Minutes May 21, 2014 1
Klein seconded the motion to approve the project. The motion was approved
unanimously.
5. Susan Gist-Miller, 9 Frank D. Lawrence Road, 34/40 (36/62),tree and invasive
spieces removal
As contained in his Administrative Report and accompanying photos, the Conservation
Administrator believed the above referenced project meets parameters for an activity
under the Commission's Administrative Review process. Bruce Evans moved, William
Klein seconded the motion to approve the project. The motion was approved
unanimously.
Review and Approval of Minutes
1. March 18, 2014
2. April 1, 2014
3. April 15, 2014
Having reviewed the above referenced minutes, Bruce Evans moved, William Klei n
seconded the motion to approve them as written. The motion was approved
unanimously.
4. May 7, 2014
Having reviewed the above referenced minutes, Bruce Evans moved, William Klein
seconded the motion to approve them revised. The motion was approved
unanimously.
Michael Tobin arrived at this time(7:15).
Executive Session,
To discuss strategy with respect to litigation if an open meeting may have a detrimental
effect on the litigating position of the public body and the chair so declares: 20 Swift Lane,
Assessors Map 69, Parcel 98 (formerly Map 6, Parcel 5)
At 7:15 PM, Bruce Evans moved to convene in executive session, "to meet... as
defined in M.G.L.c. 30A, §21(a),with respect to the litigation referenced above, and
to return to regular session. Michael Tobin seconded the motion. The Commission
voted by roll call. Bruce Evans, "Aye", Paul Wightman, "Aye" Michael Tobin,
"Aye",William Klein, "Aye",Virginia lannini, "Aye".
Return to open session (7:37)
Public Hearings
Request for Determinations of Applicability
John Henry requests determinations as to whether the work—construction of a sunroom
addition in the location of an existing deck and an additional post-supported deck
connecting to a new handicap access ramp, and the area -are subject to the Wetlands
Protection Act and jurisdiction of the BWP By-law. Property is on 90 The Channel Way,
Assessors' Map 58, Parcel 74(formerly 4/38-1).
Summary of Applicant Testimony
Robert Perry, PE, Cape Cod Engineering, Inc., represented the applicant. He described that the
proposed project as contained in the Request for Determination and accompanying plan*.
Summary of Staff/ConservationCommission Comments
The Commission discussed the parameters of the project.
Summary of Public Comments
There was no public comment
As recommended by the Conservation Administrator, Bruce Evans moved, Michael Tobin
seconded the motion to close the public hearing and issue determinations, as shown:
Brewster Conservation Commission Minutes May 21, 2014 2
Negative Determination
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 Vice Chairman Bruce Evans, Commissioners
William Klein and Michael Tobin and Chairman Paul Wightman.
*List of documents submitted for the Request for Determination and discussed at this hearing
1. Site Plan,Topographic Plan of Land Showing Proposed Addition to an Existing Dwelling...90 The
Channel,Cape Cod Engineering,Inc.4130114
Chairman Wightman recused from the following Show Cause Hearing and left the meeting
room;,Vice Chairman Evans chaired.
Show Cause Hearing
1. 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—(First Show Cause Hearing for Enforcement Order issued on April
16, 2014) Bruce Evans, Michael Tobin,William Klein and Virginia lannini,
Commission participants)
Town Counsel Sarah Turano-Flores attended, representing the Brewster Conservation
Commission.
Mr. Gallagher explained that the present hearing is the first testimonial Show Cause
Hearing in accordance with the enforcement order issued to Forrestine L. Paulay on April
16, 2014 for alterations within 100 feet of wetlands. These alterations are in a newly
cleared area and additional to the wetland alterations identified in the enforcement order
dated October 10, 2013.
William C. Henchy attended as representative counsel for Forrestine Paulay.
Mr. Henchy repeated his statement of April 1 that his client denies any alterations beyond
the wetland clearing subject to the enforcement order of October 10, 2013; rather she
used the"allegedly newly altered 100 foot buffer zone area" as a repository for removed
invasive"briers". Invasive brier removal is a component of the Commission's approved
landscape design plan*which is mitigation for the 2013 violation. Mr. Henchy referenced
a May 16, 2014 letter*from Forrestine Paulay addressed and sent to James Gallagher by
electronic mail with respect to the enforcement order issued on April 16, 2014, as
confirmation of her position. Mr. Henchy then entered into the record a (second) copy of a
photo*which he described as taken by Ms. Paulay in late September or early October of
2013, which he believed depicted the new alleged violation area.
Mr. Henchy added that Forrestine Pauley is now aware of the Conservation
Commission's legal authority to protect wetlands and upland areas within 100 feet of
wetlands.
Mr. Henchy then submitted a letter from Frank Buddingh, MSc. Hol.Sc., consulting
arborist, stating that during the last week of April, 2014, all plant material was installed
under his supervision in accordance with the landscape design plan*for the violation
subject to and in compliance with the October 10, 2013 enforcement order.
Mr. Henchy requested that since the plantings for the October 10, 2013 violation have
been installed and his client has not cut illegally subsequent to that date, the Commission
abate all fines issued in 2014 ($1200)*.
Brewster Conservation Commission Minutes May 21, 2014 3
Mr. Henchy stated his client intends to pay the fines issued in 2013 for the violation, but
to contest the fines issued in 2014.
Mr. Gallagher recounted his observations (on or about March 12 of 2014) of many cut
tree stumps along with other vegetation within 100 feet of wetlands, and from the
appearance of the area, he believed these alterations to have occurred subsequent to
October 10, 2013. He stated that the Conservation Commission determined (on March
18, 2014)to issue four(4) Notices of Violation (fines) under Section 172-11(F)of the
Brewster Wetlands Protection By-Law*for removal of three of the trees, and removal of
understory, vines and briers, for a total of$1,200.00. Those fines were issued on March
21, 2014.
Mr. Klein and Mr. Tobin stated that in March of 2014 they (also) evidenced newly cut
trees(tree stumps) within 100 feet of resource areas on the site.
The Commission discussed the issued fines, and the restoration plan, as contained in the
enforcement order dated April 16, 2014 for the activity discovered in 2014, that was to
have been submitted by May 16, 2014,
Michael Tobin moved, William Klein then seconded the motion to continue this Show
Cause Hearing to June 17, 2014. The motion was approved unanimously by Bruce
Evans, Michael Tobin,William Klein and Virginia lannini.
*Documents
1. (4)$300.00 Notices of Violation under Section 172-11(F)of the Brewster Wetlands Protection
By-Law,issued March 21,2014,accompany photos showing three cut stumps
2. Photo submitted at hearings of April 1 and May 21,2014(undated)
3. Letter to James Gallagher from Forrestine Pauline dated May 16,2014
4. Plan Blue Flax Land Management/Restoration Plan Narrative dated October 20,2013,revised
December 4,2013 45 Candlestick Lane...,and Blue Flax Restoration/Planting Plan...45
Candlestick Lane revised December 4,2013(approved by the Conservation Commission on
December 17,2013)
5. See minutes of October 22, November 6, November 20,December 3,December 17,2013,and
January 7,February 4, March 4, March 18,April 1,April 15,May 7,2014,Show Cause
Hearings/Discussions,Forrestine L.Paulay.
Chairman Wightman resumed chairing at this time(8:17).
Discussion
1. Long Pond Boat Ramp, Crowell's Bog Road, Assessors' Map 61, Parcel 26
(formerly M49 P 25-1)
Natural Resource Director Chris Miller and Bob Bersin, director, Brewster Department of
Public works attended. They explained the existing recreational boat ramp at this town
landing is badly in need of repair. If funding is not available for the desired boat ramp
construction, they requested the Commission's opinion on using an alternative material.
Mr. Bersin submitted a brochure* of the material discussed.
The Commission consensually agreed to consider this option. Any such proposal will
require a Notice of Intent wetland filing and public hearing.
*Document discussed:
Milliken Concrete Cloth Licensed from concrete canvas
Public Hearings(Continued)
Notices of Intent
(Continued Hearing under the WPA only)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).
Brewster Conservation Commission Minutes May 21, 2014 4
Eligible voters: Evans,Klein,Tobin,Winfield,Wightman Hearing opened October 8,2013(testimony taken),
continued to November 6(no testimony),December 3(testimony taken),December 17(no testimony),January 7,
2014(testimony taken)February 4(no testimony)February 18(testimony taken),March 4,2014(no testimony),
April 15(no testimony).
The project proponent submitted a written request to continue the above referenced hearing to
June 3, 2014. Michael Tobin moved, Bruce seconded the motion to continue the hearing to June
3, 2014. The motion was approved unanimously.
(Continued Hearing)William Hanney proposes to relocate an existing dwelling to an off-
site location and construct a new dwelling with associated restoration, in and within 50
feet of coastal resource areas,on 29 Captain Dunbar Road, Assessors' Map 91, Parcel 37
(formerly 7/12).
Eligible voters: All.Hearing opened on April 15,2014(no testimony taken),May 7(no testimony)
The project proponent submitted a written request to continue the above referenced hearing to
June 3, 2014. Michael Tobin moved, Bruce Evans seconded the motion to continue the hearing to
June 3, 2014. The motion was approved unanimously.
(Continued Hearing)William J. Hanney proposes to demolish an existing building and
replace It with a proposed relocated dwelling,to be reconstructed primarily on an open
piling foundation,within coastal dune resource area(s),on 35 Captain Dunbar Road,
Assessors' Map 91, Parcel 38 (formerly 7/13).
Eligible voters: All.Hearing opened on April 15,2014(no testimony taken), May 7(no testimony)
The project proponent submitted a written request to continue the above referenced hearing to
June 3, 2014. Michael Tobin moved, Bruce Evans seconded the motion to continue the hearing to
June 3, 2014. The motion was approved unanimously.
As there was no quorum of Commissioners eligible to vote on the following continued
hearing, in accordance with Chapter 79 of the Acts of 2006, "An Act Further Regulating
Meetings of Municipal Boards"which amends Massachusetts General Laws Chapter 39,
Section 23D, Alternate Member Virginia lannini signed a"Certification of Review of
Hearing Transcript" stating she thoroughly examined all evidence received at the Public
Hearing of January 7, 2014, the only previous testimonial hearing she did not attend.
Examination of evidence included visiting the site of the subject hearing, reviewing the
minutes of the hearing of January 7, 2014 and reviewing all evidence received prior to
said hearing.
(Continued Hearing) Stephen C.and Christine A. Richards propose to reconstruct a single
family dwelling, including grading and demolition/reconstruction of an existing dwelling,
construct retraining walls and reconfigure an existing driveway; some work is proposed to
occur within 50 feet of coastal and inland wetland resources,on 36 Arnold's Cartway,
Assessors' Map 38, Parcel 69 (formerly 2/33-1).
Eligible voters:Evans,Klein,Tobin,Winfield Hearing was opened on October 8,2013(no testimony taken),
continued to November 6,2013(no testimony),January 7,2014(testimony), February 18,2014(no testimony),
March 18,2014(testimony taken),April 1 (no testimony),April 15,(no testimony),May 7(testimony taken)
The public hearing of May 7, 2014, was continued to allow the Conservation Administrator to draft
findings and special conditions for an Order of Conditions for the project.
Following review and discussion of the above, Bruce Evans moved, Michael Tobin seconded the
motion to close the hearing, approve the project with findings and special conditions as drafted, and
issue an Order of Conditions. The motion was approved by Vice Chairman Bruce Evans,
Commissioners William Klein, Michael Tobin and Alternate Member Virginia lannini.
Chairman Paul Wightman abstained.
Pineland Park Association proposes to restore native plant communities by removing
invasive non-native and aggressive native plant species and planting native vegetation, in
and within 50 feet coastal resource areas, on 0 Seaway Road, Assessors' Map 79, Parcel
108 (formerly 6/21).
Brewster Conservation Commission Minutes May 21, 2014 5
The project proponent submitted a written request to continue the above referenced hearing to
June 17, 2014. Michael Tobin moved, Bruce Evans seconded the motion to continue the hearing
to June 17, 2014. The motion was approved unanimously.
Citizens' Forum
There was no public comment at this time
Discussions/Report of the Conservation Administrator
1. Request for Conservation Commission support of HB4009-Joint Committee on
Environment, Natural Resources &Agriculture—An Act providing for the
preservation and improvement of land, parks, and clean energy in the
Commonwealth
The Conservation consensually agreed to lend its support to HB4009 under MA General
Law.
2. Fertilizers
At the public hearing of May 7, 2014, the Commission consensually agreed to enact a
standard special condition in Orders of Conditions disallowing fertilizers within 100 feet of
wetlands. The Commission will finalize the text of this condition at the next available
meeting.
3. Reschedule Work Session for Comprehensive Permit(40B) Application, 13-22
Cape View Development LLC/Brewster Landing, 0 Sachemus Trail, Assessors' Map
78, Parcel 137 (formerly 15/125-2)
The Commission consensually agreed to hold a legal posted public work session for the
above on May 27, 2014.
4. Ocean Edge Golf Course; Assessors' Map 89 Parcel 1, (27 P 39), ongoing
maintenance of golf course
The Conservation Administrator explained that the Commission issued a Certificate of
Compliance for this Order of Conditions SE 9-1347 in 2011.
He observed that recently workers hired by the owner altered jurisdictional areas. The
property owner has since hired an environmental consultant to implement a maintenance
plan for the golf course. The owner will address this issue in detail with the Conservation
Commission as to permitting requirements, at the next available meeting.
5. Brewster Conservation Day
Commissioners are to contact Natural Resource Director Chris Miller.
At 8:45 PM, Michael Tobin moved, Bruce Evans seconded the motion to adjourn the meeting.
The motion was approved unanimously.
The meeting adjourned at 8:45 PM.
Carol Spade
*Note:
The words, "wetland"and"resource area"are synonymous.
The 100 and 50 foot buffer zone is the protective upland area located within 100 and 50 feet of a wetland.
Among the list of documents*for this meeting is the following:
Administrative Report of the Conservation Administrator,May 21,2014 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 May 21, 2014 6