HomeMy Public PortalAboutConservation Commission -- 2014-07-15 Minutes 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) raL i=, Th:i L E.-
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 y°; 7 =i P9
Acting Chairman Michael Tobin convened the Tuesday, July 15, 2014 meeting of the Brewsler 7 4
Conservation Commission at 7:07 PM at the Brewster Town Offices, 2198 Main Street, Brewster,
MA.
Present
Commissioners Shana Brogan, William Klein, Michael Tobin, Alternate Member Virginia lannini,
Conservation Administrator James Gallagher, Natural Resources Director Chris Miller,
Department Assistant Carol Spade
Not Present
Chairman Paul Wightman, Vice Chairman Bruce Evans, Commissioners Stephen McKenna,
Hayley Winfield,
Acting Chairman Tobin 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."
Under MA General Laws Chapter 40, Section 8C
Request for approval and signatures:
Brewster Conservation Trust-Conservation Restriction: Windmill Meadows II, 0
Main Street Assessors' Map 26/25
Having reviewed the above referenced Conservation Restriction, William Klein moved,
Shana Brogan seconded the motion to accept, by authority of M.G. L. 40, Section 8C, the
Conservation Restriction from the Trustees of the Brewster Conservation Trust. The
motion was approved unanimously by Virginia lannini, Shana Brogan,William
Klein and Michael Tobin. The Commissioners signed the Acceptance of Grant
document.
Request for signatures:
Compact of Cape Cod Conservation Trusts, Inc. Earthbound Cartway Conservation
Restriction—Exhibit B acknowledging this natural resources inventory...to be an
accurate depiction of the Premises under the Conservation Restriction at the time
of granting,Assessors' Maps 12/97,12/98, 13/111
Having reviewed the above referenced Conservation Restriction, the Commissioners
signed the Acceptance of Grant document.
Request for review and comments:
Proposal from the Brewster Conservation Trust to the Town of Brewster for a Joint
Huckleberry Hill Public Walking Trail—East of Anglers Carty,AKA Old Owl Pond
Road
Peter Johnson represented the Brewster Conservation Trust regarding the proposal of a
public walking trail on property owned by the Brewster Conservation Trust(BCT)and the
Town of Brewster; both of which are under the care, custody and control of the
Brewster Conservation Commission Minutes July 15, 2014 1
Conservation Commission. Displaying a map of the area which is east of Nickerson State
Park and south of Owl Pond, he explained that Mr. Miller, Mr. Gallagher, Mark Robinson,
Executive Director of the Compact of Conservation Trust and he, among others, have
walked on the property to determine an appropriate formal public walking trail which
would fall only within this BCT and town land.
At this time, Mr. Johnson requested the Conservation Commission comment on and
endorse the creation of this trail.
William Klein moved, Shana Brogan seconded the motion to approve creation of the
Huckleberry Hill Trail. The motion was approved unanimously by Shana Brogan,
William Klein,Virginia lannini and Michael Tobin.
*Documents Discussed:
1. June 20,2014 memo from Compact of Cape Cod Conservation Trust to Chris Miller,Brewster
DNR,James Gallagher,...,Proposal
2. Proposed Huckleberry Hill Trail,E.Brewster...3 maps
Public Hearings
Request for Determinations of Applicability
National Grid requests determinations as to whether the work—gas main extension and
service connection within 100 feet of inland wetlands,and the areas -are subject to the
Wetlands Protection Act and jurisdiction of the BWP By-law, on and about 85 Olde Owl
Pond Road,Assessors' Map 137, Parcels 75 and Various (formerly 31 Various).
Requests for Determination of Applicability
Summary of Applicant Testimony
Bradford P. Malo, Coastal Engineering Company, Inc., represented the applicant. Mr. Malo
described the resource areas, inland wetland/bog, and the project, including the method of
installation, within the existing road layout and onto the property on 85 Olde Owl Pond Road, as
contained in the Request for Determination and accompanying plan*.
Summary of Staff/Conservation Commission Comments
Commission concerns included questions on the proximity of the project to the wetland,
excavation methods, and assurance that trees will not be removed.
Summary of Public Comments
There was no public comment.
As Mr. Malo satisfied all Commission concerns, William Klein moved, Shana Brogan seconded
the motion to close the public hearing and issue determinations, as shown:
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
Vegetated Wetland
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 Shana Brogan,William Klein,Virginia
lannini and Michael Tobin.
*List of documents submitted for the Request for Determination and discussed at this hearing
1. Site Plan,National Grid Site Sketch Showing Proposed Gas Mail Extension and Service,Coastal
Engineering Company,Inc.,6/27/14
Notices of Intent
Brewster Conservation Commission Minutes July 15, 2014 2
(Continued Hearing) 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).
Eligible voters: All. Hearing opened May 21,2014(no testimony taken),June 17(no testimony).
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
Matt Farrell, J. M. O'Reilly, Inc., and Caitrin Higgins, Wilkinson Ecological, Inc., represented the
applicant. Catherine Frissora, Pineland Park Association, Inc. attended. As detailed in the Notice
of Intent, narrative Land Management/variance request and accompanying plans* Ms. Higgins
described the coastal resource areas (coastal bank, dune and beach) and buffer zone and the
project at hand. She named and described the existing invasive plants proposed for removal,
and the proposed replacement to restore a native maritime dune plant community. She stated
that invasive plants are out-competing the native plants; primarily in the upper portions of the
coastal bank.
She stressed that native plants, such as those proposed, stabilize resource areas such as coastal
banks with fibrous roots lacking in many invasive plants, and prevent erosion and provide an
infiltration and stormwater function and improve wildlife habitat diversity.
Ms. Higgins explained that the project proposes native bayberry, Virginia rose, eastern red cedar
and other grasses and forbs appropriate for the area in addition to plants such as American
beach grass on the lower portion of the bank. Additionally, the applicant proposes to construct a
recreational kayak rack with native little blue stem underneath near the existing parking lot to
deter coastal dune impaction from kayaks.
Summary of Staff/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site plan,
at this time.
Questions on work protocol included specifics on the proposed projects mechanical and
herbicide treatment, and erosion control methods. Also asked was the reason the applicant does
not propose to remove all of the existing non-native Rugosa rose, and specifics of the fencing
depicted on the plan.
Ms. Higgins responded that the project proposes mechanical invasive species removal where
possible and direct herbicide application to the plant stems in lieu of foliar spray where not, and
clarified the erosion control method. She added that t he Pineland Park Association propose to
remove Rugosa rose impacted by invasive vines, but enjoys the species, so some will remain.
She stated the fence is existing and is proposed to be extended to delineate the naturalized area
Summary of Public Comments
There was no public comment.
Following review, William Klein moved, Shana Brogan seconded the motion to continue the
hearing to August 5, 2014 for the Conservation Administrator to draft findings and special
conditions for an Order of Conditions for the project, including a condition allowing for the fence
extension, as discussed. The motion was approved unanimously.
*List of documents submitted for the Notice of Intent and discussed at this hearing:
1. Wilkinson Ecological Design Land Management Plan 0 Seaway Road,rev.5/25/14,and revision,7/2/14
2. Pineland Park Association,Inc....Restoration Plan rev.7/2/14
3. Pineland Park Association...J.M.O'Reilly...Existing Condition Plan 4/25/14
4. Rare Species,310 CMR 10.59 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
Brewster Conservation Commission Minutes July 15, 2014 3
(Continued Hearing)Judith Scherzo proposes to reconstruct an existing rock revetment
coastal engineering structure along three properties (a total of 95 linear feet), and
reconstruct an existing stone ramp; on 0 Winslow Landing, 22 Ring Rock Road and 12
Ring Rock Road, Assessors' Map 91, Parcels 2, 3 and 4(formerly 711, 3, 5).
Eligible voters: Brogan,Evans,Klein,McKenna,Tobin,Winfield,(lannini)Hearing opened on March 4,2014(no
testimony taken),continued to March 18(testimony taken),May 7(testimony taken),June 17(no testimony).
Summary of Applicant Testimony
Robert Perry, PE, Cape Cod Engineering, Inc., represented the applicants. Applicant/owner
Judith Scherzo attended. Mr. Perry stated the following:
• Only the terminus ("return") of the revetment reconstruction is proposed on the
easternmost property, 12 Ring Rock Road. Due to this fact and because lateral sand
movement is primarily west to east on the coastal bay in Brewster, he again requested as
on May 7*, that the Commission not require the owner of 12 Ring Rock Road to apply
sand to 12 Ring Rock Road.
• Mr. Perry requested the Commission require an annual sand fill based on the calculations
contained in a proposal*to the Commission dated July 6, 2014 (48 cubic yards/year), as
opposed to the calculations recommended by Commissioner McKenna at the hearing of
March 17*.
• During some years, due to coastal conditions, the beach fronting the subject properties
may have an adequate amount of sand. Mr. Perry repeated his request of May 7*, that in
these cases the Commission allow them the option of donating the annually required
sand to nourish the coastal beach at a bay property off-site, and that this be allowed as a
component of the Order of Conditions for the subject project.
He further requested that as the revetment enlargement is on 22 Ring Rock Road, owner
Judith Scherzo be responsible for contributing approximately 43 cubic yards of sand fill
annually, and the Winslow Landing Association, the remaining 5 cubic yards if and when
that component of the project commences.
Summary of Staff/Conservation Commission Comments
Mr. Tobin requested Mr. Perry compare the amount of proposed annual sand fill based on the
calculations in his July 6 letter with that recommended by Commissioner McKenna on March 17.
Mr. Perry responded that the proposed amount of annual fill contained in the July 6 letter is
approximately half that requested by Mr. McKenna.
Commissioner Brogan asked Mr. Perry if chipped stones are included in the proposed revetment
enlargement. Referencing construction note 15 of the site plan, Mr. Perry stated that incidental
gaps and spaces within the armor stone face are proposed to be filled with stone chips applied to
stay firmly embedded in the revetment.
David Lahive and James Walsh, members of the Winslow Landing Association, attended, stating
(as was discussed at the hearing of March 18*)that the association members have not
determined whether it has the fiscal means to build the stone ramp component as part of the
project. Mr. Walsh stated, however, that they would like to keep the option open.
Mr. Gallagher clarified that if an Order of Conditions is issued, it will be recorded against the three
properties; 0 Winslow Landing, 22 Ring Rock Road and 12 Ring Rock Road, Assessors' Map 91,
Parcels 2, 3 and 4. An Order of Conditions includes an option for amendment should the
applicant request a project of lesser environmental impact or a smaller project than what is
approved.
William Klein moved, Shana Brogan seconded the motion to continue the hearing to August 5,
2014, to allow the Conservation Administrator to draft findings and special conditions for an Order
Brewster Conservation Commission Minutes July 15, 2014 4
•
of Conditions based on the Commission's approval of all of the applicant's requests as described
above. Included will be conditions specific to the option of construction of the proposed stone
ramp, to sand nourishment to coastal beaches at bay properties off-site, and the sand
nourishment responsibilities of owners of 22 Ring Rock Road and 0 Winslow Landing. The
motion was approved unanimously.
*List of documents submitted for the Notice of Intent and discussed at this hearing:
1. Notice of Intent
2. Topographic Plan Showing Proposed Re-construction of an existing stone access ramp,revetment
returns and additional stabilizing measures...22 Ring Rock Road,2/13/14
3. Cape Cod Engineering,Inc.,July 6,2014 letter to Brewster Conservation Commission Re:Judy
Scherzo—Notice of Intent...22 and 0 Ring Rock Road; Revised Beach Nourishment Protocol
4. Minutes of March 18,2014,May 7,2014
(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).
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(no testimony),April 15
(no testimony),May 21 (no testimony),June 3(no testimony),June 17(no testimony).
The project proponent submitted a written request to continue the above referenced hearing to
August 5, 2014. William Klein moved, Shana Brogan seconded the motion to continue the
hearing to August 5, 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: Brogan,Evans,Klein,Tobin(lannini)Hearing opened on April 15,2014(no testimony taken),May
7(no testimony),May 21,(no testimony,June 3(testimony taken),July 1,(no testimony).
The proponent has requested a continuance to August 5, 2014.
The project proponent submitted a written request to continue the above referenced hearing to
August 5, 2014. William Klein moved, Shana Brogan seconded the motion to continue the
hearing to August 5, 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: Brogan,Evans,Klein,Tobin(lannini)Hearing opened on April 15,2014(no testimony taken),May
7(no testimony),May 21,(no testimony,June 3(testimony taken),July 1,(no testimony).
The proponent has requested a continuance to August 5, 2014.
The project proponent submitted a written request to continue the above referenced hearing to
August 5, 2014. William Klein moved, Shana Brogan seconded the motion to continue the
hearing to August 5, 2014. The motion was approved unanimously.
Elizabeth and Brendan Walsh propose to demolish an existing dwelling and construct a
new single family dwelling,within 100 feet of coastal resource areas on 260 Seaway Road,
Assessors' Map 79, Parcel 109(formerly 6/23).
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
Keith Fernandes, J. M. O'Reilly, Inc., represented the applicants. He referenced the resource
area, coastal bank and coastal dune, and described the project, the closest disturbance which is
within 85 feet to the resource area, as contained in the Notice of Intent, narrative and site plan*...
Brewster Conservation Commission Minutes July 15, 2014 5
Summary of Staff/Conservation Commission Comments
The coastal wetland delineations, coastal dune and coastal bank, were previously confirmed by
the Conservation Commission as accurate via Order of Conditions SE 9-1634.
Commissioners expressed concern that the larger footprint dwelling closer to the wetland than the
existing will result in loss of wildlife habit, and requested a revegetation plan as mitigation for that
loss.
Further discussion centered on the Conservation Administrator's and Commissioners' on-site
observation of unauthorized removal and pruning of woody vegetation within 100 and 50 feet of
the resource areas.
Summary of Public Comments
There was no public comment.
Following review, William Klein moved, Shana Brogan seconded the motion to continue the
hearing to August 5, 2014, to allow the proponent to submit a mitigation plan for both the project
impacts and the unauthorized alteration of vegetation, showing native woody plantings in the 100
and 50 foot buffer zone drawn from the Conservation Commission's list*of acceptable plantings.
The motion was approved unanimously.
*List of documents submitted for the Notice of Intent and discussed at this hearing:
1. Site Plan,Elizabeth&Brendan Walsh,Site and Sewage...Plan,J.M.O'Reilly...6/26/14
2. J.M.O'Reilly Narrative June 26,2014
3. Rare Species,310 CMR 10.59 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
Citizens' Forum
There was no public comment at this time.
Discussions/Report of the Conservation Administrator
1. Order of Conditions SE 9-1491, Sea Pines Drive, 78/77 (6/20), Sea Pines Nesting
Survey, Dennis Minsky, July 7, 2014
Gordon Peabody and Devon Kittredge, Safe Harbor environmental services, attended as
representatives for the applicant, presenting the above captioned nesting survey
performed and written by naturalist Dennis Minsky in accordance with the following
special condition of the Order of Conditions:
B14. To protect wildlife,pruning shall not occur during the months of May,June
and July. Pruning may commence after July 15 subject to the submittal of a
comprehensive bird nesting survey,completed by a qualified wildlife biologist,
stating work will not adversely affect wildlife. The nesting survey shall be
conducted in accordance to the Protocol for Conducting July Nesting Survey in
Managed Areas attachment dated May 19, 2010. In addition to birds, the nesting
survey shall also record other wildlife. The survey shall also include any
recommended corrective actions.
Mr. Peabody requested that pruning be allowed in the remainder of July. He stressed
that the vegetation plan approved in this Order of Conditions has resulted in a transition
to more lower growing, higher diversity vegetation and more areas which no longer need
pruning. He added that this is reflected in Mr. Minsky's report, which also shows that bird
activity has increased since this project began, and suggests increased activity of other
wildlife.
Mr. Gallagher described the pruning corridor categories contained in the survey. He
added that he believes this is the first report for this Order of Conditions which
documented the existence of confirmed nesting, in two working corridors (7 and 8).
Brewster Conservation Commission Minutes July 15, 2014 6
The commission discussed the survey, with Mr. Gallagher referencing the importance of
not working in confirmed nesting areas until nesting has been completed. He
recommended the Commission follow Mr. Minsky's corridor work sequence in the
following order: Areas 2-3-1-6-4-5-8-7.
The Commission consensually agreed to allow the pruning to go forth immediately,
according to the above protocol. Mr. Peabody will notify Mr. Gallagher before the work is
to occur.
Requests for Administrative Review
1. Richard Taranto,44 Old Run Hill Road 35/42 (36/18-2)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. Following discussion, Shana
Brogan moved, Virginia lannini seconded the motion to approve the project. The motion
was approved unanimously.
2. Pilgrim Pines Association, Pilgrim Pines Beach Path, 69/NA beach path pruning
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. Following discussion, Shana
Brogan moved, Virginia lannini seconded the motion to approve the projects. The
motion was approved.William Klein abstained.
3. Town of Brewster, 0 Crowell's Bog Road, 62/31 (40/71),tree removal, pruning near
power lines
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. Following discussion, Shana
Brogan moved, Virginia lannini seconded the motion to approve the project. The motion
was approved unanimously.
Discussions/Report of the Conservation Administrator(continued)
1. Consultants for Ocean Edge Vista Pruning, Order of Conditions SE 9-1571,
Blueberry Pond at Britterige Village, 89/1-3358 (27/39)
The Commission postponed the above referenced discussion.
2. Robinwood Homeowners Association, 125/41 (29/58)
Mr. Gallagher explained he received a request on the status of a past enforcement order
issued to the above association for clearing in a buffer zone to a pond, for which a
vegetation restoration plan was required but not submitted. Mr. Gallagher will research
this further and discuss it again with the Conservation Commission, and respond to the
requestor accordingly.
3. Wetland Filing Abutter Notification
The Commission postponed the above referenced discussion to a meeting in the near
future.
Show Cause Hearing/Violation
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
At the request of the Conservation Administrator, William Klein moved, Shana Brogan
seconded the motion to continue the above hearing to August 5, 2014. The motion was
approved unanimously.
At 8:40 PM,William Klein moved to convene in executive session, "to meet... as
defined in M.G.L.c. 30A, §21(a),with respect to any litigation or decision on any
public business within its jurisdiction involving another party, group or entity, not
to return to regular session. Shana Brogan seconded the vote.The Commission
Brewster Conservation Commission Minutes July 15, 2014 7
r
voted by roll call: Shana Brogan, "Aye", William Klein, "Aye", Michael Tobin,
"Aye",Virginia lannini, "Aye".
Executive Session:
Reference: Discussion of strategy with respect to litigation if an open meeting may have a
detrimental effect on the bargaining or litigating position of the public body and the chair
so declares; 45 Candlestick Lane; Map 15, Parcels 16 &42(formerly Map 21, Parcels 29-5
&26-1)
The open session portion of this meeting adjourned at 8:40 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 are the following:
Administrative Report of the Conservation Administrator,July 15,2014 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 July 15, 2014 8