HomeMy Public PortalAboutConservation Commission -- 2014-08-19 MinutesBrewster 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 — 9.15
Call to Order
Chairman Paul Wightman convened the Tuesday, August 19, 2014 meeting of the Brewster
Conservation Commission at 7:00 PM at the Brewster Town Offices, 2198 Main Street, Brewster,
MA.
Present
Vice Chairman Bruce Evans, Commissioners Shana Brogan, William Klein, Michael Tobin,
Chairman Paul Wightman, Alternate Member Virginia lannini, Conservation Administrator James
Gallagher, Natural Resources Director Chris Miller, Department Assistant Carol Spade
Not Present
Commissioners Stephen McKenna, Hayley Winfield
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
Request for Determinations of Applicability
Louise Vivona - Miller, Trustee, The Louise Vivona - Miller Revocable Trust, requests
determinations as to whether the work — removal of three trees and replacement with
native shrubs and native trees within 50 feet, and planting a vegetable and herb garden,
ornamental garden and turf lawn within 100 feet of an isolated vegetated wetland - is
subject to the Wetlands Protection Act and jurisdiction of the BWP By -law. Property is on
76 Vesper Pond Drive, Assessors' Map 137, Parcel 77 (formerly 30/39).
Summary of Applicant Testimony
Michael Talbot, Environmental Landscape Consultants, LLC, represented the applicant, who
attended the hearing. Mr. Talbot described the resource area, isolated wetland, and the project,
as contained in the Request for Determination, project narrative* and accompanying displayed
plan* filed under the BWP By -law only.
Summary of Conservation Commission Comments
Discussion included questions on the specific species of non - native plants proposed within 100
feet of the isolated wetland.
In answer to a question from Commissioner Evans as to whether the bright blue flowered
hydrangeas growing extensively in gardens on Cape Cod are native, Mr. Talbot stated that this
species, Hydrangea macrophylla, is not native to the United States; rather, it is an exotic plant,
native to Japan.
Brewster Conservation Commission Minutes August 19, 2014
Mr. Talbot explained that two hydrangea species are native to the southern and central
Appalachian Mountains (eastern) United States); one which survives well on Cape Cod is
Hydrangea quercifolia; the common name is °oakleaf' hydrangea.
Summary of Public Comments
There was no public comment.
Bruce Evans moved, Michael Tobin seconded the motion to close the public hearing and issue
determinations, as shown:
Negative Determination
1. The area described in the Request is not an area subject to protection under the Act or the 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.
The motion was approved unanimously by Bruce Evans, Shana Brogan, William Klein,
Michael Tobin and Paul Wightman.
*List of documents submitted for the Request for Determination and discussed at this hearing
1. Project Narrative
2. Site Plan, Environmental Landscape Consultants, LLC Vivona- Miller 76 Vesper Pond Drive Landscape
Plan ... 7/22/14
Allen Family Real Estate Nominee Trust, c/o Deborah Allen requests wetland delineation
confirmation, and whether the work- upgrade of a septic system and the area - are subject
to the Wetlands Protection Act and jurisdiction of the BWP By -law. Property is on 1929
Main Street, Assessors' Map 57, Parcel 8 (formerly 17/31).
Requests for Determination of Applicability
Note: The applicant did not submit required proof that abutters to the following property had been
notified of this hearing in accordance with the BWP By -law. The Commission allowed the hearing
to go forth at this time and the applicant shall submit required documents on the following day.
Summary of Applicant Testimony
Andrew Garulay, Registered Landscape Architect, Down Cape Engineering, Inc., represented the
applicant. He described the resource areas Isolated Vegetated Wetland, Bordering Vegetated
Wetland, Riverfront and 200 -foot Riparian Zone, and the above referenced request, as contained
in the Request for Determination and accompanying displayed plan".
Summary of Staff Comments /Conservation Commission Comments
Mr. Gallagher stated the Commission might consider for protection of the Isolated Vegetated
Wetland, a condition that the edge be delineated by permanent markers and that all mowing
within the Isolated Vegetated Wetland cease. The Commission consensually agreed to include
such a condition in its determination.
Other discussion included a question on whether the septic system upgrade will require tree
removal, affirmation from the applicant that the intent is not to remove trees, and the
Commission's conclusion that the positive environmental benefits of an upgraded septic system
clearly outweigh any necessary minimal vegetation removal.
Summary of Public Comments
Amy Harbeck, representing the property owner, requested clarification on the Isolated Vegetated
Wetland, where mowing shall cease. Mr. Gallagher explained the specific area is that of the
applicant's environmental consultant's staked edge of wetland.
Bruce Evans moved, Michael Tobin seconded the motion to close the public hearing and issue
determinations, as shown:
Positive Determination
2a. The boundary delineations of the following resource areas described on the referenced plan(s) are
confirmed as accurate. Therefore, the resource area boundaries confirmed in this Determination are
Brewster Conservation Commission Minutes August 19, 2014
binding as to all decisions rendered pursuant to the Wetlands Protection Act and its regulations
regarding such boundaries for as long as this Determination is valid.
Bordering Vegetated Wetland and Isolated 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).
Mowing within the Isolated Vegetated Wetland area shall cease. If necessary, the edge of
the Isolated Vegetated Wetland as shown on the approved plan shall be delineated on the
site by permanent markers.
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 Bruce Evans, Shana Brogan, William Klein,
Michael Tobin and Paul Wightman.
*List of documents submitted for the Request for Determination and discussed at this hearing
1. Site Plan of Land ... 1929 Main Street Prepared for Allen Family RT ... rev. August 5, 2014
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 151125 -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) July 15 (no testimony),
August 5 (no testimony).
The project proponent submitted a written request to continue the above referenced hearing to
September 10, 2014. Michael Tobin moved, William Klein seconded the motion to continue the
hearing to Wednesday, September 10, 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, Chairman Paul Wightman and Commissioner Michael Tobin each signed a
"Certification of Review of Hearing Transcript" stating they thoroughly examined all
evidence received at the only previous testimonial hearing they did not attend.
Examination of evidence included visiting the site of the subject hearing, reviewing the
minutes of the hearing and reviewing all evidence received prior to said hearing.
(Continued Hearing) 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).
Eligible voters: Brogan, Klein, Winfield, lannini Hearing opened on July 15 (testimony taken), August 5
(testimony taken).
The hearing of August 5, 2014, was continued to allow the applicant to revise the plan to show
size of mitigation plantings and consideration of the other items discussed, and for the
Conservation Administrator to draft findings and special conditions for an Order of Conditions.
Summary of Applicant Testimony
Keith Fernandes, J. M. O'Reilly, Inc., represented the applicants. He referenced the plan revised
as the result of the public hearing of August 5, 2014.
During review of special conditions, Mr. Fernandes requested an amendment to the special
condition which requires all roof runoff on the dwelling to be directed into protective trenches or
wells, to be specific only to portions of the dwelling within 100 feet of wetlands. He also requested
Brewster Conservation Commission Minutes August 19, 2014
the condition that the driveway shall remain pervious be removed, as the driveway is not within
100 feet of the coastal resource area.
Following discussion of the draft findings and conditions, including the following:
Coastal Bank, 310 CMR 10.30(5): Portions of the proposed work include a new building
located within 100 feet landward of the top of a coastal bank. The Brewster Conservation
Commission finds that the Order of Conditions and the Certificate of Compliance shall
contain the specific condition: 310 CMR 10.30(3), promulgated under M.G.L. c. 131, § 40,
requires that no coastal engineering structure, such as a bulkhead, revetment, or seawall
shall be permitted on an eroding bank at any time in the future to protect the project allowed
by this Order of Conditions
A39. 310 CMR 10.30(3), promulgated under M.G.L. c. 131, § 40, requires that no coastal
engineering structure, such as a bulkhead, revetment, or seawall shall be permitted on an
eroding bank at any time in the future to protect the project allowed by this Order of
Conditions.
A40. Section 2.05 of the Wetlands Regulation, promulgated under the Brewster Wetlands
Protection By -law, requires that no coastal engineering structure, such as a bulkhead,
revetment, or seawall shall be permitted on an eroding bank at any time in the future to
protect the project allowed by this Permit.
Michael Tobin moved, Shana Brogan seconded the motion to close the hearing, approve the
project with findings and special conditions as amended, and issue an Order of Conditions.The
motion was approved by Commissioners Shana Brogan, William Klein, Michael Tobin and
Paul Wightman. Bruce Evans abstained.
"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... rev. 8/6/14
Citizens' Forum
There was no public comment at this time.
Discussions /Report of the Conservation Administrator
1. Ocean Edge Order of Conditions SE 9 -1571, 89/13358 (27/39) Blueberry Pond Oversight
Consultant for Vista Pruning, Review Consultant Proposals
The Commission reviewed five proposals` for an independent consultant for on -site
consultation, over -site and /or environmental monitoring with regard to the above referenced
Order of Conditions in accordance with its special condition A19; Invasive Species
Management/Pruning.
Michael Talbot, Environmental Landscape Consultants, Tom Devane and Michael Ball,
representing the applicant, attended.
Following discussion among Commissioners, the Conservation Administrator and the
applicant, Bruce Evans moved, William Klein seconded the motion to approve Paul Shea,
Independent Environmental Consultants, Inc. The motion was approved unanimously by
Commissioners Bruce Evans, Shana Brogan, William Klein, Michael Tobin and Paul
Wightman.
"Documents reviewed - Proposals from:
• Paul Shea, Independent Environmental Consultants, Inc.
• Ellis N. Allen, Registered Consulting Arborist
• Peter M. Childs, Consulting Arborist
• Nicholas Crawford, Land Management Advisor, Jenick Studio
• Douglas Guey -Lee Environmental Consultant
2. Order of Conditions SE 9 -1489, 0 Main Street, 26/31 (formerly 20/10) — request for
release of consultant advisory fee
As recommended by the Conservation Administrator, Michael Tobin moved, William Klein
seconded the motion to release the balance of the consultant advisory fee to the property
owner. The motion was approved unanimously.
Brewster Conservation Commission Minutes August 19, 2014 4
3. Sea Pines Condominium Association Amended Order of Conditions SE 9 -1491, 78/77
(6/20) review memo request` from Gordon Peabody
Gordon Peabody, Safe Harbor Environmental Management, attended as representative for
the applicant. He submitted copies of a brochure created by Safe Harbor* on stabilizing
coastal banks.
Mr. Peabody explained that removing existing invasive vegetation to create Safe Harbor's
"maritime heathland" has resulted in bank erosion requiring the steep slope stabilization
methods described and depicted in the brochure.
Mr. Peabody stated that the goals of Safe Harbor in creating the "maritime heathland" as
described by Safe Harbor in its request for an Amended Order of Conditions were as follows:
1. To deter human activity within 50 feet of the coastal bank;
2. To eliminate the owners' past practice of altering /cutting the existing native shrub
vegetation to achieve views to the bay from their condominium units;
3. To control invasive plant species by planting a high diversity of native coastal woody
and herbaceous plants.
Mr. Peabody added that some (other) environmental experts have suggested planting
heathlands for people desiring ocean views. The state of Massachusetts recognizes
heathlands as rare globally and experts believe heathlands existed early on Cape Cod and
on other landforms similar to Cape Cod.
He stated that the first areas approved in this Amended Order of Conditions (areas 3 and 4)
are stabilized with diverse (coastal woody and herbaceous) vegetation which provides seeds
year -round for small mammals and birds and has thus far successfully attracted diverse
coastal wildlife species. However, he stressed that he does not want to proceed to the
second area or phase of the project without the complete support of the Conservation
Commission.
In answer to Chairman Wightman as to how long he has been creating such types of coastal
environments, Mr. Peabody responded that the project has been ongoing for three years.
Associate Commissioner Virginia lannini and Commissioner William Klein viewed the
established area earlier in the day, and stated they were impressed with and fully support the
vegetation project as planted.
William Klein moved, Michael Tobin seconded the motion to approve the second phase of the
project, as contained in condition B43 of the following special conditions of the Amended
Order of Conditions pertaining to this request:
B40. Proposed heathland communities shall be established in areas 3 & 4 on the approved plan of
record. Heathland shall be established In accordance with the approved Heathland Habitat Plant List.
B41. Existing native vegetation within the proposed heathland area shall be carefully evaluated for its
suitability for transplanting elsewhere on site to fill In locations where invasive removal has created
spaces. Native shrubs not suitable for transplanting shall be flush cut so that roots remain.
B42. Soils shall be stabilized Immediately with a staked organic goo- textile mesh applied over the
ground and an application of native maritime seed mix.
B43. Additional heathland areas (1 & 2 on the approved plan) may be established only after the initial
heathland communities (areas 3 & 4 on the approved plan) have been proven successful. Heathland
communities shall be documented In the annual reports. Additional heathland areas (areas 1 & 2)
require the approval of the Conservation Commission.
The motion was approved unanimously.
"Documents Discussed:
1. Safe Harbor Environmental Management Stabilizing Slopes, Very Steep Slopes & Coastal Banks
2. August 5, 2013 (sic) To: Brewster... Commission from Gordon Peabody Re: DEP SE 9 -1491
completion of second... maritime heathland...
Brewster Conservation Commission Minutes August 19, 2014
Abutter Notification
The Commission continued this discussion to a future date.
Request for Plan Change
1. John and Susan Kaukas, Order of Conditions SE 9 -1546, 78 Old Red Top Road,
12172 (formerly 38/116), garage
The Conservation Administrator explained the applicants' proposal for a plan change for
the foundation of an approved garage, as contained in the Administrative Report. He
stressed that the new proposed garage would entail an increase in the scope of the
Order of Conditions, as it would entail a pathway around the garage which was not
formerly approved.
Following discussion, the Commission consensually agreed that "the purpose and scope
of the new proposal has not substantially changed and /or increased "... such that the
project can be reviewed as an amendment, and to entertain a request for an amendment
to the above referenced Order of Conditions, contingent on the applicant's submittal of all
documentation in compliance with the above DEP policy and abutter notification for a
public hearing under the BWP By -law. This request will serve as an Amended Order of
Conditions Preliminary Discussion under *MA DEP DWW Policy 85 -4 for this Order of
Conditions.
Request for Extension to Order of Conditions
1. John and Susan Kaukas, Order of Conditions SE 9 -1546, 78 Old Red Top Road,
12172 (formerly 381116), garage
Following the recommendation of the Conservation Administrator, Michael Tobin moved,
Shana Brogan seconded the motion to approve the above referenced request for an
extension, under the MA ACT and BWP By -law for one year. The motion was
approved unanimously.
Requests for Certificates of Compliance
1. HKN Trust, Order of Conditions SE 9 -84, off Route 6A- Brewster - Orleans Line,
138/43 (30/18 -1)
2. HKN Trust, Order of Conditions SE 9 -1394, 36 Southern Eagle Cartway, 138/43
(30/18 -1)
Following the recommendation of the Conservation Administrator that the projects comply
with the respective Orders of Condition, Michael Tobin moved, Shana Brogan seconded
the motion to approve the above referenced Certificates of Compliance under the MA
ACT and BWP By -law. The motion was approved unanimously.
Request for Administrative Review (reconsideration)
1. First Parish Church, 1960 Main Street, 67197 (17/48 -2), storage container removal,
shed construction (in new location)
As contained in his Administrative Report, the Conservation Administrator stated that the
applicant proposes to construct the shed further from the wetland than proposed initially"
(outside the 50 foot buffer zone). He believed it now meets parameters for an activity
under the Commission's Administrative Review process. Following discussion, Michael
Tobin moved, Shana Brogan seconded the motion to approve the revised project. The
motion was approved unanimously.
(See minutes of August 5, 2014.)
Show Cause Hearings/Violations
1. Ocean Edge Resort Order of Conditions SE 9 -1530, 101 Nickerson Lane, 90/154
(14/103) unauthorized use of herbicide
Mr. Gallagher recounted his report to the Commission on August 5 of his discovery of the
effects of unauthorized herbicide application within 100 feet of wetland resources;
violations of (Condition #B 20 and 21 of Order of Conditions) and the Commission's
Brewster Conservation Commission Minutes August 19, 2014 6
-ision to have him notify Ocean Edge Resort, requesting a representative attend this
Show Cause Hearing. Mr. Gallagher explained the defoliated vegetation appeared to be
directly south of unit 101 on Nickerson Lane within the Ocean Edge Resort.
Richard Roberto, Association Manager for Ocean Edge Resort Ltd Partnership, and
Bryan Webb, Member, Board of Managers, Bay Pines Condominiums, attended. Mr.
Roberto stated that the association did not authorize this activity; unfortunately, property
owners have been known to engage independently of the association in disallowed
activities on common land.
The Commission discussed the fact that wetland violations on the part of a few
condominium owners have been known to occur on lands of common ownership in
several large condominiums throughout Brewster; and that the responsibility of the
violation is that of the condominium association or board of managers.
Mr. Roberto explained that he will send a letter to all Ocean Edge Resort property owners
relative to their responsibilities under wetland laws.
Michael Tobin moved, Shana Brogan seconded the motion to issue one ($300.00) Town
of Brewster Notice of Violation and accompanying violation notice to the violator. The
motion was approved by Shana Brogan, William Klein, Michael Tobin and Paul
Wightman. Bruce Evans voted "no ".
2. 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, Hayley Winfield moved, William Klein
seconded the motion to continue the above hearing. The motion was approved
unanimously.
Review and Approval of Minutes
1. July 15, 2014 Executive Session
Chairman Wightman was recused from review of the above referenced minutes.
Following review, Michael Tobin moved, Shana Brogan seconded the motion to approve
them as written. The motion was approved. Bruce Evans abstained.
2. August 5, 2014
3. August 5, 2014 Executive Session
The Commission postponed review of the above referenced minutes to the following
meeting.
Any Topics Not Reasonable Anticipated by the Conservation Commission Chairman
1. Conservation Restriction M. P. Renaissance, 0 Harwich Road, 63/2 (40/9-11R)
The Conservation Administrator explained that the above project was reviewed and
approved by the Cape Cod Commission, contingent upon the enactment of a
conservation restriction on a portion of the property for protection of open space. Andrew
Singer, counsel for the above proposed project, has requested the Conservation
Commission's informal opinion as to whether it would accept such a restriction.
The Commission acknowledged that it does accept appropriate conservation restrictions.
2. Property on 42 Barberry Lane, 68/13 (5/218) removal of native shrub vegetation
The Conservation Administrator observed effects of clearing at the above address.
Following discussion on the extent of native shrub species removed, the Commission
consensually agreed to issue an enforcement order with one ($300.00) Town of Brewster
Notice of Violation to the property owners.
Brewster Conservation Commission Minutes August 19, 2014 7
At 8:55 PM, Bruce Evans moved, Michael Tobin seconded the motion to adjourn the meeting.
The motion was approved unanimously.
The meeting adjourned at 8:55 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:
1. 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
2. (Brewster Conservation Commission) Acceptable Plantings for Buffers to Resource Areas
3. Administrative Report of the Conservation Administrator, August 19, 2014 meeting
4. Meeting audio recording, and video recording, Town of Brewster Website http: / /town.brewster.ma.us
Brewster Conservation Commission Minutes August 19, 2014