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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