HomeMy Public PortalAboutConservation Commission -- 2016-09-06 Minutes Brewster Conservation Commission Minutes—Meeting Under
Massachusetts General Law Chapter 40, Section 8C,
Massachusetts General Law Chapter 131, Section 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 Bylaw(BWP Bylaw)
Wetland Regulations 1.01 —9.15
Call to Order
Vice Chairman Michael Tobin convened the Tuesday, September 6, 2016 meeting of the
Brewster Conservation Commission at 7:00 PM at the Brewster Town Offices, 2198 Main Street,
Brewster, MA.
Present
Vice Chairman Hayley Winfield, Commissioners Bruce Evans, William Klein, , Peter Wells,
Conservation Administrator Noelle Bramer, Natural Resources Director Chris Miller, Department
Assistant Carol Spade
Not Present
Chairman Michael Tobin, Commissioner Nicole Smith
Vice Chairman Winfield 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
Requests for Determinations of Applicability
Robert Schlegel and Janet Fogel request determinations as to whether the work—planting
approximately 500 square feet of native Bearberry and native grasses within 50+-feet of
an inland wetland, and the area -are subject to the Wetlands Protection Act and
jurisdiction of the BWP Bylaw. Property is on 286 Landing Drive, Assessors' Map 18,
Parcel 3 (formerly 48/1-3).
Summary of Applicant Testimony
Robert Schlegel and Janet Fogel attended.They described the resource area and project as
contained in the Request for Determination*. They stressed that the Inland Bank resource area
leading to the pond is presently eroding from lack of vegetation, and they hoped the native
vegetation would serve to contain it. Mr. Schlegel added that the native grasses they intend to
plant are a mix known as"Cape Harmony`.
Summary of Staff/Conservation Commission Comments
The boundaries of resource areas are not confirmed by the Commission.
Commissioners remarked that appropriately vegetated Inland Banks very positively affect
resource areas in controlling erosion and enhancing wildlife habitat. The Commission
consensually agreed with Vice Chairman Winfield to require that the Bearberry plants be at
minimum, one gallon size to ensure root development effective for plant survival.
Summary of Public Comments
The public had no comment.
Brewster Conservation Commission Minutes September 6, 2016 1
William Klein moved, Bruce Evans seconded the motion to close the public hearing and issue
determinations, as shown:
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).
The Conservation Administrator will include a letter to the owner relative to conditions.
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 Bylaw.
The Commission unanimously approved the motion.
*Ust of documents submitted for the Request for Determination and/or discussed at this hearing
1. "Cape Harmony"(Deschampsia flexuosa-wavy hairgrass,coastal hairgrass)
2. Site Plan(untitled portion showing proposed vegetation)
National Grid requests determinations as to whether the work—installation of a gas main
within existing paved roads, and the areas -are subject to the jurisdiction of the BWP
Bylaw. Property is on Slough Road, Satucket Road and Stony Brook Road, (current)
Assessors' Maps 9, 10, 11, 12, 13, 19, 23, 24, 35, 36 and 47.
Brad Malo, Coastal Engineering Company, Inc., represented the applicant. He described the
approximately fifteen (15) resource areas and the project along all of the work area as contained
in the Request for Determination, displayed plan and accompanying photos showing the process
of excavation*. He stressed that extra siltation barrier protection is planned very close to
resource areas; for example next to the Stony Brook Millsite on Stony Brook Road.
Mr. Malo described the Brewster Code of the Town of Brewster Chapter 172,
Brewster Wetlands Protection Bylaw(BWP Bylaw)as being"inconsistent"with the ACT, under
which he interpreted this activity is exempt, but that it is exempt under the By-law only under certain
conditions; therefore, he notified Conservation Administrator Bramer prior to filing the application. He
relayed to the Commission their discussion of the proposal and his subsequent filing.
Summary of Conservation Commission Comments
In answer to a question from Commissioner Bruce Evans as to the reason the BWP By-law is
"inconsistent"with the ACT, Ms. Bramer explained the following for his information regarding the
By-law, which is more environmentally protective than the ACT:
§ 172-3. Exemptions.
"The permit and application required by this chapter shall not be required for maintaining,
repairing or replacing an existing and lawfully located structure or facility which is used in
the service of the public to provide electric, gas, ...provided that written notice has been
given to the Conservation Commission prior to the commencement of work that the
structure or facility will not be, in the opinion of the Conservation Commission,
substantially changed or enlarged, and provided that any work done conforms to the
performance standards and design specifications in regulations adopted by the
Conservation Commission."
Summary of Public Comments
Mr. Paul Gasek, an abutter to a portion of the project, expressed environmental concerns with
regard to the proposal; particularly in the area of an existing flume, or existing pipe under the road
at the intersection of Stony Brook Road and Paine's Creek Road.
Mr. Gasek described and stressed his deep dismay over the work process by National Grid
during installation of a previous gas main in this area, and requested that the Conservation
Commission ensure all responsible entities retained for the project by National Grid respect all
environmental and other interests, including historic.
Brewster Conservation Commission Minutes September 6, 2016 2
The Conservation Administrator stated she will relay to Patrick Ellis, Superintendent of the
Brewster Department of Public Works, Mr. Gasek's concerns.
Summary of Staff Comments
Natural Resources Director Miller also stressed the importance of the environmentally sensitive
Stony Brook Millsite area, and that the project not impact resource areas. He believed the time of
year of the project; i.e., avoiding construction during the annual vernal spawning of Herring
wildlife, to be especially crucial.
William Klein moved, Peter Wells 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
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).
The applicant shall install erosion control measures, including straw wattles/bales around
catchment basins. Once erosion control measures are in place,applicant shall schedule a
site visit to ensure appropriate installation.
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 Bylaw.
The Commission unanimously approved the motion.
*List of documents submitted for the Request for Determination and discussed at this hearing
1. Coastal Engineering Company Site Plan,National Grid Slough Road and Satucket Road(7 Sheets)
David and Diane Valcourt request determinations as to whether the work—construction of
an addition described as a three season porch, is subject to the Wetlands Protection Act
and jurisdiction of the BWP Bylaw. Property is on 96 Deer Path Circle, Assessors' Map
137, Parcel 46 (formerly 31/81).
Laura Schofield, Schofield Brothers of Cape Cod, represented the applicants. Diane Valcourt attended. Ms.
Schofield described thoroughly, the resource area and the project as contained in the Request for
Determination, site plan and Field Delineation Forms*.
Summary of Staff/Conservation Commission Comments
The Commission reviewed the Conservation Administrator's comments in the Administrative
Report.
Summary of Public Comments
The public had no comment.
William Klein moved, Peter Wells seconded the motion to close the public hearing and issue
determinations, as shown:
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).
The applicant shall schedule a site visit with the Conservation Administrator,after erosion
control measures are installed and previous to any work on the site.
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 Bylaw.
Brewster Conservation Commission Minutes September 6, 2016 3
The Commission unanimously approved the motion.
*List of documents submitted for the Request for Determination and discussed at this hearing
1. Schofield Brothers of Cape Cod...Site Plan,of Land...96 Deer Path Circle
2. 310 CMR 10.55 Delineation Field Data Forms
(Continued Hearing) LTV Realty Trust II proposes to demolish an existing building and
construct a replacement building within 50 feet of inland wetlands on 1073 Main Street,
Assessors' Map 37, Parcel 61 (formerly 19/52-3).
Eligible voters:Evans,Klein(signed adjudicatory form),Winfield Hearing opened April 5,2016(testimony taken)
continued to May 10(no testimony),May 24(testimony taken)June 7(no testimony),June 21 (no testimony)July
12(no testimony)July 26(no testimony),August 2,(testimony taken),August 16(no testimony)
Robert Perry, PE, submitted a statement in writing to the Commission that as representative for
the owner the applicant accepts the proposed findings and special conditions of the Conservation
Commission for this project under the WPA and BWP By-law.
Following review of findings and special conditions under the WPA and BWP By-law, William
Klein moved, Bruce Evans seconded the motion to close the hearing, approve the project with
findings and special conditions as drafted, and issue an Order of Conditions. The Commission
unanimously approved the motion. Eligible voters: Bruce Evans, William Klein,Hayley Winfield(3-0)
(Continued Hearing) Patricia Ellis proposes to upgrade a septic system within 50 feet of
coastal and inland resource areas, on 30 Nancy May Path, 91/14-802 (formerly 7/11-5).
Eligible voters:Evans,Klein,Winfield Hearing opened August 2,2016(testimony taken),August 16(no
testimony)
Jason Ellis, PLS, submitted a statement in writing to the Commission that as representative for
the owner the applicant accepts the proposed findings and special conditions of the Conservation
Commission for this project under the WPA and BWP By-law.
Following review of findings and special conditions under the WPA and BWP By-law, William
Klein moved, Bruce Evans seconded the motion to close the hearing, approve the project with
findings and special conditions as drafted, and issue an Order of Conditions. The Commission
unanimously approved the motion. Eligible voters: Bruce Evans, William Klein,Hayley Winfield(3-0)
Neil Shifman and Deborah Rau request a variance from the BWP By-law to construct
additions to an existing dwelling within 50 feet of inland wetlands, on 87 North Pond Drive,
Assessors' Map 89, Parcel 58 (formerly 27/84-1).
The project is located on the MA Natural Heritage and Endangered Species Map* as an area of
rare plant and wildlife habitat and rare wetlands wildlife.*
Summary of Applicant Testimony
John O'Reilly, PE, PLS, J. M. O'Reilly, represented the applicants. Mr. O'Reilly described the
resource areas and project as contained in the Notice of Intent, narrative, variance request,
Delineation Field Data Forms and displayed plan*. At this time, Mr. O'Reilly submitted dated
photos of the site and discussed each photo to clarify concerns of the Commission and staff
relative to site alterations and past wetland filings. He stated that Neil Shifman and Deborah Rau
did install a stone (pervious) patio without a valid wetland permit within 50 feet of wetlands, and
are prepared to address this violation "after-the-fact".
Summary of Staff/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site
plan*.
Preliminary Commission discussion centered on Mr. O'Reilly's comments to the Commission
relative to past alterations.
Brewster Conservation Commission Minutes September 6, 2016 4
Commissioners essentially agreed the unauthorized patio violation may be addressed via the
subject Notice of Intent.
Commissioners consensually agreed that the four native pine trees within 50 feet of wetland
areas proposed for removal shall not be removed.
Also, for mitigation, the owner shall plant in the 50 foot buffer zone, diverse species (as opposed
to a monoculture) of shrubs/trees; chosen from the Cape Cod Cooperative Extension Service
(www.capecodextension.org) list of acceptable plantings for fresh water buffer zones; depicting
the species, size and natural spacing of plants appropriate for this environment.
Commissioner(s) preferred the replacement be three (3) shrub or tree species for each tree
removed in both the 100 and 50 foot buffer zone.
Additionally, the Commission consensually concluded an existing flood light must be removed or
placed so that it complies with Conservation Commission conditions on lighting under the BWP
By-law:
A18. Exterior lights on the structure shall be directed downward and shielded so
the light does not illuminate wildlife habitat in jurisdictional areas. Spotlights and
floodlights shall not be installed within the 100 foot buffer zone of a resource area;
nor shall any spotlight or floodlight penetrate a resource area or 100 foot buffer
zone.
Summary of Public Comments
The public had no comment.
William Klein moved, Bruce Evans seconded the motion to continue the hearing to September 20,
2016, to allow the applicant to make all revisions as discussed, and for Response from the MA
Division of Fisheries and Wildlife, MA Natural Heritage and Endangered Species Program
(NHESP) as to the project's occurrence in and potential effect on Priority Habitat for non-wetlands
plant and wildlife under the MA Endangered Species Act(MESA), and Estimated Habitat Map of
Rare Wildlife under the WPA.
The Commission unanimously approved the motion.
*List of documents submitted for the Notice of Intent and discussed at this hearing:
1. J.M.O'Reilly...Site Plan,87 North Pond Drive,8/18/16 Narrative,Variance Request
2. 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
3. 310 CMR 10.55 Delineation Field Data Forms
Citizens' Forum
The public had no comment at this time.
Show Cause Hearings/Violations
1. George Oliver 38 Captain Baker Road, Assessors' Map 72, Parcel 19, dock
(formerly 41/65).
• Enforcement Order Ratification
Ms. Bramer stated that she has communicated with representative(s) of the owner
regarding the dock, and was informed the owner will submit a wetland application to re-
build the dock in compliance with wetland laws during the early part of the year 2017.
Bruce Evans moved, William Klein seconded the motion to ratify the
Enforcement Order. The Commission Unanimously Approved the motion.
Discussion
Brewster Conservation Commission Minutes September 6, 2016 5
Refuse disposal contamination within 50-0 feet of wetlands on or near 90/16 (14/36-2),
0 Winslow Landing Road, 90/15(14/36-1), 35 Winslow Landing Road, and 89/18 (15/107)
north of Foster Square, 2639 Main Street, 89/18 (15/107)
The Conservation Administrator informed the Commission of an area of existing refuse
resulting from years of disposal. The refuse is currently at depths of from ten to twenty feet,
and composed of plastic bottles, plates, glass bottles, soda cans and other food related
items. The disposal area is in and within 50 feet of wetlands, at or near all of the above
locations. It is interspersed with layers of vegetation which have grown between the debris.
She stated that the disposal emanates from Foster Square; most likely on the part of various
business tenants of the owner and others.
The Conservation Administrator stated she has recently been addressing this concern with
representatives of Cumberland Farms, one of the tenants at Foster Square, who is in the
process of town permitting for an expansion to the commercial institution, on filing a permit
with the Conservation Commission to remove the debris.
The Commission directed the Conservation Administrator to write to the owners of the three
properties which include the owner of Foster Square, that the activity, of which they may be
unaware, is subject to protection under the 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 Bylaw(BWP Bylaw)Wetland Regulations 1.01 —9.15, mandating that all of the
disposed materials be removed from the buffer zone and wetland area, and that no further
such activity shall occur.
Requests for Administrative Review
1. Town of Brewster...test to determine soil conditions and depth to groundwater,
north end of Crosby Lane
Natural Resources Director Miller informed the Commission that he met publically with
abutters and nearby property owners with regard to the above.
Norman Daniels, 19 George Darby Cartway, 33/41 (36/64) removal of dead pitch
pine
As contained in her Administrative Report and accompanying photos, the Conservation
Administrator believed the two above referenced projects meet parameters for activities
under the Commission's Administrative Review process, and approved the projects under
Administrative Review. Following discussion, William Klein moved, Peter Wells
seconded the motion to ratify the Conservation Administrator's decision on the projects.
The Commission unanimously approved the motion.
Review and Approval of Minutes
1. July 26, 2016
2. August 2, 2016
3. August 16, 2016
4. Review and Approval of Minutes
Having reviewed the above referenced minutes, William Klein moved, Bruce Evans
seconded the motion to approve them as written. The Commission unanimously
approved the motion.
Report of the Natural Resources Director
The Natural Resources Director had no report at this time.
Report of the Conservation Administrator
The Conservation Administrator addressed issues as contained in her Administrative
Report listed as items 1, 2, 3 and 4.
Brewster Conservation Commission Minutes September 6, 2016 6
Eversource Road Access Maintenance—
Denise Bartone, representative, clarified that Eversource proposes no equalizer
pipes to transfer runoff from roadways, and will traverse no wetland areas during
maintenance.
42 Warren Road, 38/75 (2/33)
Enforcement Order Status- Plantings were completed via Enforcement Order.
94 Upland Circle, 127/19 (10/20-49
Enforcement Order status and request—Plantings to mitigate for unauthorized
pruning are now completed; owner seeks authorization and under supervision of
arborist to prune as regrowth of area approved for pruning reaches 4' to 7' in height.
The Commission consensually agreed to the above contingent on careful supervision
of a licensed arborist.
18 Moldstad Lane, 57/56 (17/19), Order of Conditions SE 9-1713
Direct abutter Brewster Conservation Trust requests the Commission require a
revised plan to show work limit, etc., does not encroach on its land. Ms. Bramer will
research other issues before the Commission reaches a decision on this request.
Protection of Wetland Areas Bordering Great Ponds, M. G. L. § 45- Defined as any pond
or lake that contains more than 10 acres in its natural state.
In answer to a question on Commission direction for deterrents to pedestrian shrub removal,
to create beaches in wetland areas on neighborhood association lands next to waterbodies
designated as Great Ponds, the Commission consensually recommended associations file
wetland permits to plant native shrub vegetation and install protective fencing which does not
restrict public access under Chapter 91, The Massachusetts Public Waterfront Act for coastal
and inland waterways.
Any Topics not reasonably anticipated by the Conservation Commission Chairman
The Commission consensually supports protecting existing native plants for vista pruning projects
in lieu of wholesale removal of native plants and conversion to sandplain grassland ("heathland").
Document signatures
Work Session
Amendments; Code of the Town of Brewster Chapter 172, Brewster Wetlands Protection
By-law
Postponed
The meeting adjourned at 8:35 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:
1. Conservation Commission Approved Planting List:Cape Cod Cooperative Extension Service
(www.capecodextension.org), list of native woody plants for coastaUinland wetland buffer zones depicting the
species,size and natural spacing of plants
2. Massachusetts Department of Agricultural Resources...Invasive Plants in Massachusetts 111105
3. Administrative Report of the Conservation Administrator
4. Meeting video recording, Town of Brewster Website htip://town.brewsterma.us
Brewster Conservation Commission Minutes September 6, 2016 7