HomeMy Public PortalAboutConservation Commission -- 2016-11-01 Minutes Brewster Conservation Commission Minutes—Meeting Under
Massachusetts General Law Chapter 40, Section 8C, Conservation Commission Act
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
Chairman Michael Tobin convened the Tuesday, November 1, 2016 meeting of the Brewster
Conservation Commission at 7:00 PM at the Brewster Town Offices, 2198 Main Street, Brewster,
MA.
Present
Chairman Michael Tobin, Vice Chairman Hayley Winfield, Commissioners Bruce Evans, William
Klein, Nicole Smith, Peter Wells, Natural Resources Director Chris Miller, Department Assistant
Carol Spade
Not Present
Conservation Administrator Noelle Bramer
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."
Public Hearings
Requests for Determinations of Applicability
John and Kathlene Berry request determinations as to whether the work—construction of
an addition to an existing dwelling shown on submitted plans to be located within 40-feet
of inland wetlands, and the area -are subject to the Wetlands Protection Act and
jurisdiction of the BWP Bylaw. Property is on 97 Spring Lane, Assessors' Map 48, Parcel
15 (formerly 19/65).
The applicant requested in writing to withdraw this application without prejudice. The
Commission consensually approved withdrawal of the application without prejudice.
Brewster Conservation Trust requests determinations as to whether the work—creation of
a foot trail through Town of Brewster and Brewster Conservation Trust property and other
properties for passive observation and study, and the area -are subject to the Wetlands
Protection Act and jurisdiction of the BWP Bylaw. Property is on 0 Main Street Rear and
others, Assessors' Map 78, Parcel 139 (formerly 16/83), 77/11, 77113 and 77/58.
Summary of Applicant Testimony
Hal Minis, President, and Jeff Thibodeau, Land Acquisition and Management Specialist, Brewster
Conservation Trust, attended. They described the resource area—a dense, large tree
= environment evolving into shrubland and near a series of bogs, and the project as contained in
the Request for Determination and displayed plan*—a Children's Vernal Pool Nature Trail. The
trail creation/expansion involves cutting some of the shrub vegetation, and the trail is to be
approximately three feet wide and near to one mile long. It will contain an on-ground small bridge
structure for crossing a small ditch, as shown in the attachments of the Request for
Determination.
Brewster Conservation Commission Minutes November 1, 2016 1
The vernal pool on the trail has been certified as such by the MA Natural Heritage and
Endangered Species Program (NHESP). Students will.study the vernal pool wildlife, perhaps at
different times of the year.
They explained that the Eddy School Science Program has now partnered with MA Wellfleet
Audubon in this endeavor.
Summary of Staff/Conservation Commission Comments
Discussion centered on clarifying that the project will require only shrub and herbaceous
vegetation removal, all bridge components shall be composed of untreated or"ACQ" chemically
treated wood and the trail project will permit continual maintenance cutting as vegetation grows.
Summary of Public Comments
The public had no comment.
William Klein moved, Hayley Winfield 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).
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. Plan Proposed Vernal Pool Children's Trail(undated)
2. Vernal Pool Children's Trail Sketch of Proposed Wood Plant Over Ditch
Commissioner Nicole Smith was recused from the following hearing:
Notices of Intent
(Continued Hearing) Sanford and Madeline Zevon propose to install a new septic system
and well, and request a variance from the BWP By-law to demolish and rebuild an existing
single family dwelling within 50 feet of inland resource areas, and remove and rebuild
beach stairs in and within 50 feet of inland resource areas, on 40 Cranview Road,
Assessors' Map 10, Parcel 66 (formerly 38174). Eligible voters: Evans, Klein,Wells,Winfield
(Hearing opened October 18, 2016)
The Conservation Commission continued the hearing of October 18, to allow the applicant to
revise the plan, etc., as discussed at that time.
Summary of Applicant Testimony
Stephanie Sequin, PE, Ryder and Wilcox, Inc. represented the applicants. Paul Zevon attended.
Ms. Sequin enumerated the revisions to the plan following the hearing of October 18, which
included locating the entire rebuilt building, including deck, outside of 50 feet of wetlands. During
the course of discussion, Ms. Sequin stated that the applicant proposes to submit a mitigation
plan if the project is approved, prior to dwelling construction. She submitted photos*of the site as
it presently exists.
Summary of Conservation Commission/Staff Comments
During Commission discussion, Vice Chairman Hayley Winfield stated she believed the entire
dwelling must be placed 60 feet away from wetlands, so that no on-ground disturbance occurs
within the protective 50 feet buffer zone of wetlands during or after construction of the dwelling, to
Brewster Conservation Commission Minutes November 1, 2016 2
ensure all relevant interests (including aesthetic) as provided in the BWP By-law, are protected.
She further(***again) expressed concern over the dwelling's large scale within 100 feet of
wetlands.
It was the opinion of the other eligible voting Commission members that the applicant had
complied with all of the Commission's concerns/requirements expressed at the hearing of
***October 18.
Mr. Tobin stated he understands Ms. Winfield's concerns under the BW P By-law, that placing a
dwelling deck 50 feet from wetlands would logically entail that construction activity and, following
completion of the project, pedestrian activity within 50 feet of wetlands. The Commission has
historically allowed only narrow pathways and/or stairways within 50 feet of wetlands leading to
waterbodies, as shown on the applicant's proposed plan.
The Commission consensually determined that two pine trees in the 100 foot buffer zone
proposed for removal shall be replaced with four native trees or shrubs.
Natural Resources Director Miller, acting as Conservation Administrator, highly recommended the
Conservation Commission not approve the project until the Commission receives and approves a
professional mitigation planting plan which fully protects all applicable wetland interests.
Summary of Public Comments
The public had no comment.
Hayley Winfield moved, William Klein seconded the motion to continue the hearing to November
22, 2016, to allow the applicant to submit a fully protective mitigation plan for the project, showing
shrub/tree plants drawn from the Conservation Commission Approved Planting List: Cape Cod
Cooperative Extension Service (www.capecodextension.org), list of native woody plants for inland
wetland buffer zones, depicting the species, size and natural spacing of plants, in time to allow
the Conservation Administrator to draft special conditions for the Commission's review. The
Conservation Commission approved the motion.
*List of documents submitted for the Notice of Intent and discussed at this hearing:
1. Site Plan Proposed Dwelling&On-site Sewage Treatment...40 Cranview Road,Ryder&Wilcox,Inc.
10/25/16, Narrative,Variance Request
2. Photos, project site
3. —Conservation Commission Minutes,October 18,2016
Nicole Smith returned to the meeting table at this time.
(Continued Hearing) Phyllis Bursma request a variance from the BWP By-law,to nourish a
coastal resource area with sand. Property is on 0 Crocker Lane, Assessors' Map 69,
Parcel 3 (formerly 5/204-51). Eligible voters: Evans, Klein,Smith,Wells,Winfield (Hearing opened
October 18,2016)
The Conservation Commission continued the October 18 hearing to allow the Conservation
Administrator to draft findings and special conditions for an Order of Conditions for the project.
Summary of Applicant Testimony
Catherine Ricks, PE, Coastal Engineering, Inc., represented the applicant.
Ms. Ricks reviewed with the Commission, discrepancies in the Conservation Administrator's draft
special conditions.
Summary of Public Comments
The public had no comment.
Brewster Conservation Commission Minutes November 1, 2016 3
Hayley Winfield moved, Peter Wells seconded the motion to continue the hearing to November
22, 2016, to allow the Conservation Administrator time for any amendments to the draft special
conditions for an Order of Conditions for the project. The Commission unanimously approved
the motion.
Jonathan Rosenfeld and Arlene Feldman request variances from the BWP By-law,to
(demolish and) reconstruct a new, enlarged dwelling with terrace, and construct a garage
and storage area and sewage disposal system less than 50 feet of both coastal and inland
resource areas and within the DEP regulated 200 Riverfront Area; and to remove invasive
plant species—on 102 Cedar Hill Road, Assessors Map 38, Parcel 29 (formerly 2/4).
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.
John O'Reilly, J. M. O'Reilly, Inc. and Nicholas Crawford, Jenick Studio Landscape Architecture,
together with others, represented the applicants.
Mr. O'Reilly described the numerous coastal and inland resource areas surrounding the entire
project area, and the project as contained in the Notice of Intent, narrative, variance request and
displayed plan*. He acknowledged that the proposed accessary structure constitutes a garage,
additional living space and storage area.
Summary of Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site
plan*.
Primary Commission discussion over the project centered on concerns over project components
within 50 feet of resources, including the proposed garage with living space, in addition to
proposed non-native grass areas as opposed to native woody plants. Nicole Smith requested
that the garage accessory structure be moved next to the dwelling; outside of 50 feet to wetlands
to the extent possible.
Commissioners requested a clear depiction of the actual footprint of the existing dwelling vs. that
of the proposed re-build within 50 feet of resource areas.
Mr. O'Reilly maintained that the reconstructed dwelling is essentially within the footprint of the
existing dwelling, and that the garage accessory structure in the 50 foot buffer zone is proposed
to be constructed over an existing gravel covered impervious surface.
Summary of Staff Comments
Natural Resources Director Miller believed the portion of the project containing the majority of the
proposed native plant mitigation may be owned by the Town of Brewster, and requested the
applicant address this legal issue.
Summary of Public Comments
Mr. Nevelle Frankel attended. He stated he is a near-by resident, and requested confirmation
from the property owners on an issue unrelated to wetland protection.
Hayley Winfield moved, Nicole Smith seconded the motion to continue the hearing to November
22, 2016, to allow the applicant to address all concerns discussed at this hearing.
1. Footprint of existing vs. proposed dwelling clearly defined on site plan.
2. Garage moved outside of 50 foot buffer zone.
3. Removal of non-native grass within 50 feet of resource areas.
4. Legal ownership of mitigation area.
The Commission unanimously approved the motion.
*List of documents submitted for the Notice of Intent and discussed at this hearing:
Brewster Conservation Commission Minutes November 1, 2016 4
I. Site and Sewage Disposal System Plan,J.M.O'Reilly...102 Cedar Hill Road, 10/14/16,CLM Restoration
Plan,Narrative,Variance Request,Land Management Plan Crawford Land Management October 13,
2016
2. Rare Species,310 CMR 10.59 Natural H%ritage 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
Commissioner Nicole Smith was recused from the following hearing:
Mark L. Houghton requests variances from the BWP By-law, to (demolish and) reconstruct
a new dwelling, install a coastal stairway and remove invasive plant species in and within
50 feet of coastal resource areas and in the DEP regulated 200 foot Riverfront Area -on 83
Cedar Hill Road, Assessors Map 38, Parcel 27 (formerly 2/38).
Notices of Intent
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
David Lyttle, PLS, Ryder and Wilcox, Inc., and Jennifer and Nicholas Crawford, Jenick Studio
Landscape Architecture, represented the applicant. They described the resource areas and
project as contained in the Notice of Intent, narrative, variance request and displayed plan*...
Summary of Staff Comments
Natural Resources Director Miller believed the portion of the project containing the proposed in-
ground stairs and much of the proposed native plant mitigation may be owned by the town, and
requested the applicant address this legal issue.
Summary of Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site
plan*.
The Commission requested the rebuilt dwelling be reduced so that it is entirely outside of 50 feet
of wetlands, with Vice Chairman Winfield requesting that the entire dwelling be placed 60 feet
away from wetlands so that no on-ground disturbance occurs within the protective 50 feet buffer
zone of wetlands during or after construction of the dwelling, to ensure all relevant interests
(including aesthetic) as provided in the BWP By-law, are protected.
Other discussion with Mr. Lyttle pertained to the Conservation Administrator's agenda comments
regarding the proposed in-ground vs. an elevated stairway.
Summary of Public Comments
The public had no comment.
Hayley Winfield moved, Peter Wells seconded the motion to continue the hearing to November
22, 2016, to allow the applicant to address all of the Commission's concerns.
The Commission unanimously approved the motion)
*List of documents submitted for the Notice of Intent and discussed at this hearing:
4. Site Plan Showing Proposed Dwelling,83 Cedar Hill Road,date Narrative,Variance Request
5. 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
Nicole Smith returned to the meeting table at this time.
Daniel C. and Threse c. Heintzelman request to amend Order of Conditions SE 9-1702 to
revise the Land Management Plan to include management and restoration of native species
Brewster Conservation Commission Minutes November 1, 2016 5
within 100 and 50 feet of wetlands, on 96 Winterhoff Trail; Assessors Map 69, Parcel 45
(formerly 5/7).
Summary of Applicant Testimony
Jennifer and Nicholas Crawford, Jenick Studio Landscape Architecture, represented the
applicants. They described the resource area and project as contained in the amendment
request, narrative, and displayed plan*. Ms. Crawford maintained that the subject plan,
consisting of a maritime forest, heathland community and grassland edge plantings, more fully
protects wetland interests than the management plan approved under Order of Conditions SE 9-
1702.
Summary of Conservation Commission/Staff Comments
The Commission requested affirmation/clarification that only invasive plantings shall be removed.
Summary of Public Comments
The public had no comment.
Hayley Winfield moved, William Klein seconded the motion to continue the hearing to November
22, 2016, for the Conservation Administrator to draft findings and special conditions for an
Amended Order of Conditions for the project reflecting her agenda comments relative to replacing
invasive saplings with native tree/shrubs within 50 feet of wetlands, and that all native species
shall remain.
*List of documents submitted for the Request for Amendment and discussed at this hearing:
1. Site Plan, Jenick Studio Landscape and Mitigation Plan...Eldredge Surveying... 96 Winterhoff
Trail...10/14/16
2. Crawford Land Management Narrative,September 30,2016
Citizens' Forum
The public had no comment at this time.
Discussions
1. Discussion and potential vote on proposed Conservation Commission Hunting
Policy, 2016-2017
Having reviewed the above proposed policy, the Commission discussed it, with Natural
Resources Director Miller explaining that it mimics the policy of FY 2015-2016, and that
the existing policy has shown to be successful.
Hayley Winfield moved, Peter Wells seconded the motion to approve the proposed
Hunting Policy of 2016-2017. The Commission unanimously approved the motion.
The Conservation Commission will sign the approved document on November 22, 2016.
Documents discussed:
1. Brewster Conservation Commission Policy,2015-2016 Re: Hunting on lands under the
control of the Brewster Conservation Commission
2. Order of Conditions SE 9-1640, Sears Point Condominiums, construction of
shorefront protection measures/rock revetment on and within 50 feet of coastal
resources -request to address/reconsider Special Conditions A18 through A25,
regarding project access - Sears Point Drive, 57/3 (4/11)
Catherine Ricks, PE, Coastal Engineering, Inc., and Peter Mercury, representing the
Sears Point Condominiums, attended relative to the above request. Patrick Ellis,
Superintendent of the Brewster Department of Public Works, expressed in writing*,
concerns over construction access, which constitutes more than 100 heavy equipment
trips from the Breakwater Town Landing.
Discussion centered on the potential adverse effects from this bolder/sand deposition to
resource areas on the project area's westerly abutting property owned by the Brewster
Conservation Trust(BCT).
Brewster Conservation Commission Minutes November 1, 2016 6
Approval shall be contingent on the amended access area as far from said property as
possible (a minimum of 30 feet) and agreement of the change by the BCT, with special
amended conditions to be approved at the public meeting of November 22, 2016. (Hayley
Winfield moved, William Klein seconded the motion).
Documents Discussed:
November 1, 2016 letter from Patrick Ellis, Brewster DPW
Report of the Natural Resources Director
Mr. Miller reported on a large number of Atlantic saury which washed up all along Brewster's
bay beaches. Preliminary information indicated the cause was escape from larger,
predatory sea life along with the cooler water temperature.
Amended Order of Conditions Preliminary Discussion
Order of Conditions SE 9-1655, Cobbs Pond Condominium Association, 120 and 299
Wauquanesit Drive Assessors Map 57, Parcel 5 (formerly Map 17, Parcel 1) - Request for
Commission to determine whether purpose or scope of new proposal— northward
expansion of vista/management corridor- has not substantially changed and/or
increased... such that project can be reviewed as an amendment
John O'Reilly, PE, PLS, J. M. O'Reilly, Inc., attended.
Following discussion, the Commission consensually agreed 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 Bylaw.
Requests for Certificates of Compliance
John O'Reilly, PE, PLS, J. M. O'Reilly, Inc., attended.
1. J. M. O'Reilly/Keith and Dana Osborn, SE 9-923, 33 Franklyn Cartway, 50/12 (3/157)
2. J. M. O'Reilly/Philip Kerrivan, SE 9-854, 33 Franklyn Cartway, 50/12 (3/157)
3. J. M. O'Reilly Fowler SE 9-1149 106 Upland Circle, 127118 (10/20-48)
4. J. M. O'Reilly/Fowler SE 9-1361 106 Upland Circle, 127/18 (10/20-48)
5. J. M. O'Reilly/Forren, SE-9-1600, 80 Upland Circle, 127120 (10/20-50)
Following the recommendation of the Conservation Administrator that the projects comply
with the respective Orders of Condition, Hayley Winfield moved, Bruce Evans seconded
the motion to approve the above referenced Certificates of Compliance under the.MA
ACT and BWP Bylaw. The Commission unanimously approved the motion.
6. Patricia Ellis, SE 9-1717, 30 Nancy May Path, 91/14-802 (7111-5)
Following the recommendation of the Conservation Administrator that the project
complies with the Order of Condition, Hayley Winfield moved, Nicole Smith seconded the
motion to approve the above referenced Certificate of Compliance under the MA ACT
and BWP Bylaw, subject to receipt of an as-built plan approved by the Conservation
Administrator. The Commission unanimously approved the motion.
Requests for Administrative Review
1. Johnson Cartway Trust, 75 Johnson Cartway, 61/20 (49/55) pine tree removal
As contained in her Administrative Report, the Conservation Administrator believed the
above referenced project meets parameters for an activity under the Commission's
Administrative Review process, and approved the project under Administrative Review.
Hayley Winfield moved, Peter Wells seconded the motion to ratify the Conservation
Administrator's decision on the project. The Commission unanimously approved the
motion.
Review and Approval of Minutes
Brewster Conservation Commission Minutes November 1, 2016 7
1. October 18, 2016
Having reviewed the above referenced minutes, Hayley Winfield moved, William Klein
seconded the motion to approve them as written. The Commission unanimously
approved the motion.
Any Topics not reasonably anticipated by the Conservation Commission Chairman
Document signatures
The meeting adjourned at 9:15 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.
As the municipal focal point for environmental protection Conservation Commissions were given the
responsibility in 1972 for administering the ACT. Since that time the Commissions have served in a
regulatory as well as a conservation capacity.
In 1979, Lovequist v. Conservation Commission of Town of Dennis, the Supreme Judicial Court upheld that
by-laws are not in conflict with the Wetlands Protection Act, so long as they impose stricter standards on
projects affecting wetlands and other resource areas.
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 coastal/inland 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 http.//town.brewster.ma.us
Brewster Conservation Commission Minutes November 1, 2016 8