HomeMy Public PortalAboutConservation Commission -- 2017-11-07 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) ' ). 2 DECVUNCCLERk'And
Code of the Town of Brewster Chapter 172 , BREldSTE
Brewster Wetlands Protection Bylaw ( BWP Bylaw)
Wetland Regulations 1 .01 — 9 . 15
Call to Order
Under the Massachusetts Open Meeting Law, Chairman Michael Tobin convened the Tuesday ,
November 7 , 2017 meeting of the Brewster Conservation Commission at 6 : 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 , Conservation Administrator Noelle Bramer, Natural Resources
Director Chris Miller, Department Assistant Carol Spade
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
Chris Miller, Natural Resources Director, Town of Brewster, requests determinations as to
whether the area — Inland Bank, Land Under a Water Body and Riverfront and the work -
repair of municipal recreational boat ramp on Upper Mill Pond in the Town owned
Punkhorn Parklands - are subject to the Wetlands Protection Act and jurisdiction of the
BWP Bylaw . Property is on 0 Run Hill Road , Assessors ' Map 33 , Parcel 8 (39/4) .
Summary of Applicant Testimony
Chris Miller represented the Town of Brewster. He described the resource area and project as
contained in the Request for Determination and plan * .
Summary of Staff/Conservation Commission Comments
In answer to comments , Mr. Miller explained that the majority of the impaction to the boat ramp
area was caused by uncontaminated drainage from the Brewster Water Department wellsite east
of the area .
Summary of Public Comments
The public had no comment.
Hayley Winfield moved , William Klein 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 shall determine special conditions .
Co servation Commission Minutes November 7 2017 1
Brewster n ,
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 . Ryder and Wilcox . . . Plans . . . Town of Brewster, . . Pler. . . Ramp. . . Upper Mill Pond , 11 /7/90
Michael Tobin was recused from the following hearing .
Jane and Andrew Murphy request determinations as to whether the area — proximity to
inland wetlands , outside of 100 feet to wetlands as shown on submitted plan , and the work
— upgrade to an existing septic system to accommodate a four-bedroom dwelling - are
subject to the Wetlands Protection Act and jurisdiction of the BWP Bylaw. Property is on
18 The Channel Way , Assessors ' Map 58 , Parcel 76 ( 17/12 ) .
Summary of Applicant Testimony
Jane and Andrew Murphy attended . They described the project as contained in the Request for
Determination and plan * and explained that this filing is essentially " after-the-fact" .
Summary of Staff/Conservation Commission Comments
The Conservation Commission informed the applicants that the Conservation Commission ,
through the BWP By-law, does not allow alteration within 100 feet of wetlands (except as
permitted ) and does not allow permanent irrigation within 100 feet of resource areas .
Summary of Public Comments
The public had no comment .
Nicole Smith 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 Conservation Administrator shall determine special 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 approved the motion .
* List of documents submitted for the Request for Determination and discussed at this hearing
1 . Stephen A. Haas Engineering . . . Septic System Design 18 The Channel Way, rev. 3/31 /17
Michael Tobin returned to the meeting table .
AEH Custom Building , Inc . requests determinations as to whether the area —
approximately 60 feet from inland wetlands and the work — replacement of an existing
deck - are subject to the Wetlands Protection Act and jurisdiction of the BWP Bylaw.
Property is on 219 Leland Road , Assessors ' Map 33 , Parcel 6 (36/90 ) .
Summary of Applicant Testimony
Andrew Herald , AEH Custom Building , attended . He described the project as contained in the
Request for Determination and plan * . The deck will be reconstructed by hand-held tools , and will
not be expanded .
Summary of Staff/Conservation Commission Comments
Written comments in the Administrative Report of the Conservation Administrator
included that the work limit is proposed to be within 50 feet of resource areas .
Summary of Public Comments
The public had no comment .
Brewster Conservation Commission Minutes November 7 , 2017 2
Nicole Smith 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) .
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 Conservation Administrator shall determine special conditions .
The Commission unanimously approved the motion .
* List of documents submitted for the Request for Determination and discussed at this hearing
2 . Coastal Engineering Plan Showing Proposed Deck Replacement, 219 Leland Road , 10/12/17
3. 310 CMR 10 . 55 Delineation Field Data Forms
Paul Moses requests determinations as to whether the area — 100 foot buffer zone to
coastal and inland wetlands , and the work — continuance of management of plant species ,
are subject to the Wetlands Protection Act and jurisdiction of the BWP Bylaw. Property is
on 32 and 42 Cedar Hill Road , Assessors ' Map 38 , Parcel 35 and 36 (2/45 , 50 ) .
Summary of Applicant Testimony
Steve LaBranche , Project Manager, Wilkinson Ecological Design , Inc. , represented the applicant .
Paul Moses attended . Mr. Moses described the project as he understood it and as contained in
the Request for Determination and plan * .
Summary of Staff/Conservation Commission Comments
Ms . Bramer stated that the project before the Conservation Commission is a continuation of a
project for which the Conservation Commission issued an Order of Conditions (SE 9- 1618) , and
is to continue to control invasive species . She believed that for protection of wildlife habitat, as
long as control does not occur from May 1 , through August 15 , annually , as opposed to the spring
and summer months proposed by Mr. LaBranche in the " Maintenance Plan . . . " , and as long as
work does not occur in a resource area , she believed the Commission might choose to allow the
project to continue through a Negative Determination with special conditions as contained in
Order of Conditions SE 9 - 1618 .
In answer to Mr. Moses as to possible extensions for this permit, the Commission explained that
Determinations of Applicability are effective for three years and do not allow extensions .
Commissioners concurred with Ms . Bramer's recommendation to allow the work through a
conditional Determination of Applicability .
Summary of Public Comments
The public had no comment.
Peter Wells moved , Nicole Smith 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 shall determine special 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 .
Brewster Conservation Commission Minutes November 7 , 2017 3
* List of documents submitted for the Request for Determination and discussed at this hearing
1 . Wilkinson Ecological Design 32 Cedar Hill Road . . . 1 /18/14
Notices of Intent
(Continued Hearing ) Richard Cleary , Cleary Construction Company, proposes to construct
a single family dwelling and associated appurtenances , within 100 feet of inland wetlands
bordering Sheep's Pond . Property is on 0 Gull ' s Way, Assessors ' Map 63 , Parcel 23 (40/54-
1 ) .
Eligible voters : Evans , Klein , Wells , Tobin ( Hearing opened September 19 , 2017 , continued
to October 3 , October 17)
The consultant for the project proponent submitted a written request to continue the above
referenced hearing to the next available hearing date . Hayley Winfield moved , William Klein
seconded the motion to continue the hearing to December 5 , 2017 . The Commission approved
the motion unanimously.
Luke Brewster Realty Trust proposes " after-the-fact" , a variance from the Brewster
Wetlands Protection Bylaw, to cut and to continue to maintain vegetation within a Riverfront
and Land Subject to Coastal Storm Flowage. Property is on 15 Lower Road , Assessors '
Map 37 , Parcel 1 (20/39 ) .
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 Michniewicz , PE , Coastal Engineering Company , Inc. represented the applicant. Eric Luke
attended . Mr. Michniewicz described the resource area and project as contained in the Notice of
Intent, narrative , variance request and plan * .
Summary of Staff/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site
plan * .
Commissioners requested confirmation from the applicant that pesticides , herbicides and
fertilizers shall not be used .
Summary of Public Comments
The public had no comment.
Nicole Smith moved , Hayley Winfield seconded the motion to continue the hearing to November
21 , 2017 , to allow the Conservation Administrator to draft findings and special conditions for an
Order of Conditions for the project. The Commission unanimously approved the motion .
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . Coastal Engineering . . . Site Plan , 15 Lower Road 10/12/17, Narrative, Variance Request
Gloria Dei Artes Foundation proposes a variance from the Brewster Wetlands Protection
Bylaw, to construct a new arts/education building and parking area, and to install a water
main/service line , within 50 feet of Inland Wetland (s) and within 100 feet of Coastal
Wetland (s) . Property is on 36 Southern Eagle Cartway, Assessors ' Map 138 , Parcel 43
(30/18-1 ) .
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 . *
*The proponent received a letter from Thomas W. French , PhD , Assistant Director, Natural
Heritage & Division of Fisheries and Wildlife MA Natural Heritage and Endangered Species
Program ( NHESP) , determining that the project: "will not adversely affect the actual
resource area habitat of state listed rare species under the WPA , and a must be
Brewster Conservation Commission Minutes November 7 , 2017 4
conditioned under MESA , to avoid the prohibited Take of Mitchell ' s Sedge ( Carex
Mitchelliana) , mandating that sedges be delineated and avoided . This project may be
subject to further review if no physical work is commenced within five years from the date
of issuance of this determination , or if there is a change to the project. "
Summary of Applicant Testimony
Tim Brady , PE , PLS , East Cape Engineering , Inc. , and Theresa Sprague , Blue Flax Landscape
Design represented the applicant. Mr. Brady described in detail , the numerous resource areas
surrounding the project, as contained in the Notice of Intent , narrative , variance request,
management plan and displayed plans*.
Mr. Brady stated that the Conservation Commission may remember that it approved a project for
construction of a building further north on the lot, to serve the same use (Order of Conditions SE
9- 1644) . The former project was never constructed , and assuming the Conservation Commission
and other boards approve this project, it will not be . The applicant believes the project before the
Commission at this time is environmentally superior to the formerly proposed building in that the
former structure was to be below the groundwater at the lowest level . The project before the
Commission at this time is larger than the former, to utilize a slab foundation which is entirely
above the level of groundwater. As shown on the plan , two constructed greenhouses will be
removed , and grape vines planted in this area for wine-making purposes . Also , the existing
driveway will be reconfigured to connect with a new pervious (gravel ) parking lot over which a
new septic system will be installed , adequate for the new structure as well as existing buildings
on the site , and a water main will be installed in the existing driveway to serve all buildings on the
lot.
Ms . Sprague explained that subsequent to the former filing (Order of Conditions SE 9- 1644) , the
mitigation planting plan * was re-designed to show native woody plants on the north . ( In addition
to their environmental protections ) it will provide screening for abutters .
Also subsequent to the former filing (Order of Conditions SE 9- 1644) Blue Flax Design
discovered a greater amount of invasive species ; notably , Asiatic bittersweet , autumn olive and
porcelain berry , which pose a threat to the native plant communities .
Ms . Sprague explained that with the publication of the 2017 MA Natural Heritage and
Endangered Species Map ( NHESP) * , the project area is shown as an area of rare plant and
wildlife habitat and rare wetlands wildlife* . The letter indicated the presence of Mitchell 's Sedge
on the site , which must be avoided in execution of this project . She noted that in response to the
NHESP letter* , she and a colleague re-visited the site , and did find a sedge but they did not
believe it was Mitchell ' s Sedge ; however this may become more evident in the spring months .
She has responded to NHESP , in writing and with photos of the found sedges , on her
assessment. ( Note ; Ms . Sprague did not submit the letter for the file record at this time . )
Summary of Staff Comments/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site
plan *.
Chairman Tobin remarked that the proposed building is just at the 50 foot buffer zone in one area .
He requested the applicant revise the plan to show it further from the 50 foot buffer zone in that
area , so that the work limit and after-construction human encroachment is well outside of 50 feet
to wetlands , in all areas . Vice Chairman Winfield agreed with Mr. Tobin ' s concern .
Mr. Brady responded that although he didn 't anticipate human encroachment in this area
due to the use of the building ( musical performance and practice) , a truck bay is
proposed near the 50 foot buffer zone , and he could revise the plan to mitigate for
trucking activity .
Brewster Conservation Commission Minutes November 7 , 2017 5
Vice Chairman Winfield read the comments in the Conservation Administrator' s Report ,
Discussion centered on the items , including the following :
• That the applicant demarcate the 50 foot buffer zone west of the proposed building by a
permanent fence and/or native shrubs sufficient to prevent human encroachment after
work limit siltation barriers are removed ,
• That the applicant plant more native shrubs and trees in the western 50 foot buffer zone
shown as large areas to be cleared of invasive species , than are shown on the mitigation
plan .
Ms . Sprague responded that Blue Flax would be willing to work with the
Commission on planting more native shrubs as part of its management.
Ms . Bramer recommend the Commission continue the hearing to allow her to draft special
conditions for an Order of Conditions .
Mr. Brady requested the Conservation Administrator contact him on any remaining concerns for
plan changes , etc . , as discussed .
Summary of Public Comments
The public had no comment , The representatives and staff commented that a direct abutter
reviewing the plans in the Conservation Department, etc, , submitted no written concerns over the
project.
Nicole Smith moved , Bruce Evans seconded the motion to continue the hearing to November 21 ,
2017 , to allow the Conservation Administrator to draft findings and special conditions for an Order
of Conditions for the project. The Commission unanimously approved the motion .
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 , East Cape Engineering , Inc, Site Plan 36 Southern Eagle Cartway , , , 10/11 /17, 17 Narrative, Variance
Request
2, Blue Flax Design . . . Mitigation/Planting Plan rev. 11 /12/17 , Land Management Plan 10/11 /17
Citizens ' Forum
The public had no comment at this time .
Report of the Natural Resources Director
1 . Town of Brewster " Spruce Hill " Property, 3171 Main Street, 102/17 (8/9) ; land under
the care , custody and control of the Brewster Conservation Commission —
Removal of three structures in poor repair
Mr. Miller reminded the Commission that although the Town of Brewster Spruce Hill
property is under the care , custody and control of the Conservation Commission , the
Board of Selectmen is authorized to sell or otherwise dispose of the existing primary
building and adjacent structures .
As discussed at the Conservation Commission meeting of September 20 , 2016 , the
Board of Selectmen has elected to remove three outbuildings adjacent to the primary
building , as they are beyond repair.
The removed outbuildings may serve to provide room for additional pervious (grass or
natural stone) parking area spaces for the public.
Referenced Document
1 . September 20 , 2016 Conservation Commission Minutes
1 . Preliminary design concepts for a multi -use pathway connector extending from the
Cape Cod Rail Trail to Cape Cod Bay
IMr, Miller reviewed the above-referenced design concept explained at 'an October 181
2017 public meeting presented by the MA Department of Conservation and Recreation
Brewster Conservation Commission Minutes November 7 , 2017 6
( DCR) and the Town of Brewster, of a multi-use pathway connector extending from the
Cape Cod Rail Trail across DCR-awned property to the town-owned landing on Cape
Cod Bay and located east of Unnell Landing Road . At this public meeting , officials of the
DCR presented preliminary design concepts for a multi-use pathway connector.
Responding to comments from some attending members of the public, Mr. Miller
requested informally whether the Conservation Commission might consider allowing an
elevated structure over the dune east of Unneil Landing Road , in lieu of the proposed
design .
The Commission consensually agreed a proposal to alter a coastal dune or other
, resource area would require the expertise opinion of a professional coastal consultant.
Report of the Conservation Administrator
The Conservation Administrator had no report at this time .
Review of Plan Change
1 . Martin Lucenti , Order of Conditions SE 9 -1711 , reconstruction of a patio , stairway
to pond edge , etc . - request as to whether replacement of irregular slate stones
with connected cement pavers within 100 feet of wetlands , shall constitute a minor
change to plan - on 173 South Pond Drive, 88/5 (27194)
2 . Kenneth Thomas , Order of Conditions SE 9-1520 for construction of single family
dwelling - request as to whether a slight reduction in the building and deck footprint
no closer to resource areas , shall constitute a minor change to plan - on 0 Widgeon
Way, 126/28 ( 11 /210t32)
The Conservation Commission agreed the plan changes of the above two projects shall
be considered minor, and thus approved ( Bruce Evans moved , Hayley Winfield seconded
the motion ) ; the plans shall be designated as such by the Conservation Administrator,
The Commission unanimously approved the motion .
Requests for Extensions to Orders of Condition
1 . James Lieb , SE 9 -15821 268 Breakwater Road , 58/36 (4/15 , 55)
2 . Evelyn S . Plant, SE 9 -1481 , 322 Robbins Hill Road , 38/78 (214)
3 . Malcolm Brodrick SE 9 -1597, 237 Crocker Lane 69/2 ( 5/205)
4 . Kerlin Crocker RT SE 9-1594 217 Crocker Lane 69/1 (5/206
5 . Smith , Alan , Kushid , SE 9 -1596 267 Crocker Lane 69/5 (5/202 )
6 . Going Coastal , SE 9 -1591 257 Crocker Lane 69/3 (5/204-51 )
7 . Downey, Order of Conditions SE 9-16412 18 Muskrat Lane , 103/11 (9/50)
Following the recommendation of the Conservation Administrator, Klein moved , Winfield
seconded the motion to approve the above referenced requests for extensions under the
MA ACT and BWP Bylaw, for one year. The Commission unanimously approved the
motion .
Requests for Certificates of Compliance
1 . Robert Marion , Order of Conditions SE 9 -916 , 22 Six Penny Lane , 37/30 , 31 ( 19/11 ,
69)
Following the recommendation of the Conservation Administrator that the project
complies with the Order of Conditions , Winfield moved , Klein seconded the motion to
approve the above referenced Certificate of Compliance under the MA ACT and BWP
Bylaw, The Commission unanimously approved the motion .
2 . J . M . O ' Reilly . . . Order of Conditions SE 9 -1658 , 26 Nancy May Path , 91 /14 (7/11 -1 )
The Commission took no action on the above request at this time .
Requests for Administrative Review
1 . Town of Brewster 2198 Main Street, 68/127 ( 16/76) , storage shed
Brewster Conservation Commission Minutes November 7 , 2017 7
2 . Sea Pines Condominium Association , Unit #279 , 78/77 (6/20 ) , replacement of
stockade fence
As contained in her Administrative Report and accompanying photos , the Conservation
Administrator believed the above referenced projects meet parameters for activities
under the Commission ' s Administrative Review process , and approved the projects under
Administrative Review. Following discussion , Winfield moved , Wells seconded the
motion to ratify the Conservation Administrator' s decision on the projects . The
Commission unanimously approved the motion .
3 . Steven and Patricia Mitchell , 1016 Stony Brook Road , 36/59 (23/56 ) tree removal
The Commission took no action on the above request at this time .
Review and Approval of Minutes
1 . October 17 , 2017
Having reviewed the above referenced minutes , Wells moved , Evans seconded the
motion to approve them as written . The Commission unanimously approved the
motion .
At 7 , 15 PM , Wells moved , Klein seconded the motion to adjourn the meeting . The Commission
unanimously approved the motion .
The meeting adjourned at 7 ; 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 coastaUinland wetland buffer zones depicting the
species, size and natural spacing of plants
2. Massachusetts Department of Agricultural Resources , Jnvasive Plants in Massachusetts 111105
I Administrative Report of the Conservation Administrator
4. Meeting video recording, Town of Brewster Website http://town. bra wster. me. us
Brewster Conservation Commission Minutes November 7 , 2017 8