HomeMy Public PortalAboutConservation Commission -- 2018-11-13 Minutes r
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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
Under the Massachusetts Open Meeting Law , Chairman Michael Tobin convened the Tuesday ,
November 13 , 2018 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 Nicole Smith , Commissioners Bruce Evans ( left meeting
at approximately 6 : 15 ) , William Klein , Peter Wells , Conservation Administrator Noelle Aguiar,
Natural Resources Director Chris Miller, Senior 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 video* recorded .
Anyone else intending to record is required to inform the Chairman prior to the
meeting . "
Public Hearings
Request for Determinations of Applicability
JRM Investments requests determinations as to whether the area — 100+ = feet to inland
wetlands , and the work — connecting a new dwelling to a water main as are subject to the
Wetlands Protection Act and jurisdiction of the BWP Bylaw . Property is on 164 Breakwater
Road , 58/54 (4/54-1 ) .
Summary of Applicant Testimony
John Cully and Daniel Warsowick , JRM Investments , represented the applicant. They described
the resource areas and project as contained in the Request for Determination and plan * .
Summary of Staff/Conservation Commission Comments
Discussion included requirements for prior work notification , etc .
Summary of Public Comments
The public had no comment.
Klein moved , 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) .
Please see accompanying letter.
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 November 13 , 2018 1
The Conservation Commission unanimously approved the motion .
* List of documents submitted for the Request for Determination and discussed at this hearing
1 . J . M. O' Reilly, . . . Site Plan , 164 Breakwater Road , rev. 10/12/18
Douglas Fauser requests determinations as to whether the area — a 100 year flood
boundary , and the work — replacement of a failed sewage system with a new Title 5
Sewage System - are subject to the Wetlands Protection Act and jurisdiction of the BWP
Bylaw . Property is on 58 Arnolds Cartway , 38/68 (2/77 ) .
Summary of Applicant Testimony
John O ' Reilly , J . M . O ' Reilly , Inc . , represented the applicant. He explained the coastal resource
area and project as contained in the Request for Determination and plan * .
Summary of Staff/Conservation Commission Comments
Discussion centered on revegetation , with the CA informing the Commission the area is relatively
well vegetated , and recommending that the proposed native grass seed mix be a condition of any
approval .
Summary of Public Comments
The public had no comment.
Wells moved , Klein seconded the motion to close the public hearing and issue determinations , as
shown , contingent upon special conditions :
Negative Determination
2 . The work described in the Request is within an area subject to protection under the Act , but will not
remove , fill , dredge , or alter that area . Therefore , said work does not require the filing of a Notice
of Intent.
Please see accompanying letter.
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 Commission unanimously approved the motion .
* List of documents submitted for the Request for Determination and discussed at this hearing
1 . J . M . O' Reilly . . . Site Plan , 58 Arnold' s Cartway, 10/5/18
Request for Certificate of Compliance
1 . Fauser, SE 9 -1703 , 58 Arnold 's Cartway , 38/68 ( 2/77 )
The Conservation Administrator confirmed that the project did not commence and
jurisdictional areas remain undisturbed . Klein/Smith AU **
Notice of Intent
Commonwealth of MA, Department of Conservation and Recreation ( DCR) , and Town of
Brewster, propose a variance from the Brewster Wetlands Protection Bylaw to construct an
extension of the Cape Cod Rail Trail to Linnell Landing Beach , within 50 (and 100) feet of
coastal and inland wetlands , and in coastal wetland resource areas . Property is on 3381
Main Street and 0 Weathervane Way , Assessor's Map NA Parcel NA .
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 Notice of Intent was submitted to the MA Historical Commission * , as it occurs within areas of
significant historic or archaeological resources .
Summary of Applicant Testimony
Lee Weishar and Elise LaDuke , Wood ' s Hole Group , Inc. , John Hendrickson , PE , Stantec , and
Natural Resources Director Chris Miller represented the applicant. Mr. Weishar described the
Brewster Conservation Commission Minutes November 13 , 2018 2
resource areas and project as contained in the Notice of Intent, narrative , variance request ,
Delineation Field Data Forms and plans*. . Mr. Weishar explained that the DCR is attempting to
create bike/pedestrian path access to water in this application . The project requests a variance
for constructing the bike path within 50 feet of inland and coastal wetlands and pedestrian access
within a Coastal Dune area , where five foot wide seasonally removal matting is proposed for
pedestrian access over the Coastal Dune , with split rail fencing on either side to deter pedestrians
from walking on and enlarging the pathway on either side of the Coastal Dune .
Summary of Staff/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site
plan * .
Ms . Aguiar stated the project also entails removal of impervious tennis court area (s ) within 50 and
100 feet to an inland wetland . The removed impervious surfaces will be loamed and seeded with
native grass seed mix .
She requested a double line of siltation barriers within jurisdictional areas , to protect wetland
interests .
Ms . Aguiar read from a letter from the MA Historical Commission * , as it occurs within areas of
significant historic or archaeological resources .
Commissioner Klein requested the applicant submit specific data on the square footage of
proposed removed impervious area (s ) vs . proposed bike path area .
Further discussion centered on the reason for the project ; allowing more people to recreate in this
area . There is limited vehicular parking space in this location , and a very expansive beach at
easterly abutting Nickerson State Park Beach . As with the rest of the Cape Cod Rail Trail , the
proposed expansion is intended for pedestrian use as well as that of bicycles . People recreating
in Nickerson State Park on the south side of Route 6A and others , will be able to ride bikes and/or
walk to this beach on the proposed new trail .
Summary of Public Comments
Mr. John Lamb questioned the width of the proposed trail , and expressed concern that measures
prohibiting off-road vehicles be addressed .
The Conservation Commission consensually agreed that prohibiting off- road vehicles on the trail
or other jurisdictional areas will be conditioned in any Order of Conditions issued by the
Commission .
Smith/Welis continue the hearing to November 20 , 2018 . AU ** .
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . Site Plan, Stantec , Department of Conservation and Recreation Cape Cod Rail Trail Connection to
Linnell Landing Beach in the Town of Brewster (11 Sheets), September 13 , 2018 , Narrative, Variance
Request
2 . 310 CMR 10 . 55 Delineation Field Data Forms
( Continued Hearing ) Brewster Conservation Trust (Jeff Thibodeau , Estate of James W
Maples ) proposes " after-the -fact" , to remove a house , garage and septic system , and to
remove invasive vegetation and revegetate with native vegetation to return the land to its
natural condition , on 287 Stony Brook Road , Assessors ' Map 15 , Parcel 39 ( 21 /26 -3 ) .
Eligible voters : Evans , Klein , Smith , Tobin , Wells ( hearing opened on October 16 , 2018 ;
testimony taken ) .
Brewster Conservation Commission Minutes November 13 , 2018 3
The Conservation Commission continued the October 16 hearing to allow receipt of a site plan *
and for the Conservation Administrator to draft findings and special conditions for an Order of
Conditions for the project
Having received said site plan which the Commission found acceptable , and following review of
findings under the WPA and BWP By- law and special conditions under the BWP By- law , Bruce
Evans moved , William Klein seconded the motion to close the hearing , approve the project . . . with
findings and special conditions as drafted , and issue an Order of Conditions . The Conservation
Commission unanimously approved the motion . Eligible voters: Bruce Evans, William Klein, Nicole
Smith, Peter Wells, Michael Tobin (5 -0 )
*List of documents submitted for the Notice of Intent and discussed at this hearing
1 . Brewster Conservation Trust 287 Stony Brook Road Proposed House Demolition and
Bamboo Removal Site Plan
( Continued Hearing ) Jacquelyn Jennett, proposes a variance from the Brewster Wetlands
Protection Bylaw to remove invasive vegetation , prune shrubs and plant native shrub
vegetation within 50 feet of coastal wetlands . Property is on 44 Governor Prence Road ,
58/27 (4/10) .
Eligible voters : Evans , Klein , Smith , Tobin , Wells ( hearing opened on October 16 , 2018 ;
testimony taken )
The Conservation Commission continued the October 16 hearing to allow the representative to
revise the plan as requested , and for the Conservation Administrator to draft findings and special
conditions for an Order of Conditions for the project.
Summary of Applicant Testimony
Phil Cheney , Landscape Designer, represented the applicant .
Having reviewed and found the submitted plan acceptable , following review of findings under the
WPA and BWP By- law and special conditions under the 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 Conservation Commission
unanimously approved the motion . Eligible voters: Bruce Evans, William Klein, Nicole Smith, Peter
Wells, Michael Tobin (5 -0 )
* List of documents submitted for the Notice of Intent and discussed at this hearing :
Vista Pruning . . . 44 Governor Prence Road by Philip L. Cheney rev. 10/18/18
( Continued Hearing ) Cobbs Pond Condominium Association , c/o Ponderosa Property
Management , proposes a variance from the Brewster Wetlands Protection Bylaw to remove
native and invasive tree and herbaceous plant species and prune for a series of views along
Cobbs Pond , within 50 feet of inland wetlands . Property is on Wauquanesit Drive , 57/5
( 17/1 ) .
Eligible voters : Evans , Klein , Smith , Tobin , Wells ( hearing opened on October 16 , 2018 ;
testimony taken ) .
John O ' Reilly , J . M . O ' Reilly , Inc . , represented the applicant.
He confirmed that he submitted a written request to continue the above referenced hearing to
November 20 , 2018 . Smith/Evans continue to November 20 . ** AU .
( Continued Hearing ) Sears Point Condominium Association proposes a variance from the
Brewster Wetlands Protection Bylaw to construct a rock boulder revetment and sand drift
fence , along coastal landforms to protect a structure constructed prior to 1978 , the date of
enactment of the Wetlands Protection Act. Property is off Sears Point Drive , 57/3 (4/1 ) .
Eligible voters : All ( hearing opened on October 16 , 2018 ; no testimony) .
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 .
Brewster Conservation Commission Minutes November 13 , 2018 4
Summary of Applicant Testimony
Catherine Ricks , PE , Coastal Engineering , Inc . , and Jennifer Crawford , Crawford Land
Management , Inc . (CLM ) , attended as representatives for the applicant . Ms . Ricks essentially
described the resource area and project as contained in the Notice of Intent, narrative , variance
request.
Jennifer Crawford described the vegetative portion of the project, and displayed photos * of a
vegetation project in Brewster, of a similar design and Coastal conditions as the subject project .
Summary of Staff/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site
plan * .
The Commission discussed that the applicant submit an alternative to the rock boulder proposal ,
such as coir fiber stabilization , and believed the vegetative portion of the project is within
compliance of the WPA and BWP By-law .
Ultimately , the Commission agreed to retain a professional consultant to review the hard
engineering proposal .
Summary of Public Comments
The public had no comment.
Evans/Smith continue the hearing to December 18 , 2018 . AU **.
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . Site Plan , Coastal Engineering Co. Sears Point. . . Plan Showing Proposed West End Shore Line
Protection 9/21 /18 Narrative, Variance Request
2 . Vegetation Photos , Before, During and After ( 1 year)
Notice of Intent
Sears Point Condominium Association proposes to amend Order of Conditions SE 9 =1517 ,
to remove invasive plant species and prune vegetation , and to plant native vegetation as
mitigation for the project — on 177 Sears Point Road , 57/3 (4/1 ) .
Summary of Applicant Testimony
Catherine Ricks , PE , Coastal Engineering , Inc. , and Jennifer Crawford , Crawford Land
Management , Inc . ( CLM ) , attended as representatives for the applicant. Ms . Crawford described
the resource area and project as contained in the request to amend the Order of Conditions . She
described removing invasive shrubs and vines , and trees such as an unhealthy native black
cherry tree in one area , replacing it with Carolina rose shrubs , removing invasive , non - native
Siberian elm and autumn olive trees in another, and other invasive vegetation including sycamore
maple trees in a third area , and planting native shrubs in all areas , as replacement . Other native
trees including oaks and pines , shall remain .
Summary of Staff/Conservation Commission Comments
Commissioner Klein asked Ms . Crawford the motivation for the tree removal , and questioned
whether sycamore maple is invasive , though it is listed as such on the Massachusetts
Department of Agricultural Resources . . . lnvasive Plants in Massachusetts 111105 list. He
believed if the tree is large and healthy it should remain , and that it is the Commission ' s policy to
replace trees with trees instead of shrubs .
Discussion centered on this issue , with Ms . Crawford stating she hopes lawn removal and
replacement with native appropriate diverse woody shrub plants will be considered mitigation ;
however, she will discuss this issue with her clients .
Brewster Conservation Commission Minutes November 13 , 2018 5
Summary of Public Comments
The public had no comment.
Wells/Evans continue the hearing to December 18 , 2018 . AU ** .
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . CLM Sears Point Con . Restoration Plan , 10/23/18 Narrative, Variance Request
Commissioner Bruce Evans was recused from the following two hearings* ** and left the
meeting at this time ,
* ** ( Continued Hearing ) Thomas Monaghan , Corcoran Jennison Management ( Ocean Edge
Resort) proposes variances from the Brewster Wetlands Protection Bylaw for
bioengineering measures consisting of rows of coir materials , and sand nourishment and
native vegetation on a Coastal Dune , Coastal Beach , Land Subject to Coastal Flowage and
Riverfront and within the 100400t Buffer Zone to a Salt Marsh , Land Containing Shellfish and
Vegetated Wetlands , on property off 2907 Main Street, 90/160 ( 14/1 ) .
Eligible voters : Klein , Smith , Tobin , Wells ( hearing opened on October 2 , 2018 ( no
testimony) continued to October 16 , 2018 ; testimony taken ) .
The Conservation Commission continued the October 16 hearing to allow the Conservation
Commission to await official review reports * of the project, from professional coastal
consultants Greg Berman , Coastal Processes Specialist, Woods Hole Sea Grant/Cape Cod
Cooperative Extension , and Stephen McKenna , Cape & Islands Regional Coordinator for
the United States Coastal Zone Management .
Summary of Applicant Testimony
Thomas Monaghan , Ocean Edge Associations , I and II and Bay Pines Condominium Association
Properties , and Stanley M . Humphries , Coastal Geologist , LEC Environmental Consultants ,
represented the applicant. David Lager , Netco Construction Project Managers , attended .
Mr. Monaghan read from a letter* addressed to the Commission , which he wrote , and submitted
at this hearing . It addressed the reports of Mr. Berman and Mr. McKenna , and Mr. Monaghan ' s
assessment of the condition of the resource areas in the project area . Through the course of his
testimony , Mr. Monaghan maintained that the erosion on his clients' properties is due in part to
existing groins and revetments west of the Ocean Edge I and II and Bay Pines Condominium
Association Properties , and that his clients deserve the same advantages as owners of the hard
engineering structures constructed previously and that the consultants misconstrued some of the
elements of this project.
Also in reference to the reports , Mr. Humphries first stated that neither of the consultants
referenced the project' s effect on flood control in their reports * , but focused on erosion . Owners of
the Ocean Edge Condominiums are concerned that their condominiums not flood during Coastal
Storms .
He displayed a topographic map of Ocean Edge from the report from Mr . Berman ( Figure 4 ) ,
showing the 100 foot and 50 foot buffer zone from the Coastal Dune , both of which are seaward
of all of the condominiums . Mr. Humphries stated that the red line ( 100 foot buffer zone) is (also)
the Velocity Zone , and stressed that not in a lot of places does a Velocity Zone retreat landward
of a Coastal Dune unless it is doing so at a fast rate and the dune is very small .
Mr. Humphreys then displayed diagrams included in the letter from Mr. Monaghan , in an attempt
to demonstrate another reason for the need for this project , Included with these were photos
taken nine years previously , and in 2018 . The photo taken in 2018 depicted the Coastal Dune as
more seaward than the latter.
Mr. Humphreys explained that the applicant is prepared to revise the Notice of Intent as directed
by the Conservation Commission . He also stated the owners are aware of their responsibility as
Brewster Conservation Commission Minutes November 13 , 2018 6
part of this project, to apply sand to the Coastal Resource Areas in compliance with the WPA and
BWP By- law.
Summary of Staff/Conservation Commission Comments
Vice Chairman Smith stated that she cannot vote to approve this project until the applicant
submits proof of adequate sand nourishment to the Coastal area (s ) on a frequent , consistent
basis .
Commissioner Klein requested whether Mr. Humphreys used numeric modeling analysis which
Consultant McKenna suggested be made :
"Typically the management of coastal dune erosion involves construction or
enhancement of the primary dune, and periodic "maintenance nourishment" to
rebuild or replace areas eroded during storm events. Dune nourishment is
frequently enhanced with different forms of fencing and with native
plantings to help hold and capture wind and wave blown sand. . . The site
contains very significant natural dune deposits along this stretch of
shoreline, which could be effectively "enhanced" with additional sand
placed well above the MHW (mean high water) line, and actively managed
over time. Additionally there is a town landing almost adjacent to the property
providing very easy and effective access for machinery and transporting of sand to
the site . . . ) would encourage the proponent explore the dune enhancement project
which significantly enhances the existing primary dune. Potential dune and beach
nourishment profiles can be evaluated through the use of numeric modeling
analysis such as beach (Storm Induced Beach Change Model) to predict beach,
berm, and dune erosion rates due to storm waves and water levels. The dune and
beach response can be evaluated for various storm conditions, as well as various
beach and dune profiles. Final design can then be based on the desired level of
protection over time. Any sand nourishment approach to slowing the natural
erosion rates along this site will need to be actively managed, and likely require
annual maintenance nourishment. " - Steve McKenna
Mr. Humphries responded that he would prefer to design a project in response to storm events
after they occur; and that engineering for those models is not available for this filing .
Chairman Tobin and Noelle Aguiar stated that they believed the project does not meet the
Performance Standards of the MA WPA, as referenced in the consultants' reports , as follows :
Dune Functions
"Due to the general lack of buildings or other infrastructure impeding dune
migration, this dune system is able to function naturally in response to wind
and wave energy. Dune erosion is a part of this process, and is the natural
response of a dune system on a retreating shoreline . . . The loss of dune volume
is the natural response to recent severe winter storms, and does not reflect
any loss or degradation of dune function. In fact, this erosion highlights the
beneficial function of this dune system in terms of storm damage and flood control
by supplying sand to coastal beaches during storm events. For these reasons, I
believe this dune serves all dune functions detailed in 310 CMR 10. 28 Dune
Preamble (1) and is therefore significant to storm damage protection, flood control,
and wildlife habitat. " - Steve McKenna
" This array consists of a combination of drift fence, coir envelopes, and fiber logs.
Individually each of these components are not typically considered a Coastal
Engineering Structure (CES), however they may if they interrupt the ability of the
coastal resource areas to perform their functions. Specifically this type of array
has the potential to affect "the ability of the waves to remove sand from the dune "
and interfere "with the landward or lateral movement of the dune ", especially if it is
Brewster Conservation Commission Minutes November 13 , 2018 7
maintained in place over time instead of allowing degradation of the coir and
recolonization by vegetation . This combination of methods is typically used as a
last resort to attempt to prevent storm damage to a structure that does not qualify
for a CES, and sometimes to attempt to replace a dune where it has already been
wiped out completely. . . Except for the beach bar there are no structures within 50 '
of the dune, and the dwellings are about 100 ' away. . . With the long term
erosion rates of less than 1 '/yr this is 50400 years away from being in
danger. Even with the more recent rapid erosion (2. 27yr according to NOI)
It is still several decades before these structures would be in danger. The
current methods of drift fence and nourishment allow the dune to more closely
mimic natural migration . " - Greg Berman
During discussion , Ms . Aguiar referenced additional portions of the consultants ' report for the
Conservation Commission to consider carefully in its decision on this project :
Site Assessment
"This site is part of a long (approximately 1, 300 ft.) section of Brewster shoreline
with a natural dune system . . . The dune system all along the project site is
unconstrained by existing structures or other infrastructure. The dune system is
well vegetated, with a variety of native and non-native species. The various
buildings and structures located on the site are widely spaced apart, and most are
located over 100 ' from the crest of the dune. A small portion of the condo building
on the east side of the property appears to be approximately 80 ' from the dune
crest. " - Steve McKenna
Assessment of Appropriateness and Necessity
"If the Commission determines that the coastal dune is significant to storm
damage prevention, flood control or the protection of wildlife habitat, the
performance standards under 310 CMR 10. 28(3) through (6) apply to the proposed
project. Based on my review of the proposed project and the applicable
performance standards, it appears the project conflicts with provisions of 310
10. 28 (3) (a). Specifically, this performance standard requires that a project will not
have an adverse effect n the dune by: "(a) affecting the ability of waves to remove
sand from the dune. " The project appears of be specifically designed to slow or
reduce the loss of sediment for the dune system, and therefore at odds with this
performance standard. . . The proposed dune crest is at elevation 15, and the top of
the coir fiber rolls are at elevation 12. 5. This only allows the small upper portion
(2. 5 ') of the dune crest to erode during significant storm events. The dune material
below elevation 12. 5 would remain trapped behind the fiber roll array, and
significantly reduces the ability of the waves to remove sand form the dune.
During significant storm events, the fiber rolls will effectively eliminate the majority
of the dune system (below elevation 12. 5) as a sediment source to adjacent coastal
resource areas, and prevent the dune form from being changed by wind and
natural water flow, which are critical to the interests of storm damage prevention
and flood control. In addition, during severe storm evens the coir log(s) could
potentially be torn from the array due to their construction on an unstable land
form (dune) and within a high energy environment (V-zone). If this occurs, they
could be transported by storm waves and cause potential damage to adjacent
natural resources or structures. " - Steve McKenna
Erosion and Sand Nourishment
"The NOI indicated that 1, 250 cubic yards of sand was placed at the site in the fall
of 2017, however no table of the frequency and volumes of past sand placement
was available. Assuming 3-5 ' high dunes along the > 1, 000 ' shoreline and using the
long term erosion rate of 0. 77yr (short term rate ~3xlong term rate) there is more
than 1 , 250 cubic yards being eroded from the shoreline each year. Therefore it is
Brewster Conservation Commission Minutes November 13 , 2018 8
entirely reasonable to assume that the entire 2017 sand nourishment would erode
in one year. " — Greg Berman
" The one-time placement of 1, 250 cubic yards of sand along approximately 1 , 100
feet of dune is insufficient to conclude that sand nourishment is not a feasible
alternative. This represents slightly more than one cubic yard of sand per foot,
which is not a significant amount for the size of the site and for the existing
erosion rates. " — Steve McKenna
"Any project that stops the landward migration of the shoreline, without providing
for about this much sand nourishment each year, will likely result in the lowering
of the beach. Erosion doesn 't stop in the areas adjacent to the shoreline
stabilization project and "holding the line " can become more and more difficult
over time. Eventually there will be a time when the landward retreat of the array
(instead of maintaining it in place) to be more compatible with the surrounding
shoreline. " — Greg Berman
Materials
"On the Ocean Edge property there is over 1, 000 ' of continuous drift
fence . . , extending to the small inlet. This type of fence configuration is typically
used in areas subject to strong waves, so the fence can break some of the wave
energy before it reaches the bank or dune landward of it, rather than fencing 's
primary use to capture windblown sand. This type of fencing is not recommended
by Mass CZM due to its additional (on top of traditional sand fencing) potential
adverse impacts. erosion around the posts, interference with the flow of sediment,
a wind-tunnel effect, and the wood/nails creating marine debris. " — Greg Berman
" The 8/28/2018 site plan references "solid coir logs ", which may correspond to
high density fiber logs. These do not allow vegetation to take root easily in the
matrix. Any time of plastic/geotextile would also prevent vegetation from taking
root and would not allow a dune to migrate naturally. The Commission may want
to request details of the coir envelopes/logs array to indicate any proposed non-
biodegradable materials. " — Greg Berman
Final Notes
"The erosion of the dune (and the lack of rebuilding) is in part due to the natural
erosion processes and in part due to the lack of sand in the system resulting from
the updrift coastal revetments and groins. This is one of the last properties
along this stretch of shoreline that still has a functioning coastal dune.
Care should be taken to allow natural function for as long as possible. " -
Greg Berman
Natural Resources Director Miller addressed those present, stating that he has been monitoring
(the bay in Brewster) for eleven years . The subject area and areas down drift of it have eroded
during recent very intense coastal storms . However, they have accreted in the summer months ,
so that although there is a net loss (of beach/dune , etc . ) due to these recent storms , the beach
and dune areas are re- building .
Mr. Miller stressed that the four by four- inch slat-width Sturdy Sand Drift Fences recently installed
along the coastline are having adverse effects on the Coastal Resource Areas ; particularly in that
they are too far seaward , due partly to these intense storms . The Sturdy Sand Drift Fences are
not allowing the dunes to build , and are not remaining buried beneath the sand , so that they
actually act as revetments , accelerating erosion in down drift areas .
Brewster Conservation Commission Minutes November 13 , 2018 9
The fences , including the fencing at the subject property , should be moved landward and
placed against the Coastal Banks/Dunes and again buried beneath the sand , exposing
only a few inches of fencing, as it is only a few inches of fencing that builds Dunes.
Mr. Miller stressed that the Conservation Commission must follow the Performance
Standards of the WPA and BWP Bylaw, in its decision on this project.
Mr. Monaghan interrupted Mr. Miller at this point , as he did throughout the Staff/Conservation
Commission testimony , in which he dominated the discussion .
Ms . Aguiar then read into the record , a letter* from Jeffrey Thibodeau , representing abutter
Brewster Conservation Trust ( BCT) . The letter stated that the BCT is very concerned over
potential adverse impacts resulting from this project.
The Commission consensually agreed to retain a consultant able to attend a Conservation
Commission hearing to answer questions of the Conservation Commission ,
Mr. Tobin asked for a motion to continue the hearing (to November 20 , at the applicant' s request) ,
to allow for a consultant "willing to come" (to the hearing ) " and talk to us" .
Smith/Klein continue the hearing to November 20 , 2018 . A* * .
` List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . Greg Berman , Coastal Processes Specialist (WHSG and CCCE ) , Woods Hole Sea
Grant/Cape Cod Cooperative Extension , November 5 , 2018 Report Re : Site Visit
to Ocean Edge , 10/1 /18
2 . Stephen McKenna , Cape & Islands Regional Coordinator for the United States
Coastal Zone Management Report , 11 /7/18 .
3 , Jr M. O' Reilly . . . Ocean Edge Associations I & II Baypines Condominium Association . . . Proposed Site
Plan Showing Long Term Dune Protection, 8/28/18 Narrative/Variance Request Pages 1 =13 .
4. Project Narrative : OE II and Bay Pines Associations ConCom (sic) Hearing 11 /13/18 to Monaghan
submitted Nov. 13, 2018 at hearing Pages 1 — 19.
S. November 13, 2018 Letter from Jeff Thibodeau , Land Acquisition and Stewardship Specialist,
Brewster Conservation Trust
(Continued Hearing ) Stewart Bernstein , Ocean Edge II ( Ocean Edge Resort) proposes a
variance from the Brewster Wetlands Protection Bylaw to vegetate a Coastal Dune
( Secondary Dune) . Property is on 2907 Main Street, 90/160 ( 14/1 ) .
Eligible voters : Klein , Smith , Tobin , Wells ( hearing opened on October 16 , 2018 ; testimony
taken ) .
The Conservation Commission continued the October 16 hearing to allow the Conservation
Commission to await official review reports of the project , from professional coastal consultants
Greg Berman , Coastal Processes Specialist , Woods Hole Sea Grant/Cape Cod Cooperative
Extension , and Stephen McKenna , Cape & Islands Regional Coordinator for the United
States Coastal Zone Management.
Summary of Applicant Testimony
Paul Shea , Independent Environmental Consultants , Inc . ( IEC ) , represented the applicant.
Thomas Monaghan , Ocean Edge Associations , I and II and Bay Pines Condominium Association
Properties , attended .
Mr. Shea stated that he interprets the report of Greg Berman as stating that this proposal is
" basically a good idea" .
In reference to Mr. Berman ' s statement "back dune restoration " shouldn 't be called restoration as
it is not damaged" (see below), Mr. Shea stated he believed Mr. Berman may not have known
that Ocean Edge II is hoping to refrain from its former practice of "vista pruning " trees in favor of
planting native shrubs , etc . , conducive to Coastal Dunes in place of the existing trees . He also
Brewster Conservation Commission Minutes November 13 , 2018 10
took Mr. Berman ' s statement , "The area currently has small depressions and ridges that
form microclimatic features allowing for diversity of plants and simply filling the area to a
uniform grade will change habitat value ", to mean that he approved of adding sand in the back
dune area .
"The area called out in the NOI as "back dune restoration " shouldn 't be called
restoration as it is not damaged. The back-dune area in this location appears to be
naturally functioning as the area behind the crest of the primary dune should
function . . . The area currently has small depressions and ridges that form
microclimatic features allowing for diversity of plants and simply filling the area to a
uniform grade will change habitat value. "
Greg Berman .
"While (the removal of vegetation with replanting of beach grass and regrading) will
enhance the existing dune volume, the size and extent of this work must be balanced
against impacts to habitat. The existing back dune area has a wide variety of
vegetation, and the natural variations in dune elevations and shapes. This natural
diversity is important to the quality of the habitat, and should be protected as much
as possible. In general, I would recommend minimizing the extent of this nourishment
by focusing on the areas on and just behind the primary dune. The Commission may
want to consult a qualified coastal ecologist to help assess potential habitat impacts
associated with this portion of the project, and help provide guidance to the
Commission. "
Steve McKenna
Mr. Shea maintained that flooding has occurred " in this area" , and the depressions on the
Secondary Dune must be filled to increase its height.
The Conservation Administrator than read Performance Standards of the Regulations of the
WPA and BWP Bylaw regarding alteration of Coastal Dunes , as follows :
On retreating shorelines, the ability of the coastal dunes bordering the coastal beach
to move landward at the rate of shoreline retreat allows these dunes to maintain their
form and volume, which in turn promotes their function of protecting against storm
damage or flooding.
When a coastal dune is significant to storm damage prevention, flood control or the
protection of wildlife habitat, the following characteristics are critical to the protection
of those
interest(s) ;
(a) the ability of the dune to erode in response to coastal beach conditions;
(b) dune volume,
(c) dune form, which must be allowed to be changed by wind and natural water
flow;
(d) vegetative cover;
(e) the ability of the dune to move landward or laterally; or
(f) the ability of the dune to continue serving as bird nesting habitat.
Any alteration of, or structure on, a coastal dune or within 100 feet of a coastal dune
shall not have an adverse effect on the coastal dune by.
(a) affecting the ability of waves to remove sand from the dune,
(b) disturbing the vegetative cover so as to destabilize the dune;
(c) causing any modification of the dune form that would increase the potential for
storm or flood damage,
(d) interfering with the landward or lateral movement of the dune;
(e) causing removal of sand from the dune artificially; or
(f) interfering with mapped or otherwise identified bird nesting habitat
Brewster Conservation Commission Minutes November 13 , 2018 11
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The Commission agreed to continue the hearing to await attendance from a consultant willing to
attend a Conservation Commission hearing , to answer questions of the Conservation
Commission .
Smith/Wells continue the hearing to November 20 , 2018 . A* * .
Abbreviated Notice of Resource Area Delineation
Eastward Companies filed an Abbreviated Notice of Resource Area Delineation , requesting
the Conservation Commission ' s determination as to boundaries of resource areas for
property on Lots 1 — 8 , Main Street, Assessors ' Map 138 , Parcel 49 and 138 Parcel 81 ( 30/31
and 30/30A08 ) .
Summary of Applicant Testimony
David Clark , PE , Clark Engineering , Keith Johnson , Environmental Consultant, Billingsgate Land
Management and a representative from Blue Flax Design , represented the applicant. Mr. Clark
described the resource areas under the WPA and BWP By- law , as delineated by Clark
Engineering in the Abbreviated Notice of Resource Area Delineation , narrative , Delineation Field
Data Forms and plan * .
Summary of Staff/Conservation Commission Comments
The Conservation Commission did not confirm resource area accuracy as shown on the site
plan * .
The Conservation Administrator questioned the wetland type on the northwest area of the
properties and more specifically , the area labeled Isolated Land Subject to Flooding immediately
to the south , which she stated connects through a culvert underneath Vesper Pond Drive and to
the west.
For this reason she recommended the Commission retain an environmental consultant to assess
the wetlands . The Commission consensually agreed to this recommendation .
Summary of Public Comments
Abutter Steve Max , 68 Vesper Pond Drive , attended . He stated that his property is two lots to the
west of the subject area . He believed a " spring " flows into Vesper Pond where a cranberry bog
exists , and from there , into other nearby ponds . If this flow is disrupted , water flows into his
property and others . For this reason , he believed that flow must be kept open continually .
Smith /Klein continue the hearing to November 20 , 2018 AU** .
* List of documents submitted for the Notice of Intent and discussed at this hearing :
1 . Eastward Companies Clark Engineering , LLC Existing Conditions Plan 7/20/18 Narrative
Citizens ' Forum
The public had no comment at this time .
Discussion
Report of the Natural Resources Director
Following discussion , the Commission consensually agreed a small project near the original
Brewster Fire Station (approximately1657 , 1671 and 1673 Main Street, 56/6 , 56/7 ) (24/ 13 , 14 )
within 100 feet of inland wetlands , shall require the filing of a Request for Determination of
Applicability .
Report of the Conservation Administrator
The CA had no report at this time .
I
Brewster Conservation Commission Minutes November 13 , 2018 12
i
Request for Extension to Order of Conditions
1 . Jennett, SE 9 -1516 , 44 Governor Prence Road , 58/27 (4/10 )
2 . Kennedy , SE 9 -1511 , 306 Breakwater Road , 58/32 (4/11 )
Following the recommendation of the Conservation Administrator, the Commission
approved the above referenced requests for extensions under the MA ACT and BWP
Bylaw, for one year. Smith/Wells AU ** .
Request for Certificate of Compliance
1 . Fauser, SE 9 -17031 58 Arnold ' s Cartway , 38/68 (2/77 )
2 . Paul Lucier, Order of Conditions Brewster #95 -1 , 40 Skaket Way , 139/4 ( 10/22 )
3 . Paul Lucier, Order of Conditions SE 94981 40 Skaket Way , 139/4 ( 10/22 )
4 . Paul Lucier, Order of Conditions SE 9 -1076 , 40 Skaket Way , 139/4 ( 10/22)
5 . Paul Lucier, Order of Conditions SE 9 -1439 , 40 Skaket Way , 139/4 ( 10/22)
The Conservation Administrator recommended that the projects comply with the
respective Orders of Condition , or that the projects did not commence and jurisdictional
areas remain undisturbed , and to issue Certificates of Compliance . Wells/Smith AU ** .
Request for Administrative Review (AR)
1 . South Red Wing Partners LLC , 40 Red Wing Cartway , 69/78 ( 5/15 )**
2 . JRM Investment Realty 2010 LLC , 164 Breakwater Road , 58/54 (4/54-1 )
3 . Klein 131 Owl Pond Road , 137/10 (29/8 )
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. Machinery is not allowed for AR . projects** . Smith/Klein ; ratify .
AU * *
Review of Plan Change
Order of Conditions SE 9 -1550 , request as to whether changes in vegetation shall
constitute a minor change to plan - on 10 Nancy May Path , 91 /14 ( 7/11 )
Robert Perry , PE , Cape Cod Engineering , Inc . , attended as representative .
Following discussion , the Conservation Commission agreed the above plan change shall be
considered minor, and thus approved . The plan shall be designated as such by the Conservation
Administrator. Klein/Smith AU ** .
Enforcement Order Ratification
1 . Violation of Order of Conditions SE 9 -1358 , 286 Robbins Hill Road , 38/81 (2/9 ) ,
Kevin and Elizabeth Hoffman - Sand Fill on Beach
Smith/Klein Ratify . AU .
Any Topic not reasonably anticipated by the Conservation Commission Chairman
No topics discussed .
Document signatures
Adjourned at 8 : 30 PM ,
Carol Spade
**(Commissioner) Moved , (Commissioner) Seconded . Denied = D Approved = A Approved
Unanimously = AU .
*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 .
Brewster Conservation Commission Minutes November 13 , 2018 13
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 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. Massachusetts Department of Agricultural Resources . . Jnvasive Plants in Massachusetts 111105
3, Administrative Report of the Conservation Administrator
4. Meeting video recording, Town of Brewster Website http.//town. brewsterma. us
Brewster Conservation Commission Minutes November 13 , 2018 14