EASTHAM CONSERVATION COMMISSION
24 January 2006
MINUTES
PRESENT: Glenn Collins, David Hoerle, Don Intonti, Marcel Boelitz, Terry Kelleher, Steve Smith.
STAFF PRESENT: Deputy Natural Resources Officer Katelyn Merrill, Conservation Clerk Kay Stewart-Greeley.
ALSO PRESENT: Jason Price, Tim Brady of East Cape Engineering, Inc., Russ Sandblom, Susan Wright, Hans Muellars, Veronica Muellars, John Driscoll, Dennis Murley of Mass Audubon, Larry Greeley, Tim Klink, Gunther Klink, David Lajoie of FELCO, Inc.
The Commission welcomed new Commissioner Steve Smith.
Commissioner Boelitz, also a member of the Water Resources Advisory Board, reviewed for the Commission the status of two proposed water projects in Eastham. He said that one is a small-scale project for a water supply system to supply the Moll’s Pond area and the Elementary School. He said that Transfer Station contaminants are spread over a fairly wide area. He said the suggestion is to supply drinking water for this area and some of the current testing can be stopped. He said there is no remediation possible. Mr. Boelitz said there are two alternative sources. He said that one is a small tract of land near where the proposed Ocean Beach property is, consisting of about Fourteen (14) acres. He said the Town has sent a proposal to DEP. He said another possible source is the Nauset
Regional High School which has excess capacity, but the land belongs to three towns. He said the Orleans water supply is a possible source as Orleans has an excess capacity.
Mr. Boelitz went on to say that the other proposal is for a Town-wide water supply. He said there has been quite a bit of testing Town wide for nitrates in private wells. He said that originally the nitrate contamination was moderate and only about One Percent (1%) of the wells tested failed. He said that in South Eastham the number of failed wells has increased by about Four Percent (4%). He said that there were about Fifty (50) failed wells initially, and that number has increased to Two Hundred (200) homes which have
water that is not drinkable. He said there are only three (3) alternatives available. He said that one alternative is small water supply systems scattered around Town. He said the second option is getting water from Orleans, which gets water from a different aquifer than Eastham; but, there is a question as to what the effect would be if you draw water from one lens and put it in another lens. He said that Orleans presently is using about a million gallons of water a day at peak usage. He said the third option is one that hasn’t had much traction up until now, but it turns out that the best aquifer is in the National Seashore area and it has no wetlands or Vernal Pools around it. He said the idea would be to trade a tract of land the Town owns for two to three million gallons of water a day or
whatever. He said that environmentally this would cause no impact, but the current rules and statutes don’t really allow something like this and it would require legislation.
Mr. Boelitz said that the Environmental Protection Agency (EPA) is going to start setting maximum nitrate levels for embayments and sailing ponds in all towns on an individual basis; then, it will be up to the towns to figure out how to manage the water shed in order to reduce the nitrate levels.
Mr. Boelitz gave the Commissioners some handouts to review.
7:20 P.M. Chairman Collins brought the meeting to order in order to consider the following:
Notice of Intent filed by Robert Fair, 160 Meetinghouse Road, Map 12, Parcel 294B.
Chairman Collins announced this hearing. David Lajoie of FELCO, Inc. was present for the applicant and distributed plans to the Commissioners. This project, for the construction of a second-floor addition to an existing dwelling and the installation of a new septic system, was approved three years ago and the Order of Conditions expired.
Mr. Lajoie said the property abuts Moll’s Pond and the project is outside the Fifty foot (50') mark from the Bordering Vegetated Wetland. He said that in conjunction with the addition they need to install a new septic system. He said the leaching field will go in the driveway.
Deputy Merrill had no comment on this proposal .
There were no comments from the floor and Chairman Collins closed this hearing. Mr. Hoerle MOVED and Mr. Kelleher SECONDED the Motion to approve this project with Order of Conditions 1-19, 21, 22, 23, 24, 25, 28, 31, 37.
SO VOTED UNANIMOUSLY.
7:35 P.M. Continuation of Hearing on Notice of Intent filed by Jason & Gretchen Price, 420 South Sunken Meadow Road, Map 04, Parcel 050.
Chairman Collins announced this hearing. Tim Brady of East Cape Engineering, Inc. was present along with the applicant, Jason Price. This proposal had never been reviewed and had been continued to give the applicants time to finalize their plans.
Mr. Brady explained that the original plan which was submitted was for a larger house and the applicants had decided not to do that so Mr. Brady had submitted a revised plan. He said the existing shed on the property will be removed and the area will be allowed to re-establish itself as a natural area. He said that the construction of the septic will require mounding, with a retaining wall on one end, and grading will take place to cover up the system. He said that the Board of Health has already issued a permit for the septic system. Mr. Brady suggested that when they are ready for final grading an on-site meeting take place to review where they can allow the existing lawn area to revegetate.
Deputy Merrill suggested that the mowing line might be brought back from the edge of the tree line to get some more stratification. Mr. Brady said that is the area he had in mind.
Chairman Collins inquired about the ACEC elevation and Mr. Brady said that the
100-year flood elevation is at Twelve feet (12') and typically the ACECs start at elevation Ten feet (10'). He said the existing building is not above the Flood Plain but the proposed building will be.
Mr. Hoerle asked about the vinyl liner and whether it is subject to breakdown over time. Mr. Brady said that the only thing that seems to degrade the vinyl is sunlight and this will not be subject to sunlight.
Mr. Boelitz said he thinks there should be a well-defined, delineated, “No Mow” zone with a physical delineation. Mr. Price said the nature of the Fifty foot (50') line is a little jagged and Mr. Brady said this is something which can be worked out at the on-site meeting.
There were no comments from the floor and Chairman Collins closed this hearing. Mr. Kelleher MOVED approval of this project with Order of Conditions 1-19, 21, 22, 23, 24, 25, 28, 31, 37, 42 planting of native species within the Buffer Zone shall be coordinated with the Natural Resources Officer. Mr. Hoerle SECONDED the Motion.
SO VOTED UNANIMOUSLY.
7:55 P.M. Continuation of Hearing on Notice of Intent filed by David Driscoll, Harmes Way Realty Trust, 385 Harmes Way, Map 01, Parcel 112.
Chairman Collins announced this hearing. John Driscoll was present.
Deputy Merrill told the Commissioners that she had reviewed the Consent Order with Jim Mahala of DEP. She said that the Consent Order between the applicant and DEP has a lot of language which needs to be addressed and the State has told the applicant to come back to the local level.
Mr. Collins said that the Consent Order speaks about a mound area and asked if this application addresses that. The Commissioners reviewed the plan and viewed the photos. There was discussion about covering the trap rock.
Deputy Merrill explained to Mr. Driscoll that a certain volume of sand needs to be maintained. Mr. Driscoll disagreed with the Conservation Commission setting the amount of nourishment and Mr. Boelitz said gauges can be used to measure the volume and when the gauge reaches a certain level it would be time to nourish, so if the applicant agrees with that the Commission would be able to issue an Order.
Deputy Merrill told Mr. Driscoll the Commissioners are not attorneys and are not required to interpret a legal document. Chairman Collins commented that the Consent Order is ended and this is a completely new filing under the jurisdiction of the Conservation Commission.
Mr. Driscoll asked for a continuance of this hearing until 28 February 2006. Mr. Hoerle MOVED and Mr. Kelleher SECONDED the Motion for a continuance of this hearing until 28 February 2006.
SO VOTED UNANIMOUSLY.
Dennis Murley of Mass Audubon commented from the floor saying that the language of the applicant’s proposal is such that the work will be done when the applicant is willing to do it or whatever. He told the Commission that this site is habitat for Diamondback Terrapins and Piping Plovers etc. and urged the Commission to address this in any future Order of Conditions.
8:12 P.M. Continuation of Hearing on Notice of Intent filed by Land Cape, Inc., 90 Blueberry Drive, Map 21, Parcel 044/045.
The applicant’s representative, Tim Brady of East Cape Engineering, was present along with the applicant, Tim Klink of Land Cape, Inc.
Mr. Brady reviewed the proposal for a pier for a residential dwelling for property on Town Cove for the new Commissioners and explained that there was some question about shellfish in the area and whether there was enough water for a boat. He said they prepared a Covenant which goes with the proposal and distributed it to the Commissioners for their review. He suggested that the Covenant sets limitations on the Order of Conditions, could be posted on the site, and could be monitored annually. He said they had previously suggested making a contribution to the Shellfish Department, but there is no mechanism in place to allow that to happen. He said they would like the Commission to review the Covenants.
Chairman Collins said that two shellfish studies were done, one by the applicant and one by the Town, which had similar findings. He said the Town study found a few more shellfish in the area, but not a lot. He said there is not really any practical way to get more shellfish out there.
Commissioner Boelitz said that there is only a foot of water at the site and the discussions about this fact had not gone anywhere. He said that until this question is resolved he doesn’t think he could possibly vote for approval of the proposal.
Mr. Kelleher had no comment and said he agreed with Mr. Boelitz.
Deputy Merrill said that for the purpose of mitigation, if you look at the standards for the Wetlands Protection Act, it has to do with a direct swap; so, she thinks that any donation would have to go directly to shellfish. Also, she said, how does one weigh a negative impact which is going to change the ecosystem. How do you weigh that and how do you measure that?
Mr. Hoerle said he thinks there needs to be not just a status quo of where the Town Cove is at the present time, but the Town needs to look at improvement, so there needs to be a quantifiable measure of appreciation of the Town Cove.
Mr. Brady commented that there are lots of piers in Town Cove today, just like the proposed one, which the Conservation Commission has previously approved.
Deputy Merrill asked if there was a stipulation which says that if the pier shows negative impacts it will be removed. Mr. Brady said he thinks there must be some kind of standard to measure negative impacts.
Mr. Brady said he would be comfortable with some kind of inspection process. Mr Boelitz said the Covenant document is unenforceable. Mr. Brady told him that Covenants are legally enforceable and Mr. Boelitz said he hadn’t heard anything which would change his opinion on this topic.
Mr. Hoerle referred to Mr. Brady’s statement that the Conservation Commission has approved docks in the past. He said there are so many changes in Town Cove that the only thing the Commission can “hang it’s hat on” is that this is an environmental issue which they have not looked at enough in the past.
Commissioner Smith asked about the float stops and how the applicant intended to keep the boat off the bottom. Mr. Brady replied that you cannot keep the boat off the bottom and if it were on a mooring it would be on the bottom as well. Mr. Smith said there is no stipulation whether the boat motor is a four-stroke of two-stroke. Mr. Brady said it would be a four-stroke.
Mr. Boelitz commented that the fact that there are precedents make him even more determined that the Commission should not approve another one.
Chairman Collins said he would like to get the Covenant reviewed by Town Counsel. He said if there is some kind of mechanism to get some mitigation, he thinks it could be a positive thing.
Mr. Hoerle said that if there were a quantifiable way that the applicant could work with Mr. Lind and Deputy Merrill to show that a set amount of money could be contributed to improve conditions at the Cove then he would be open to this application.
Mr. Boelitz said he is not opposed to docks, but wants people who build docks to pay for the damage.
Deputy Merrill said that she thinks some sort of program needs to be put in place, because mitigation is never better than what existed.
Mr. Klink asked about how the nourishment program for the beaches came to be and Deputy Merrill said nourishment can be figured out and this cannot be measured so until a vehicle exists by which it can, there is no way to determine what to do.
Chairman Collins MOVED to formally request Town Counsel to review the Covenant and to determine the legality of how an amount of money can be donated for shellfish propagation. Mr. Boelitz SECONDED the Motion.
SO VOTED UNANIMOUSLY.
Mr. Brady requested another continuance until 14 March 2006. Mr. Hoerle MOVED and Mr. Kelleher SECONDED the Motion to continue this hearing until 14 March 2006.
SO VOTED UNANIMOUSLY.
8:45 P.M. Request for Amended Order of Conditions filed by Land Cape, Inc., DEP SE 19-1120, 90 Blueberry Drive, Map 21, Parcel 044/045.
Chairman Collins announced this hearing. This request was made to address changes in the landscaping plans, septic system location and the installation of an irrigation system, all of which were different or not included on the approved plan.
The Commissioners reviewed the new and old plans. Mr. Klink, the applicant, explained the changes to the Commissioners. He said that the “No Mow” zone got bigger, the size of the approved Eighteen foot (18') deck was decreased to Twelve feet (12') and there is no patio as on the approved plan. He said that at the left side of the property is a stone area which houses utilities. He said that the septic plan which was approved showed a different groundwater elevation so the location of the septic system was moved slightly. Mr. Klink said he increased the driveway size by Fifteen feet (15')
and also created a mulch pathway for the neighbors. Also, he said the approved plan shows a natural lawn, but a sod lawn was installed instead and an irrigation system was installed for it as well. Mr. Klink said he is working with the Mosquito Control about the location of the drainage pipe in the ditch which was raised too high. He said the lawn has never been fertilized.
Chairman Collins asked for Deputy Merrill’s recommendation. Deputy Merrill said that the Conservation Commission has a precedent about irrigation systems and asked Mr. Klink how close to the “No Mow” zone the irrigation system comes. Mr. Klink said that only the new vegetation which exists around the house is irrigated. Deputy Merrill said that all of these changes are in violation of the Order of Conditions and she thinks that it all needs to go back to what was approved in the first place. She said she doesn’t think the Commission would have approved the irrigation system.
Mr. Hoerle commented that sod is heavily fertilized before you get it so the irrigation system at this point is leaching nitrogen into the water system, which is leaching into the wetland. He said that a year from now the lawn will die without fertilization. He said that a lot of money has been put into a sod lawn which is going to deteriorate.
Mr. Klink said he can cap off the system at the house and turn it off. Mr. Boelitz commented that it is an enforcement thing and went on to say that Mr. Klink has been before the Commission repeatedly because of violations and variances from what was approved. He said that as far as he is concerned Mr. Klink should be fined and the irrigation system should be removed. He said that Mr. Klink has pushed the Conservation Commission time and again right up to the wall and seems to have no hesitation doing stuff that hasn’t been approved.
Mr. Kelleher had no comment and Mr. Intonti said he thinks that they should stick to the original Order and anything which is outside that Order needs to be brought into compliance with the originally approved plan.
Mr. Klink said that everything was dependent on the septic installation. Deputy Merrill said that the plant list has not been changed. Chairman Collins said the biggest violation is the irrigation system and he thinks it should be removed, period, taken out of there. He said that all the other things are tolerable but the irrigation system is not.
Mr. Kelleher MOVED to approve the septic system location and the revised landscaping plans with the irrigation system omitted. Mr. Intonti SECONDED the Motion.
SO VOTED UNANIMOUSLY.
Further, Mr. Hoerle MOVED and Mr. Boelitz SECONDED the Motion that an Enforcement Order be issued relative to the installation of the irrigation system, calling for it’s complete removal.
SO VOTED UNANIMOUSLY.
With a couple of minor corrections, Mr. Hoerle MOVED approval of the Minutes of
10 January 2006. Mr. Kelleher SECONDED the Motion.
THE VOTE WAS FIVE IN FAVOR WITH MR. SMITH ABSTAINING.
9:17 P.M. Request for Certificate of Compliance, DePoalo DEP SE 19-1068, 30 Lee Court, Map 11, Parcel 180.
Chairman Collins read a letter from Tim Brady of East Cape Engineering, Inc. and the Commissioners reviewed the approved plans and viewed photos of the site and decided that the “No Mow’ zone was not in compliance with the approved plan and there were stairs at the site which were not shown on the approved plan.
Mr. Intonti MOVED to deny a Certificate of Compliance at this time and Mr. Kelleher SECONDED the Motion.
SO VOTED UNANIMOUSLY.
9:28 P.M. Request for Extension, Maglathlin DEP SE 19-635, 20 Marion’s Way, Map 07, Parcel 556.
Chairman Collins read a letter from Tim Brady requesting an Extension for this Order of Conditions. This site is being nourished annually. Mr. Hoerle MOVED and Mr. Kelleher SECONDED the Motion to grant an Extension for DEP SE 19-635.
SO VOTED UNANIMOUSLY.
There was no further business and Mr. Kelleher MOVED to adjourn at approximately
9:45 P.M. Mr. Hoerle SECONDED the Motion.
SO VOTED UNANIMOUSLY.
MEETING ADJOURNED.
Respectfully Submitted,
Kay Stewart-Greeley,
Clerk
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