EASTHAM CONSERVATION COMMISSION
10 November 2009
MINUTES
PRESENT: Glenn Collins, David Hoerle, Steven LaBranche, Steve Smith, Sandra Larsen, Dennis Murley, Lorraine Giovinazzo
STAFF PRESENT: Deputy Natural Resource Officer Amy Usowski.
ALSO PRESENT: Len Sussman, Peter Coneen, Peter Kelligrew of Massasoit Hills Homeowners Association, Carl Ericson, George Reilly, Russ Holden of Ryder & Wilcox, Inc., David Hale, David Bushley, Traute Bushley, Katelyn Siddell of East Cape Engineering, Inc.
Chairman Murley opened the meeting at 7:00 P.M.
The first order of business was approval of the Minutes of 13 October 2009. Mr. Collins MOVED and Mr. Smith SECONDED the Motion to approve the Minutes of
13 October 2009 with a couple of minor corrections.
THE VOTE WAS 6 IN FAVOR WITH ONE ABSTENTION.
MOTION CARRIED.
7:04 P.M. Administrative Review, Kelly, 24 Salt Marsh Way, Map 17, Parcel 687.
Deputy Usowski said this AR was for the removal of some trees outside the original Limit of Work and revegetation within the original Limit of Work.
Peter Coneen was present for the Kellys and explained the proposal to the Commission. Deputy Usowski showed photos of the site and there was discussion about exactly what trees need to be removed.
Mr. Collins MOVED and Mr. Hoerle SECONDED the Motion to ratify this Administrative Review for the removal of specific trees numbered 1, 2, 3, 5, and 7.
SO VOTED UNANIMOUSLY.
7:20 P.M. Request for Amended Order of Conditions filed by Massasoit Hills Homeowners Association, DEP SE 19-823, Salt Works Beach,
Map 04.
Chairman Murley announced this hearing for the proposal to construct a permanent stairway and handrail at the Association Beach.
Peter Kelligrew was present for the MHHA and explained the proposal to construct a permanent stairway with a handrail in place of the walkway which was approved in 1997.
Deputy Usowski reviewed the proposal for the Commission and suggested to Mr. Kelligrew that some type of benchmark be installed at the beach so that if in they want to nourish the beach in the future there is some type of benchmark to measure the sand. She said the stairway would be similar in type to the stairway the Town constructed to the North of this site at the Town section of the beach. She said the stairway would not be pressure treated and will be constructed by hand.
Chairman Murley commented that the Association has been a good steward of their land.
There was no further discussion and Chairman Murley closed this hearing. Mr. Hoerle MOVED and Ms. Giovinazzo SECONDED the Motion to amend Order of Conditions
SE 19-823 to include Condition 19 Work Notice, 27 Liability, 31 Beach Nourishment: that a permanent bench mark should be installed and nourishment is to be done on an “as-needed”basis with notification to and approval of the Conservation Commission, and 33 Construction Debris.
SO VOTED UNANIMOUSLY.
Brief discussion followed about the letter received regarding dogs on the beach and Mr. Kelligrew said he will speak to the Association members about it at their annual meeting.
7:35 P.M. Continuation of Hearing on Notice of Intent filed by Gerald Trantina, 14 & 12 Sherwood Road, Map 13, Parcels 133 D-R & 133 E-R.
Chairman Murley announced this hearing. David Lajoie of FELCO, Inc. was present for the Applicant. He distributed revised plans dated 10/21/09. He said the revised plan shows sandbag replacement on the abutting property to the North. He aid this is scheduled to be heard at the next Conservation Commission meeting.
Deputy Usowski said there was a mistake in the technicalities of filing and the correct addresses were not put in the newspaper ad. She said the activity on the North with the sandbag replacement was not advertised. She said this has been corrected and will be advertised. She went on to say that she received a letter from Betty Friedman’s guardian, the abutter to the North, stating that they are amenable to what is proposed. She said that this permission is necessary so this is all set for next meeting. She said if the Commission had any questions about the two adjoining rock revetments that could be addressed at this meeting.
There was some discussion about whether the revetments would be smooth or rough. Mr. Lajoie said that the existing revetment is smooth but because of it’s height and the vegetation on top there is no erosion above the wall. He said that whatever way the Commission prefers is the way that it will be done.
Mr. Lajoie requested a continuance. Mr. Hoerle MOVED and Mr. LaBranche SECONDED the Motion to continue this hearing until 24 November 2009.
SO VOTED UNANIMOUSLY.
7:45 P.M. Notice of Intent filed by Kenneth Mitchell, 365 Shurtleff Road, Map 07, Parcel 164.
Chairman Murley announced this hearing for the proposal to construct a boardwalk within 50' of the Coastal Bank, construction of a stairway across the Coastal Bank, construction of a sand-drift fence at the Toe of the Coastal Bank, and planting on the Coastal Bank at the above-mentioned property.
George Reilly of Land Design Associates was present for the Applicant and explained the proposal to the Commission. He said that essentially they are proposing to replace what is already existing and to plant Beach Grass on the bank with a biodegradable Biomat.
Deputy Usowski showed photos of the site. Discussion followed about the landing at the bottom of the stairs, whether the stairs could be reconstructed in the existing location, and the placement of the sand-drift fencing.
Mr. Reilly said that when they looked at the topography they thought that maybe it was a better plan to slide the stairway over 5' where there would be a pretty flat platform and a little less elevation to cover; but, it the Commission thinks it’s better for the bank they can move it back. He said they can go back to the original location if the Commission thinks it’s best.
There was discussion about whether the path would be widened and how much vegetation would be removed. Mr. Reilly said he thinks the path could be adjusted to avoid whatever vegetation is necessary.
It was discussed whether wood or metal should be used for supports for the stairway and galvanized metal as opposed to stainless steel; also, the condition of the erosion control and the debris on the site was a concern.
The Commissioners agreed that it would be best to reconstruct the new stairway in the location of the existing stairway.
Mr. Reilly subsequently requested a continuance. Mr. Hoerle MOVED and Ms. Giovinazzo SECONDED the Motion to continue this hearing until 7 December 2009.
SO VOTED UNANIMOUSLY.
8:28 P.M. Request for Amended Order of Conditions filed by David E. & Teresa Hale, DEP SE 19-1265, 75 Bay View Drive, Map 13, Parcel 013.
Chairman Murley announced this hearing. Commissioner Hoerle recused himself from this hearing. Russ Holden from Ryder & Wilcox, Inc. and Mr. Hale were present to speak to this request.
Mr. Holden this hearing was in order to show the “As-Built” conditions due to deviations from the approved plan. He said the “As-Built” plan shows the following deviations from the approved plan: Outside steps and retaining wall giving access to the basement on the North side of the dwelling; a reduction in the deck area of 308 sf.; the patio off the West side of the deck was not built; a reduction in the gravel driveway of @ 900 sf; and two AC units off the North side of the dwelling. He said the two sketch plans show the planting area and the species and the area that has been left to naturalize.
Deputy Usowski reviewed the new “As-Built” plan as compared with the originally approved plan and the planting lists. The Commissioners reviewed the plans. Deputy Usowski showed photos of the site.
Mr. Hale said Beach Plum and Bayberry were not readily available when he
re-vegetated and Rosa Rugosa was substituted. He said it is his feeling that within a couple of years the area will be completely grown in. Mr. Hale said the basement access is in an area which was already disturbed.
The point of market availability of a certain plant when a landscape plan is approved was discussed and whether the Commission in the future should think about whether or not certain plants can be substituted for others depending upon availability and whether this situation could have been avoided by a phone call.
Chairman Murley reviewed the deviations from the approved plan with Mr. Holden. He said that the basement access is certainly much smaller than the reductions within the 100' and that the whole house was moved some distance back from the Top of the Coastal Bank.
There were no comments from the floor and no further discussion by the Commission. Chairman Murley closed this hearing and called for a Motion.
Mr. Smith MOVED and Mr. LaBranche SECONDED the Motion to amend Order of Conditions SE 19-1265 and that the plan of record becomes plant entitled “As-Built Site Plan Prepared for: David and Teresa Hale, 75 Bay View Drive, Eastham, MA”, dated September 2, 2009, hand colored with plant locations listed by David S. Hale.
THE VOTE WAS 5 IN FAVOR WITH ONE ABSTENTION.
The Commission discussed whether or not to vote on issuing a Certificate of Compliance at this time. Chairman Murley said he would prefer to wait until the Commission has received the recording information for the Amended Order before voting upon the issuance of a Certificate of Compliance.
At this time there was a 5-minute break.
Commissioner Hoerle re-joined the Commissioners in the meeting room.
9:02 P.M. Request for Determination of Applicability filed by Peter Maglathlin, 20 Marion’s Way, Map 07, Parcel 556.
Chairman Murley announced this hearing for the proposal to remove an existing retaining wall; construction of a new retaining wall 7' to the South; re-grading where necessary for the new wall; and, construction of a new elevated walkway to connect two existing decks at property located at the above-mentioned property.
Katelyn Siddell of East Cape Engineering, Inc. was present for the Applicant and explained the proposal to the Commission. She said that they don’t feel that this project will impact the form and function of the Coastal Bank to act as a natural buffer or sediment source and that is why they have requested a Determination of Applicability.
Deputy Usowski said the two interests of the Act are Storm Damage Prevention and Flood Control so the Commission needs to decide whether this work, 52' from the Top of the Coastal Bank will have any impact on those two functions. She said there is some native and some invasive vegetation that will need to be removed along with a fairly large amount of fill to move the retaining wall.
There was discussion regarding the staircase and removal of fill from the site. Chairman Murley reminded Ms. Siddell that there should be no pavement or hardening used in the parking area.
There were no more questions and Chairman Murley closed this hearing. Mr. Hoerle MOVED and Mr. Smith SECONDED the Motion for a Negative Determination for Reason #3.
SO VOTED UNANIMOUSLY.
9:13 P.M. Administrative Review, John & Karen Klingel, 90 Old State Highway, Map 20, Parcel 117B.
Len Sussman of Curtis Pond Architects in Chatham was present for the Klingels and explained the proposal to demolish the existing kitchen/family room and replace it with a new kitchen/family room. He said the new room will be slightly longer in an East/West direction than the existing and slightly wider. He said this involves demolition of the
existing deck and replacement with a new deck. He said that a sliver of the new deck will extend into the 100' Buffer to the wetland. He said the area is now lawn. He said they will try to save the vegetation (Hydrangea) and replant it in the same location.
Deputy Usowski said the work is about 95' from the Coastal resource area. She said there is no Limit of Work on the plan, but they would only need about five feet and the Commission would like one to prevent materials from going farther into the Buffer Zone. She said she doesn’t see any adverse impacts to the resource because of this encroachment.
There was an inquiry about whether or not the isolated wetland was taken into account in the proposal and Deputy Usowski said it was.
There were no further questions and Chairman Murley asked for a motion. Mr. Collins MOVED and Ms. Giovinazzo SECONDED the Motion to ratify this Administrative Review.
SO VOTED UNANIMOUSLY.
9:20 P.M. Request for Extension Permit, Civita, DEP SE 19-986, 760 Campground Road, Map 7A, Parcel 001.
Deputy Usowski reviewed this request for the Commissioners. The original Order of Conditions was for the re-construction of the existing stone revetment at this above property in 2000. She said that Mr. Civita has received two Extensions in the past for maintenance of the revetment and is nourishing annually.
Mr. Collins MOVED and Mr. LaBranche SECONDED the Motion to grant a 3-year Extension Permit for DEP SE 19-986.
SO VOTED UNANIMOUSLY.
9:22 P.M. Town of Eastham, DEP SE 19-1071, Rock Harbor Marina, Map 19, Parcel 120. - Discussion with Mr. & Mrs. David Bushley, 480 Dyer Prince Road.
Mr. And Mrs. Bushley were present to speak with the Commission about their concerns regarding Rock Harbor.
Deputy Usowski reviewed the file for the Commissioners. The dredge was done in 2004/05 and a small amount of the dredged material went to Orleans and a large amount went to Eastham. She read the Condition from the Order relative to revegetation. She said the project was finished in 2005 and was revegetated with Rye Grass instead of American Beach Grass as stated in the Order of Conditions. She said that what is there now is a mix of Phragmites and Umbrella Sedge. She said that dredge material is not suitable for planting so it was never revegetated as it should have been. She said that a Certificate of Compliance has not been issued for this project.
Deputy Usowski said the question is how does the Conservation Commission have the Town comply with the Order of Conditions that was issued in 2002 which was not completed.
She said it’s up to the Commission how to proceed because the wording of the Order of Conditions is quite poor and there is a lot of room for interpretation.
Mr. Bushley said he has a problem with the height of the dredge material. He said that he spoke with the Town Administrator about this and a survey has not been done. He said the road and the parking lot for the stick docks never existed prior to the dredge. He said that the Order of Conditions was issued for three years and in the Town of Eastham 2007 Annual Report, that officially notifies everyone in Town, the Harbormaster’s Report states that the project is done. He said that statement negates the term of the Order of Conditions that remains open because it is not in compliance from a legal standpoint.
Mr. Bushley said that in regards to interpretation as to whether or not the Beach Grass has to live, if you look at the Army Corp of Engineering statement under their permit it states that the area needs to be restored to how the area was prior to the activity that took place. He said the Town is out of compliance with the Army Corp of Engineers permit, the DEP permit and the WPA Order of Conditions. He said that if a homeowner did this the Commission would be justifiably irate.
Chairman Murley said that the harbor has been dredged probably three times over the last twenty years and this was done in conjunction with the Town of Orleans. He said the Town should be held to the same or a higher standard than a homeowner. He said that in the past the dredge spoils were used for beach nourishment and through his employment with the Audubon he has planted in this material and had zero survivability of very viable Beach Grass. He said that Phragmites should never be on “barrier beach”.
Chairman Murley said he thinks the direction to proceed in would be to go to the Board of Selectmen and place this on the table. He said it would be best to put this in the hands of the Selectmen for their review to see what can be done. He said he doesn’t feel an Enforcement from the Conservation Commission to the Town would work in this instance.
There was some further discussion and ultimately it was agreed that the Conservation Commission will request to appear before the Board of Selectmen at a public meeting to discuss the issues and what can be done to correct the situation.
Deputy Usowski reviewed the path for dog walkers and whether or not it was on the Harris property or on Town property and how the Commission wanted to proceed. She said she would check the map again. Mr. Collins said that when the area is surveyed perhaps that area could be surveyed as well.
Chairman Murley said he had received a letter to the Chairman of the Conservation Commission relative to the dog problems. He said that he met with the people and told them that the “Dog Beach” area had been created through the Board of Selectmen and if there are problems they probably should be addressed through that Board.
The Bushleys expressed their various concerns about the dogs, the traffic, this area being an A.C.E.C. and a shellfish area. They said the dog situation has gotten out of control.
Deputy Usowski said that the Natural Resources Department has been trying to enforce the regulations relative to dogs on the beaches during certain hours and are regularly patrolling the beaches.
The Bushleys said that the problem has gotten worse over the past two years to the point that they have called the Police about the cars speeding down Dyer Prince Road to get to the beach.
There was no further business and Mr. Smith MOVED to adjourn at approximately 11:00 P.M. Mr. Hoerle SECONDED the Motion.
SO VOTED UNANIMOUSLY.
Respectfully submitted.
Kay Stewart-Greeley,
Clerk
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