EASTHAM CONSERVATION COMMISSION
24 November 2009
MINUTES
PRESENT: Glenn Collins, David Hoerle, Steve Smith, Sandra Larsen, Dennis Murley, Lorraine Giovinazzo
NOT PRESENT: Steve LaBranche.
STAFF PRESENT: Deputy Natural Resource Officer Amy Usowski.
ALSO PRESENT: Betty L. Fleischer, Karlene Eubler, Robert Larson, Karen Sweeney, Cregg Sweeney, John Sherff, Day Zschock, Martha Zschock,
Ted S. Miller, Tim Brady of East Cape Engineering, Inc., Donald K. Munroe of Coastal Engineering Company, Inc., John S. Adams.
Chairman Murley opened the meeting at 7:00 P.M.
The first order of business was approval of Minutes of 10 November 2009. Mr. Hoerle MOVED and Ms. Giovinazzo SECONDED the Motion to approve the Minutes of
10 November 2009 with a couple of minor corrections.
SO VOTED UNANIMOUSLY.
7:04 P.M. Administrative Review, Fleischer, 245 Corliss Way, Map 18,
Parcel 005.
Deputy Usowski explained this proposal to remove an Autumn Olive at this property to the left of the existing dock. Chairman Murley said this tree is on the “the dirty dozen” of invasive species on the State list which is no longer for sale in Massachusett’s nurseries any longer.
After some discussion about when to cut in order to prevent the spread of this species, Mr. Collins MOVED and Mr. Smith SECONDED the Motion to ratify this Administrative Review.
SO VOTED UNANIMOUSLY.
7:07 P.M. Administrative Review, Equi, 130 Windjammer Lane, Map 19,
Parcel 069.
Deputy Usowski explained this proposal to remove one dead Cedar and three Cherry trees at the above property and showed photos of the site.
There was no discussion. Mr. Hoerle MOVED and Ms. Giovinazzo SECONDED the Motion to ratify this Administrative Review.
SO VOTED UNANIMOUSLY.
7:10 P.M. Administrative Review, Town of Eastham, Rock Harbor (Doggie Beach), Map 19, Parcel 120.
Deputy Usowski explained that the Town would like to put up some snow fencing across the existing path in order to re-direct the path that dog walkers are presently using, and hand-cut a new three-foot-wide path on the Town property, off the Harris’ property. She showed photos of the site.
After some review of the Rock Harbor situation it was MOVED by Mr. Collins and SECONDED by Mr. Hoerle to ratify this Administrative Review.
SO VOTED UNANIMOUSLY.
7:18 P.M. Notice of Intent filed by Laura Day Zschock, 34 Tomahawk Trail,
Map 25, Parcel 017.
Chairman Murley announced this hearing. Karen & Cregg Sweeney were present along with the Applicant. Mr. Sweeney explained the proposal to construct an addition to the single-family home at the above-referenced property within the 100' Buffer Zone to the Coastal Bank. He said the project would take about five months from start to finish.
Deputy Usowski said Storm Damage Prevention and Flood Control are the interests the Conservation Commission is concerned with for this proposal. She said the area is fairly flat and the Applicant has stated that, as per the Conservation Commission guidelines, they will revegetate. She said there is an ongoing Order of Conditions for pruning the Cedars in the rear. She said that this proposal is completely separate from that project.
Mr. Collins asked if this proposal was just for the addition and not any additional work such as window replacement or siding and Mr. Sweeney said that right now the proposal is just for the addition. Chairman Murley said that if there is any additional work it would require a phone call at least, if not an additional hearing.
There was discussion of whether the trees being removed should be replaced and the Commissioners agreed that this was a good idea. Containment of construction debris was also discussed.
There was no further discussion and Chairman Murley closed this hearing. Mr. Hoerle MOVED and Mr. Collins SECONDED the Motion for approval with Conditions 1-18, 19, 20, 21, 22, 23, 26, 27, 29 to match existing and three Eastern Red Cedars 2'-3' in size shall be planted within the 100' Buffer Zone, 30, 32, 33, 35, 37 the same as on the existing Order of Conditions, 38 there shall be pre & post-construction meetings with the Conservation Agent to discuss the project and the placement of new Eastern Red Cedars, 39 any other work on house needs Conservation Commission approval.
SO VOTED UNANIMOUSLY.
7:40 P.M. Continuation on Hearing on Request for an Amended Order of Conditions filed by A. Richard Carlson, DEP SE 19-1347, 60 Rogers Lane, Map 21, Parcel 069.
Chairman Murley announced this hearing for after-the-fact approval for re-paving the existing driveway without Conservation Commission approval when it was damaged during another project at this residence.
Tim Brady of East Cape Engineering, Inc. was present for Mr. Carlson. He said that the last meeting was continued so that he could review the Minutes of the previous meetings. He said he felt the Minutes were inconclusive as to the point of driveway replacement. East Cape did not review the DVDs of the previous meetings. He said he what they would like to offer as mitigation is to re-vegetate from the Top of the Coastal Bank 20' wide and 100' long down to the edge of the marsh.
Mr. Brady said that an alternative to re-directing the runoff would in most cases be a driveway swale, but there is very little room between the edge of the pavement and the next property line so that is not an option. He said that the vegetation at the runoff point is in pretty good shape and he doesn’t feel it is being adversely impacted by the runoff.
Chairman Murley said he too reviewed the tapes of the meetings and he is comfortable in the position the Conservation Commission is taking on this situation as it was specifically discussed that the driveway would not be re-paved.
Mr. Brady said the driveway was not just damaged by the trenching but by the equipment and delivery trucks which came on the site. He said that hopefully some resolution could be reached short of having to tear out the whole driveway.
Deputy Usowski spoke about how the property had historically been mowed almost down to the Mean High Water line and how more footage has been incrementally added to the “No Mow” Zone over the last several years. She spoke about the runoff going to the side of the lot because of the driveway’s paved surface and because of the berm that was installed. She said she doesn’t know how this should be handled; but, if the driveway is to remain paved, it should not be treated in the future. She said she personally reviewed the tapes of the meetings and it was very clear that the driveway was not to be re-paved.
Discussion followed about guarantees in the future that the driveway will not be treated and the runoff entering the Cove. Mr. Hoerle said a “No Mow” Zone is no solution to the runoff.
Mr. Brady said he had nothing much more to offer than the “No Mow” Zone. He said a catch basin could be installed but that would only catch the water before it entered the ground or the Cove, but he doesn’t think it will help the problem. He said that sometimes it’s best to let the runoff go over the vegetation and let the vegetation do to it what it can. He said the vegetation does get impacted but it comes back as well.
There was further discussion about the “No Mow” Zone being the right thing to do anyway, so it’s not really a bargaining chip because mowing shouldn’t be taking place on a Coastal Bank at all. If the driveway was damaged by a truck it probably is not that thick anyway and it would only be a day’s work to take it up and replace it with pervious material. It was discussed that the plan said re-paving as necessary specifically to address damage from trenching. Mr. Hoerle said he feels there is only one correction for the problem and that would be taking up the driveway.
Mr. Brady said he thinks the driveway is around 1,300 sf. and there is around 2,000 sf. of Coastal Bank which could be allowed to grow. Chairman Murley asked Mr. Brady if more footage could be added to the “No Mow” Zone to make it a two to one ratio and Mr. Brady said he would be happy to look into that and maybe there are other things that they could do. He said he is certainly willing to speak with Mr. Carlson and see what they can come up with.
Mr. Brady said the upgraded septic system is about 80-90' farther from the Top of the Coastal Bank than the old one, but he feels the most important thing is not how far it is from the Top of the Coastal Bank, but how far it is from the Bordering Vegetated Wetland. He said that the improvement with the vegetation on the Bank is not particularly related to the problem with the drainage but is an improvement to other issues such as wildlife habitat and the function of storm damage prevention, and it will help to keep the Bank stable. He said it will not do a lot to help with the drainage that is coming down from the driveway. He said the new driveway drains in the same way as the old driveway and at this point there is no ongoing erosion due to the pavement that is there today.
Mr. Brady asked for a continuance of this hearing to see what other mitigation he could come up with and to speak with the owner.
Mr. Hoerle MOVED and Mr. Collins SECONDED the Motion to continue this hearing until 22 December 2009.
SO VOTED UNANIMOUSLY.
8:10 P.M. Request for Amended Order of Conditions filed by Peter Maglathlin, DEP SE 19-635, 20 Marion’s Way, Map 07, Parcel 556.
Chairman Murley announced this hearing. Mr. Brady was the representative for this Applicant as well. Mr. Brady said there is an existing stone wall that has been there for years and what is sometimes done today when a stone wall is built is to provide a stone apron at the top of the wall. He said what is happening here is that during storms, the water splashes over the top of the wall and erodes an area about six feet wide and starts to uncover the fabric that is beneath the existing wall. He said what they are proposing is to provide a stone bed for the first six or eight feet where the current erosion is. He said they are proposing 50-100 pound stones set on top of filter fabric.
Deputy Usowski showed photos of the site. She said there is some chink stone that has started to leak through and make its way toward the beach so she wanted to address that as well. She said there is a little bit of splash over and the rest of the bank is well vegetated.
Discussion followed about whether this could be accomplished by some other means such as fiber rolls. Deputy Usowski said the nourishment amount would not change because of this proposal. There was some discussion about smooth face versus rough face rocks.
There was no further discussion or questions and Chairman Murley closed this hearing and asked for a Motion. Mr. Collins MOVED and Mr. Smith SECONDED the Motion to amend Order of Conditions SE 19-635 to include the construction of a 6'-wide splash apron on top of the existing rock revetment to include Conditions 19, 20, 21, 22, 27, 29, 31, 33, 34, 36, and 38 that loose chink stone will be taken care of. The Conditions which are not already included in the original Order shall be included in this Amended Order of Conditions.
SO VOTED UNANIMOUSLY.
8:25 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, and 45 Bay Shore Lane, Map 13, Parcel 136 D-R.
Chairman Murley announced this hearing. David Lajoie of FELCO, Inc. was present for the Applicant and distributed copies of the plans. He reviewed that the issue with this proposal was the necessity of getting permission from the neighbor to the North (Friedman) to allow for the revetment to be constructed to the property line and to
re-locate some additional sandbags onto the Friedman property to protect from any end scour. He said the Friedman property presently has sandbags on it and they sent a letter giving their permission.
Chairman Murley said that the letter is in the file and part of the record.
Mr. Lajoie said he thinks the only other concern was whether the stones for the revetment would be smooth faced of rough faced and he said the Applicant is prepared to do whatever the Commission requires.
Deputy Usowski said she had no additional questions and the only thing still to be negotiated is the stone question; otherwise, this is all set for a vote.
Some discussion followed about rough-faced stones versus smooth-faced stones and Chairman Murley said it seems to him that rough-faced stones inherently break up wave action better than smooth-faced stones. Mr. Lajoie said that when the revetments for the three other cottages done, the Commission received an extensive report from Jim O’Connell, previously of WHOI, addressing nourishment, re-vegetation, and
re-location of the wall and never made any mention about smooth or rough-faced stones. He said they were proposing a smooth face to match the existing.
There was no further discussion and Chairman Murley closed this hearing. Mr. Smith MOVED and Ms. Giovinazzo SECONDED the Motion to approve this proposal with
Order of Conditions 1-18, 19, 20, 21, 22, 27, 29, 31 103 cy. for beach and 18 cy. compensatory storage, 32, 33 to be removed daily, 34, 36, 38 smooth or rough-faced; but, if rough, stones should be fitted as tightly as possible.
SO VOTED UNANIMOUSLY.
At this time there was a 5-minute break.
8:48 P.M. Notice of Intent filed by Donald Cook, 195 Shurtleff Road, Map 07, Parcel 197 & 205 and Map 10, Parcel 240.
Chairman Murley announced this hearing. Donald Munroe of Coastal Engineering Company, Inc. was present for the Applicant. He explained that there is an eroding Coastal Bank at this site with existing sandbag installations on the properties on either side. He said the erosion rate has been accelerated as the result of end scour. He said there is erosion not only on Mr. Cook’s property but it is coming in behind the existing sandbags. Mr. Munroe said that Mr. Cook is concerned with protecting the dwelling above and the deck is approximately 14' from the Top of the Coastal Bank.
Mr. Munroe went on to say that they had looked at using sandbags. He said they called DEP and DEP said they are more in favor of rock because the sandbags are considered a hard structure and the rock does more to dissipate wave energy. He said that the interesting aspect of the project is that the existing dwelling was worked on at an earlier date and at that time there was lengthy discussion about leaving Condition #31 out of the Order of Conditions. He said that there was a wall that was left behind in order to satisfy the fact that this is a pre-1978 dwelling and there are also some facts in the notes that there was a Commission member at the time who had done some research about the pre-1978 question and spoke with an attorney whose unofficial opinion was that the building would be considered pre-1978 because the wall
was left behind, and because at that time (1997) there were precedent-setting situations were erosion was taking place on a lot that had a house on it and that house was in jeopardy as a result of walls on both sides of the lot. He said the State approved proposals such as this, even with a post-1978 house, only in the interest of trying to maintain the bank as well as the existing dwelling. He said there are other records that they could probably come up with if they need to in order to help the Commission in making a decision on this proposal.
Mr. Munroe said the would be eliminating the wooden portion of the existing stairway that goes from the top of the wall down and put granite steps in there so there is no chance of the wood being dislodged or lost to wave action. He spoke about projected sea levels rising over the next 100 years and trying to educate people through manuals and discussions with Commissions about what is going to happen in the future.
Deputy Usowski said there is an issue with the way the Notice of Intent application was written and it did not get advertised correctly and also, no DEP number has been received yet so she said she would discourage having a vote on the proposal at this meeting. She said she has spoken with a lot of people about the issue of this being a pre-1978 house. She said it was partially re-constructed in the same footprint with one walls remaining. She said that at that time the Commission could not make a decision as to whether or not a hard structure would be allowed, so Condition #31 was left out of the Order of Conditions.
Chairman Murley shared his recollections of the debate around this issue at the time. He said that by saving a wall, at least for many applications, it was not considered a new dwelling. He said there was a case where just the chimney was left in order to keep the dwelling as existing and not new construction. He said there was also debate about replacement of less than 50% of the value of the building not being considered new construction.
Deputy Usowski said that at the time there were informal opinions from lawyers but nothing was formalized and leaving out Condition #31 only says that the Applicant may apply for a coastal structure but there is no guarantee that the request would be approved. She said she has heard several opinions from reputable sources that all differ.
Mr. Collins said that no decision can be made until the proposal is advertized correctly and he would like to have Town Counsel involved in helping the Commission with their decision. Deputy Usowski said she would ask permission to seek Town Counsel’s opinion.
Mr. Munroe said he doesn’t feel that the property owner is trying to circumvent anything and has taken other measures for protecting his property, such as snow fencing and planting and moving the house farther from the Top of the Bank when it was
re-constructed and this should be part of the deliberation in this matter.
Deputy Usowski said the erosion rate at this site is the highest along the Bay side, 1.8' per year. She said she doesn’t know if there would be an alternative in this case because the bank is so steep. Mr. Munroe said that since the hearing will be continued, he will be able to submit an alternative analysis.
There was some discussion about the height of the proposed revetment and the amount of annual nourishment if this revetment was installed. Mr. Munroe submitted a letter from one of the abutters consenting to the Applicant’s proposal to tie into their sand bag installation. He said they are still in discussions with the other abutter regarding this proposal. Deputy Usowski said the Commission would need written approval from both abutters because some work would be required on their properties.
The Commission reviewed the plan and briefly discussed the construction process and assigning a certain Commissioner to make regular site visits during construction.
Subsequently, Mr. Munroe requested a continuance of this hearing. Mr. Hoerle MOVED and Ms. Giovinazzo SECONDED the Motion to continue this hearing until
22 December 2009.
SO VOTED UNANIMOUSLY.
9:27 P.M. Informal discussion about proposal to remove trees from a Coastal Bank, John Sherff, 15 Bluebill Lane, Map 17, Parcel 520.
Deputy Usowski told the Commission that Mr. Sherff wants to remove some of the trees in the back of his property. She said she told him a Notice of Intent would be the proper application to make, but Mr. Sherff wanted to speak with the Commission.
Mr. Sherff said there are probably a dozen Oaks and one Wild Cherry. He said there may be more but he doesn’t know that yet. He said they are all between his house and the Salt Marsh.
Deputy Usowski said the resource in question here is the Coastal Bank and that is why she suggested a full Notice of Intent because it is for vista and it is a Coastal Bank. She said that the Commission could do a formal site visit to determine what might be opened up and what could be left natural.
Chairman Murley outlined the three levels of application to the Commission, Administrative Reviews, Requests for Determination of Applicability, and Notices of Intent. He said that a full Notice of Intent would probably be the best application for this project since it will involve a number of trees. He said he feels the homeowner would be happier at the end of this process and the Commission’s requirements would be satisfied. He said an Order of Conditions would be recorded on the deed for the property and the view corridor would become part of the property. Chairman Murley said there is an inherent understanding that the Buffer Zone between the house and the resource has a value and any activity in the Buffer Zone needs to be determined to have no adverse impact to the resource.
9:42 P.M. Request for Certificate of Compliance, Emerson, DEP SE 19-1079, 355 Mill Road, Map 11, Parcel 081.
Deputy Usowski reviewed for the Commission that this Order of Conditions was for the construction of a single-family dwelling within the Buffer Zone to a Bordering Vegetated Wetland. She said that the Applicant’s representative submitted a list of deviations from the approved plan. She said the one big deviation was the installation of sprinkler system which has been disconnected per her recommendation. She said there is a set of stairs on the on the South side of the dwelling, the split-rail fencing has been installed along the limit of work on the West side only and not the entire length of the “No Mow” Zone.
It was decided that it may cause more damage to the area to complete the installation of the additional fencing and the area is well vegetated so it is not necessary. The Commission decided that an “As-Built” should be submitted showing exactly what’s there and to plant the back of the house with Winter Rye and Clover to stabilize the area.
Deputy Usowski told the Commissioners that NStar will be starting to manually cut along the power lines on November 30th and they will probably be working for a month.
She told the Commission that the next meeting would be on December 7th at the Council on Aging because of the elections on the 8th at Town Hall.
There was no further business and Mr. Smith MOVED to adjourn at approximately
9:57 P.M. Mr. Collins SECONDED the Motion.
SO VOTED UNANIMOUSLY.
Respectfully submitted.
Kay Stewart-Greeley,
Clerk
cc: Town Administrator
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