EASTHAM CONSERVATION COMMISSION
26 January 2010
MINUTES
PRESENT: Glenn Collins, David Hoerle, Steve Smith, Sandra Larsen, Lorraine Giovinazzo, Steve LaBranche.
NOT PRESENT: Dennis Murley.
STAFF PRESENT: Deputy Natural Resource Officer Amy Usowski.
ALSO PRESENT: Marcia & Jim Sexton, Theresa Sprague of Wilkinson Ecological Design, Joan Dvorsack, Don Munroe of Coastal Engineering Company, Devette Russo, Bob Pfeifer, Ed Tarra, Seth Wilkinson of Wilkinson Ecological Design, Stephanie Sequin of Ryder & Wilcox, Inc.
Vice-Chairman Hoerle opened the meeting at 7:00 P.M.
The Commissioners reviewed the Minutes of 12 January 2010. Ms. Giovinazzo MOVED and Ms. Larsen SECONDED approval with one correction.
SO VOTED UNANIMOUSLY.
7:03 P.M. Administrative Review, Cicero, 45 Bayview Road, Map 19, Parcel 015.
Deputy Usowski reviewed this request to top approximately sixty Locust trees to the height of 25' and ten Cherry trees to the same height. She said the Applicant would also like to remove a few lower limbs from six Cedar trees. She said that all the work is within 100' of a Salt Marsh. Deputy Usowski recommended that the Commission hold off on making a decision on this AR. She said the property is pretty manicured and it is obvious that there has been vista pruning taking place at this site without a permit. She said she feels that this is too much work to address under an AR and until she speaks with the Applicant and re-visits the site she suggested holding this application.
Mr. Smith MOVED and Ms. Giovinazzo SECONDED the Motion to continue this matter until a later date.
SO VOTED UNANIMOUSLY.
7:05 P.M. Administrative Review, Heather Sugrue, 20 Cranberry Road, Map 21, Parcel 034A.
Deputy Usowski explained this request to remove a dead tree that is about to fall into the driveway at the above address. She said it is right on the edge of a freshwater wetland which she thinks was a cranberry bog years ago. She said the tree is entangled in Bittersweet and all the invasives will need to be removed to get to the tree.
After brief discussion, Ms. Giovinazzo MOVED to ratify this Administrative Review and Mr. Collins SECONDED the Motion.
SO VOTED UNANIMOUSLY.
Deputy Usowski told the Commissioners that the Board of Selectmen would be addressing the matter of dogs at Dyer Prince Road beach at their meeting on
February 3rd, and that the annual MACC conference would be coming up in February.
The Commission reviewed the beach nourishment annual reminder letter that gets mailed to those people who have nourishment conditions in their Orders. The Commissioners had no changes or additions.
7:15 P.M. Notice of Intent filed by Devette Russo & Robert Pfeifer, 295 Corliss Way, Map 21, Parcels 043A and 043B.
Vice-Chairman Hoerle announced this hearing for a proposal to remove an existing dwelling and construct a single family dwelling, to replace the existing decking and handrails on an existing pier, to remove and maintain invasive plant species; and, mitigation planting at the above property.
Stephanie Sequin of Ryder & Wilcox, Inc. was present for the Applicants. Ms. Russo and Mr. Pfeifer were also present. The current owners of the property were also present along with the architect and the representative for the planting mitigation plan.
The Applicants are in the process of purchasing this property.;
Ms. Sequin explained the plan, identifying the 100-year Flood Zone the Coastal Bank and the resource areas. She said the property is two separate lots created by a subdivision that was signed by the Planning Board in 1987 and is currently used as one lot. She said there is a single-story cottage and a Title V septic system on one lot, lot 4C; however, the existing well is on the other lot, lot 4D. She said she knows this will need to be heard by the Planning Board and she realizes that one of their requirements will be that the two lots be formally combined by deed.
She said the proposal is to remove the existing three-bedroom cottage completely and build a new three-bedroom house in a different location. She said they will connect to the existing Title V septic system and they will use the existing well. She said the driveway will be re-configured. She said it will be very close to, but outside of the 50' Buffer so they are looking at that as a small improvement. Ms. Sequin said the new house will be entirely outside of the 100' Buffer to the drainage ditch but will be within the 100' Buffer to the Coastal Bank and at its closest will be 70' back from the Top of the Coastal Bank. She said the patios will be 55-56' from the Top of the Coastal Bank and the deck is about 70' from the Top of the Coastal Bank, so everything is outside the 50' Buffer. She said they are
showing a proposed shed that is within the 50' Buffer Zone but it is within an existing Cape Cod lawn area that has been maintained the same way for a long time. She said that as mitigation they are showing a pretty extensive Planting Mitigation and Land Management Plan. She said a large portion of the Cape Cod lawn will be converted to a planted meadow-type area. She said that approximately 7,500 sf. Will be restored to a more beneficial area.
Ms. Sequin continued with a review of the Construction Notes on the plan relative to the driveway, the limit of work, how excess excavated material will be handled, roof runoff, and re-vegetation according to the Planting Mitigation Plan. She said the only other item is that the Applicants would like to replace the decking and handrails on the existing pier at this property.
Theresa Sprague of Wilkinson Ecological Design reviewed the Land Management Plan for this property. She said the goal of the plan is to restore the native plant community within the Buffer Zone and the Coastal Bank by selectively removing invasive plant species over time and planting additional native vegetation in order to improve wildlife habitat and restore biodiversity. This Land Management Plan had just been distributed to the Commissioners prior to this hearing and the representative proceeded with the presentation with the understanding that it would not be acted on at this meeting.
Commissioner Collins commented that the Commission needs to be very careful to insure that what is presented by Wilkinson Ecological Design is exactly what is done at the property.
There was brief discussion about what herbicides would be used and for what invasives.
It was determined that building coverage within the 100' Buffer Zone would be approximately 3,000 sf. Including the patios, deck, and shed.
Deputy Usowski said she agreed with the wetland delineations on the plan. She said she thought that after the two lots are combined there would be room to move the house totally out of the area of Conservation Commission jurisdiction and wondered if that had been considered. Ms. Sequin said that the location of the existing septic system and the driveway is to some extent the reasoning for the positioning of the new house and one of the other considerations was that the existing cottage is perched at the very top of the hill and the new building will be lower on the hill so it’s not as imposing.
Discussion followed about the proposed house location and the possibility of moving it so that it is entirely out of the 100' Buffer.
Deputy Usowski expressed her concern about the size of the Limit of Work on the southern side. She said the area is heavily vegetated and would be disturbed. She said it is within the 100' Buffer Zone to the drainage ditch (intermittent stream) and does have merit.
Ms. Sequin stated that she didn’t think there was any way they could keep the house entirely out of the 100' Buffer Zone. John Dvorsack, the architect , said that one of the reasons for the position of the proposed house is that there are a lot of trees and vegetation that they wanted to keep and that they are trying to respect the requirements of the Planning Board the neighbors and to keep the height of the building to a minimum and that was factored into the proposed positioning of the house. He said they were trying their best to disturb as little as possible and keep as many trees as they possibly could.
Mr. Collins said it looks like the house could be moved back up the hill another 10, 15, or 20' and a little more habitat could be gained on the side toward the Cove. He said the driveway is substantial and maybe it could be made a little smaller and the house could slide up the hill a little bit toward the Northwest and they could still keep all the Cedar trees to the East. Ms. Sequin said that there is not really any habitat in the 50' Buffer there now, but Mr. Collins said that any time they can move it farther away from the resource it makes sense.
Some discussion followed about removal of fill and how much the topography of the area would be changed. Ms. Sequin said that when they excavate for the foundation, some of that fill will go into the cellar hole of the cottage being removed. She said they are proposing some fill to the West of the proposed house. She said about 2' of fill is being proposed so that there will probably be a wash as to how much fill is taken out and how much is replaced.
Ms. Larsen said that she, personally, would like to see an alternative assessment on some of the points that have been discussed so that the Commission can understand the reasoning.
Mr. Smith said that he feels this is a huge project and before he could make any decision on the patios he would need to see a construction diagram. He said this is a moderately sensitive lot that slopes down to th Cove and that they are proposing to rearrange 85% of the property. He said that at some point, 85% of the property will be having work done on it, and he doesn’t feel it can be proven that no silt will make its way to the Cove. He said that in order for him to make an informed decision he will need to see construction drawings of the patios and he will need proof that no silt will get to he Cove. He said he would also like to see some alternative that the house can be moved back and/or shrunk. He said he feels the driveway is too large for a
three-bedroom house and that gas cannot be stored in the shed according to the Bylaw. He said he also feels that the shed can be moved back.
Ms. Larsen said she would like to see a construction protocol. Discussion followed about the amount of fill proposed between the house and the shed and the possibility of moving the shed out of the 50' Buffer.
Ms. Sequin requested a continuance until the next hearing and Deputy Usowski said she would tentatively schedule the continuance for the meeting of February 9th, but she would need to check the regulations about legal advertisement.
Mr. Collins MOVED and Mr. LaBranche SECONDED the Motion to continue this hearing until 9 February 2010.
SO VOTED UNANIMOUSLY.
8:10 P.M. Continuation of Hearing on Request for an Amended Order of Conditions filed by A. Richard Carlson, DEP SE 19-1347.
Vice-Chairman Hoerle announced this hearing. Tim Brady of East Cape Engineering, Inc. was once again present for the Applicant. The Commissioners all had a copy of a letter from Wilkinson Ecological Design outlining a two-pronged approach of first slowing down the velocity of the storm water runoff and then treating it on the site through the use of a naturally-vegetated herbaceous buffer strip between the lawn and the salt marsh. Mr. Wilkinson said he feels the first goal of reducing the velocity of the storm water could be achieved by constructing a berm just north of the southern property boundary for the purposes of directing the storm water into a small retention area. He recommends that a native seed mixture for retention basins be sown under a 100% biodegradable erosion control blanket to hold the berm in place
while the seeds germinate and take root. He also suggests that if the property owner were to reduce his mowing schedule to only one mowing per year within the boundaries of his costal bank, then a warm season grassland community would likely develop on the coastal bank which is currently comprised of a “Cape Cod Lawn”. He said that it is his opinion that this strategy is consistent with the best management practices for residential storm water as set forth by the MA DEP policy on wetland buffers and storm water management.
Mr. Brady said that they would not need a large amount of fill to create the berm and all the work could be done by hand.
Deputy Usowski said that there should be no mowing of the Coastal Bank without permission and it has been going on for years. She said it will definitely be a benefit for Mr. Carlson to stop doing this but is not so sure if this can be seen as mitigation. She said she thinks the berm will do some good but she doesn’t think it will catch all the storm water and some of it will run off toward the Cove.
Discussion followed about the paving of the driveway and the plan that was approved with the original Order of Conditions for the septic which had a note on it that the pavement was to be cut and “re-paved as required”.
Mr. Smith said that if new conditions can be put on the Amended Order the Commission could place conditions calling for no more mowing and that the driveway can never be dressed. The driveway issue would be difficult, but so state that upon 50% failure of the driveway, the driveway would be removed and replaced with a pervious surface, that way the next owner knows that he cannot have it.
Mr. Brady said that an Order of Conditions only runs for three years and a new owner might not even see the Order of Conditions ; but, he said it is possible to go a bit further than that and, if the Applicant agrees, they can do a Deed Restriction which would be recorded in the chain of title for the property.
There was some discussion about whether or not some type of drainage catch basin would work better than what the method being proposed. Mr. Brady said that he knows of no type of catch basin which would treat runoff before it enters the ground. Mr. Brady said he feels that in this situation the only assurance that the Commission is going to get is that it will be better than it has been in terms of slowing the water down and having denser vegetation on the bank. He said this is probably not what would be done today if this was new construction but in terms of what has been there for the last thirty years or so this will be a big improvement.
The Commissioners agreed that they like the idea of a Deed Restriction and Mr. Collins said he feels the Commission needs to move forward on this proposal and in the future be very careful that this type of situation does not happen again. There was some discussion about how the Deed Restriction might be worded.
There was discussion about making the “No Mow” zone larger and the effects of invasives on the desirable vegetation.
There was no further discussion and Vice-Chairman Hoerle closed this hearing. Mr. Collins MOVED and Mr. LaBranche SECONDED the Motion to issue an Amended Order of Conditions for DEP SE 19-1347 with additional Conditions. Existing Condition #26 shall have added language to include the letter from Wilkinson Ecological Design, Inc. dated 19 January 2010 stamped and signed by David Hoerle and Tim Brady, Condition #27 No Mow Zone is changed to be Ten feet (10') landward of the Top of the Coastal Bank, that it be mowed only once yearly and that the Natural Resource Officer shall be notified in writing when the mowing is to take place, #38 a loam berm is to be added to the Southeast corner of the property as outlined in Mr. Wilkinson’s letter referenced above, #39 there shall be no paving, “dressing”, or
re-sealing of the driveway, #40 a Deed Restriction shall be drawn, signed & notarized, and recorded in the chain of title for this property which states that upon a Fifty Percent (50%) failure of the existing driveway pavement, the remaining pavement shall be removed and replaced with a pervious material, #41 the Coastal Bank shall be over seeded with a native Cape Cod mix.
SO VOTED UNANIMOUSLY.
8:50 P.M. Continuation of Hearing on Notice of Intent filed by Donald Cook, 165 Shurtleff Road, Map 10, Parcel 240; and, 195 and 205 Shurtleff Road, Map 07, Parcels 197 and 195.
Vice-Chairman Hoerle announced this hearing. Don Munroe of Coastal Engineering Company was present for the Applicant. He said he submitted the Alternatives Analysis as was requested. He said he went to the site just recently because of a severe storm event and showed the Commissioners photos of the site and the abutting properties. He said there are now three properties which are looking at having a dire situation because the erosion is now happening behind the sandbags, causing the banking and the vegetation to slump above the sandbags where it has been growing for the past several years. He said that because of the last two storms, the angle of this particular shoreline and another area in Truro got attacked very badly. He said that the sediment has all sloped to the base and is not on the beach yet.
Mr. Munroe pointed out that the vegetation above the revetments at the Sable, VanderKloot and DeRemer properties is still stable and these properties nourish the beach in front of their properties according to the Commission’s nourishment program. He said he knows the Commission has been wrestling with whether or not this is a pre-1978 structure. He said he wanted to make a couple of points:
That at the hearing for the relocation of the house, Mr. Brady said that a portion of the existing foundation would be left as support for the deck.
Mr. Munroe said he believes that this was done because the owner intended to protect the property but couldn’t fund it so he moved the house back. He said the Minutes of the first meeting, when the project was first proposed, Mr. Brady stated that the project was to take down the existing house and build a new house farther away from the bank.
On an alternative analysis basis, he exercised the first thing that the Commission would like to see which is moving the house back; and, should that, as a Commission, take away his right to protect that.
Mr. Munroe said that at the next meeting, then Commissioner Ryder commented that if a new house was built on the footprint of the existing house and the Applicant were to come back in 35 years, the net result would be the same meaning that they would still have to come back for a revetment because the erosion is not going to stop. Mr. Munroe said that he thinks Mr. Cook realized that he needed to leave paper work behind so that in the future he would be able to protect his property. He said he feels that is why the Commission left Conditions #31 out of the Order so that they did not take away his right to protect by making him do the movement of the house first.
Mr. Munroe continued that in the Minutes there was a a lot of discussion about whether this is pre-existing or not. He said that there was an opinion from an attorney that by a course of law, leaving a piece of the house behind is effect says that a pre-1978 house was there prior to this new construction. He said it’s not like a vacant lot and a new house. He said that there are three properties in jeopardy and two of these are pre-‘78, and this is the only way to protect those as well as his. He said he thinks that the Commission would not be putting themselves in harm’s way by treating this on a case by case basis, and if fact, with a sediment application to the wall they will take care of the fact that a wall starves the beach. He said there will be a Condition to replace the sediment on an
annual basis.
Deputy Usowski gave Mr. Munroe an email from Eastham’s Town Counsel detailing her professional opinion on whether or not this is a pre-‘78 structure. Deputy Usowski said that Town Counsel’s opinion is that this is not a pre-‘78 structure. She told the Commissioners that the only way they could act on this request and approve a revetment is if this is the only alternative and is a better alternative than what is there now, but pre-1978 is really the law. She said she wishes Town Counsel’s opinion was a bit more formal than an email, and she doesn’t think Counsel took into consideration all the discussion which took place years ago when the house was moved back. She said that Town Counsel doesn’t feel that leaving a piece of the wall, which is currently under the deck, qualifies
it as pre-‘78.
Mr. Munroe told the Commission that if it is denied, they will have to appeal it because the house is going to fall. He said he is not an attorney but feels that Town Counsel’s email takes away the applicant’s right. He said that because the person moved the house and built something new doesn’t preclude the fact that there was a pre-‘78 house there before. He said that he was told by DEP that there are similar cases where a property was being damaged because of revetments on either side and DEP has allowed the property to be revetted even though it was post-‘78; so, if it is denied, they will definitely appeal it, and if it were approved by DEP then it would be out of the hands of the Conservation Commission.
The Commissioners agreed that they would like to have a more formal/official opinion from Town Counsel, and Mr. Munroe said he feels that it is important that the Minutes be reviewed because the then Commission was focused on the least detrimental thing being done at the time. He said he would have to see this just go to an Appeal when the Commission has an interest in wanting to preserve their own beaches. He said that when the Commission approves a rock revetment with a nourishment requirement on it they are preserving two resources, the Coastal Bank and the Coastal Beach.
Deputy Usowski told Mr. Munroe and the Commissioners that as far as the abutter issues are concerned, the Commission has received a letter from Ms. Gumbel supporting Mr. Cook’s proposal, but the Brothers have not been cooperative and have not accepted their certified notice. Mr. Munroe said he has had conversation with the Brothers and Deputy Usowski said that she also has spoken with them, so they are definitely aware of the proposal.
Mr. Munroe said he wanted to reassure the Commission that when Mr. Cook appeared before the Commission to move the house he “wasn’t trying to get away with anything” and was trying to do the right thing and there were things done to try to address the alternative analysis.
There was some discussion as to whether Mr. Munroe should request a continuance until the next meeting and ultimately, Mr. Munroe requested a continuance until
09 February 2010.
Ms. Giovinazzo MOVED and Mr. LaBranche SECONDED the Motion to continue this hearing until 09 February 2010.
SO VOTED UNANIMOUSLY.
There was no further business. Mr. LaBranche MOVED to adjourn at approximately 9:35 P.M. Ms. Giovinazzo SECONDED the Motion.
SO VOTED UNANIMOUSLY.
Respectfully submitted.
Kay Stewart-Greeley, Clerk
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