MASHPEE CONSERVATION COMMISSION
Minutes of October 21, 2004
Public Hearing
Mashpee Town Hall Meeting Room 1
Commissioners present: Jack Fitzsimmons, Chairman, Michael Talbot, Vice Chairman, Len Pinaud, Clerk, Cass Costa, Jeffrey Cross, and Stephanie Jones.
Staff present: Bob Sherman, Agent, and Frances Wise, Board Secretary.
Jack Fitzsimmons, Chairman, called the meeting to order at 6:55 p.m. He reviewed how the meeting should be conducted. After an applicant has made a presentation describing the application, the Conservation Agent and his Assistant give their comments and recommendation, then the Commissioners ask questions of the applicant, and then the applicant makes further comments.
Public Comment: None.
Non-Hearing Agenda
Old Business:
1. Approval of Minutes for 9/2/04 and 9/16/04.
Motion made, seconded and unanimously carried to approve the above minutes.
New Business:
1. Lightship Engineering. Bob said we have a request from Lightship Engineering regarding a 75-gallon oil spill at the intersection of Route 28 and Quinaquisset Avenue in summer ’04. There’s indication that they didn’t get it all, and they want to do some sampling. The site is not in a wetland and is not on a slope, but it may be within 200 ft. of the riverfront area.
Motion made, seconded and unanimously carried to accept this request for soil testing on Route 28.
2. RFAA-SE 43-2263, Monomoscoy Road. Bob said the original plan requested a screened porch and a deck, and this new plan is requesting a deck and a gazebo instead. He recommended approval.
Motion made, seconded and unanimously carried to accept this request for an administrative approval for SE 43-2263.
Hearing Agenda
7:00 p.m., Arthur Pagani (Sarakumitt Corp), 217 and 221 Noisy Hole Road (continued from 9/16/04). Bob Gray represented the applicant and described a survey they did regarding a ditch, resulting in their revising the terminology from a ditch to an intermittent stream and making appropriate provisions.
Motion made, seconded and unanimously carried to approve this ANRAD.
7:05 p.m., Mark and Patricia Anderson, 29 Hamblin Road (construct and license dock, ramp, float, water, electricity, with maintenance in perpetuity). Dave Sanicki represented the applicant and presented the plan. Bob said someone asked why the project wasn’t moved further south where the water is deeper. Dave said the access made that impossible. Cass pointed out an outdoor shower, and Bob said we would approve the plan with the condition that they contact the Board of Health on that issue.
Deb Moore Williams and Richard Moore, 22 Hamblin Road, asked about outdoor lighting on the water. Bob said we consistently disallow all-night lighting.
Motion made, seconded and unanimously carried to approve the plan with the above conditions.
7:10 p.m., Blaise Scioli, 5 Clamshell Lane (continued from 10/7/04). Bob said this is continued because the DMF wants to look at it.
Motion made, seconded and unanimously carried to grant a continuance to November 4th at 7:30 p.m., at the request of the applicant.
7:15 p.m., Chilton Development Co. Inc., 123 Tide Run (renovate single family home including elevating structure, footprint expansion, septic system upgrade, landscape, and grade adjustments). Cass stepped down for this hearing. Michael Grotzke represented the applicant and presented the plan. Bob recommended approval.
Motion made, seconded and unanimously carried to approve the plan.
7:20 p.m., James and Amy Newman, 34 Oneida Avenue (addition on house with attached deck). Carman Shay represented the applicant and described the plan. Bob recommended approval with the condition that the applicant remove the debris on the land.
Motion made, seconded and unanimously carried to approve the plan, with the condition that the debris on the land be removed.
7:25 p.m., Joseph and Maureen Driscoll, 41 Elizabeth Island Road (demolish and reconstruct home with appurtenances, septic).
Motion made, seconded and unanimously carried to grant a continuance to November 18 at 7:00 p.m., at the request of the applicant.
7:30 p.m., Fred Blythe, 228 Wading Place (remove vegetation/revegetate and repair lawn and install gate at end of driveway). Mr. Blythe described the plan.
Motion made, seconded and unanimously carried to approve the plan.
7:35 p.m., Babette E. Liebman, 86 Summersea Road (continued from 10/7/04). Cass stepped down on this hearing. Michael Grotzke and Sara Turano-Flores represented the applicant. Jack said because there have been so many hearings on this application he will poll the members individually after the presentation. Mr. Grotzke described the plan. Bob said the hay bales must be within the 35 ft. setback. Mr. Grotzke said the hay bales will be on the upgrade side of the silt fence. Bob said that’s not the best way to do hay bales – on a slope like this the best way to do hay bales is on the downgrade side of the silt fence. Mike said we usually don’t allow construction right up against the work limit.
Ms. Turano-Flores wanted to make sure that the Sabacia report and the ENSR report describing the mitigation plan are part of this record, including Don Schall’s recommendation for tupelos, and she reserved comment after the Commissioners have made their recommendations.
Bob said with the defined mitigation plan, it’s his conclusion that the project meets the performance standards.
Mike said he’s still very concerned that the preponderance of this project is actually on the coastal bank.
Mr. Grotzke said that the slope doesn’t have coastal bank functions. Bob said he couldn’t disagree with that more. Even though he still recommends the project, it does function with its retention characteristics, it holds back floodwaters. Mr. Grotzke said the alteration of it would function that way as well. Mike said it also has a very impressive list of trees, including a white pine, and the vegetation of coastal banks is well known to provide important food source for migrating birds. Mr. Grotzke said the consultant the Commission hired Sabatia. Mike said we don’t always agree with our consultants.
Jack then polled the commissioners. Stephanie said she thinks we should close the gap in our law to make sure this never happens again. Mike said he’s still not sure there is a gap that actually allows us to permit a path on a coastal bank. Len said he is also concerned about the actual construction on the coastal bank in terms of wildlife habitat. Jack said he agrees. He’s been on the Commission for 12 years and we have frequently defended the coastal bank for many years, and he voted to deny the project. He said we need guidance on voting to deny under the Act and By-law. Mike said he thinks the DEP is a lot more lenient and provides less protection.
Ms. Turano-Flores asked for the record why Cass reclused herself. Cass said she works for Seaview Real Estate which has been involved with the property. Ms. Turano-Flores said regarding setting a precedent, the biggest concern she hears is that it’s true the regulations must be complied with, but there are many other variables to be considered before making our decision. She said she asked Mr. Grotzke to pull some decisions regarding a similar situation, and she presented a 1999 plan with an Order of Conditions at 119 Waterway showing a flood zone and coastal bank going right through the house. Therefore, she doesn’t feel our approving their plan would be setting a precedent. She noted that the unusual circumstances in this case and thinks that there are not a lot of lots out there to develop. There
are houses up and down the road and all the experts (except for Mr. Talbot) say the existing habitat values here are minimal. She said the Town’s expert used the words “bare minimum” for cover habitat and because it’s developed on both sides and is such a small lot, it’s a rare and unusual circumstance for which they can meet the performance standards. She said if they could pull this house off the coastal bank, they would have done it six months ago.
Jack said many of the houses in New Seabury were built back in the 60’s. History has overtaken that with the Wetlands Protection Act and the Mashpee By-law, and many of those houses would not be buildable today. That’s unfortunate, but that’s the way it is.
Ms. Turano-Flores said she was trying to say that the property is undeveloped and the significant wildlife habitat is small, so she doesn’t think they would be setting a precedent.
Mike said he looks at how the flood control interests of the bank were quickly dismissed, they were insignificant. Others could get a couple of experts in to say there aren’t many trees here and therefore there’s not much wildlife habitat. He actually thinks most of the buildable lots in Mashpee would fall exactly into these circumstances, so it would be a death by 1,000 cuts. People could find these, isolate them, treat them as little entities, rather than talk about the interests of the coastal bank as a resource area that actually provides protection and wildlife habitat value. He thinks it would set a precedent because it would be very easy to create the same set of circumstances if you had enough experts and attorneys, etc. to make that case. He’s still concerned about the precedent, not so much
because of the actual case here, but because how easily the interests have been dismissed. In essence, we would no longer have what appears to be any defense for protecting coastal banks from development. And if coastal banks aren’t significant, then the buffer zones to the coastal banks have no significance either. It’s not as though we have a lot of areas left to defend -- it would be little lots like this over and over again.
Ms. Turano-Flores said no one is dismissing the significance, but they don’t have a choice on this lot.
Mike said recently we had a proposal for building a house and determined that since we have a 50 ft. buffer zone that is pretty inviolate, in essence the lot wasn’t buildable. It wasn’t that we declared that it was unbuildable; we just specified where they had to build. Then the Board of Health takes over to determine whether there’s adequate space to put in a house. So it wouldn’t be the first time we’ve been in this position.
Motion made to close and issue an Order of Condition under the Wetlands Protection Act.
Ms. Turano-Flores asked if there is anything they could do to address flood control.
Mike said the issue is the location of the house – it’s almost entirely on the coastal bank.
Bob said if they want to come back with an alternative design, he thinks they could have a continuance. Mike said if they made some changes in the plan like pulling it back off the bank and making it smaller, he’d be open looking at it.
Motion made, seconded and unanimously carried to grant a continuance to November 18th at 7:05 p.m., at the request of the applicant.
7:40 p.m., Chilton Development Co., Inc., 166 Waterway (continued from 10/7/04). Cass stepped down for this hearing. Michael Grotzke represented the applicant and presented the plan. Bob summarized that 1) he did a mitigation calculation which showed that the current mitigation plan would not meet our standards, 2) he based that mitigation standard from the edge of the salt marsh line, 3) above the salt marsh is an area of phragmites, which is a problematical species but still may qualify as a wetland, and thus he feels we should have some more investigation on the status of the phragmites as to whether or not it constitutes a wetland at which time we would begin our wetland calculations.
Motion made, seconded and unanimously carried to grant a continuance under the By-law to November 18 at 7:10 p.m., at the request of the applicant.
7:45 p.m., Donald Turlick, 17 DeGrass Road (continued from 10/07/04). Bob recommended approval.
Motion made, seconded and unanimously carried to approve the plan.
7:50 p.m., Paul Kruzel, 85 Popponesset Island Road (continued from 10/7/04). Tom Jalowy represented the applicant and presented the plan.
Motion made, seconded and unanimously carried to approve the plan.
7:55 p.m., Edward Kodinsky, 85 Timberlane Drive (continued from 10/07/04). No one was present to represent the applicant.
Motion made, seconded and unanimously carried to grant a continuance to November 4 at 7:40 p.m. Bob will confirm this with the applicant.
8:00 p.m., Per A Eldh and Daniel’s Island Realty Trust, 172 Daniel’s Island Road (continued from 10/07/04). Dave Sanicki represented the applicant and described the plan. Bob expressed concern about the size of the existing boat and engine.
Motion made, seconded and unanimously carried to approve the plan with the condition that before the dock can be constructed, we will be provided with the required information on the existing boat and engine, and on an auxiliary smaller engine.
8:05 p.m., James and Anne LaGrippe, 15 Ocean Bluff Drive (vista pruning with maintenance in perpetuity). Michael Grotzke represented the applicant and confirmed that Mary LaBlanc has completed the revegetation. Bob recommended approval.
Motion made, seconded and unanimously carried to approve the plan.
8:10 p.m., Victor Corda, 184 Waterway (demolish and rebuild single family house, Title V septic, utilities and driveway). Dave Sanicki represented the applicant and described the plan.
Motion made, seconded and unanimously carried to approve the plan with the exception of the landscaping, for which the applicant will file an amended order.
8:15 p.m., Charice DiPlacido Tr, DMC Realty Trust, 98 Summersea Road (remove and construct pier, ramp and float on Ockway Bay with maintenance in perpetuity). Dave Sanicki represented the applicant and described the plan. Bob recommended approval.
Motion made, seconded and unanimously carried to approve the plan.
Meeting adjourned at 8:45 p.m.
Respectfully submitted,
Frances Wise, Board Secretary
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