MASHPEE CONSERVATION COMMISSION
Minutes of April 29, 2004
Public Hearing
Mashpee Town Hall Meeting Room 1
Commissioners present: Jack Fitzsimmons, Chairman, Michael Talbot, Vice Chairman, Leonard Pinaud, Clerk, Jeffrey Cross, Cass Costa, Stephanie Jones, John Miller, and Ralph Shaw.
Staff present: Robert Sherman, Agent, Lori Soucy, Assistant Conservation Agent, and Frances Wise, Board Secretary
Jack Fitzsimmons, Chairman, called the meeting to order at 6:55 p.m.
Public Hearing: None.
Non-Hearing Agenda
Old Business:
1. Little Neck Bay Association -- 77 Tide Run. Bob said we have a situation regarding an easement where they had done drain work without a filing. Don Liptack has been there to give them some suggestions, and they are going to follow them. They are not going to do a Notice of Intent – we are just going to agree to the Liptack plan as an enforcement.
At the same time we are addressing the small mortar situation with various feed drains along
Tide Run, fixing them one at a time. They have asked in a letter if they can separate out these two actions. Bob and Don Liptack don’t see any reason not to.
Motion made, seconded and unanimously carried to approve the Little Neck Bay Association’s request to separate these phases.
2. (RFAA – SE 43-2257) Discrepancy between BOA plans and ours for 429 Monomoscoy. Michael Grotzke represented the owner and described the alteration to the plan. He will send us a letter stating his request for approval of this administrative approval.
Motion made, seconded and unanimously carried to approve this administrative approval pending receipt of a letter requesting it.
3. RFAA-SE 43-2192. Bob said this is a request to change the metal ramp to a fiberglass ramp. He recommended approval.
Motion made, seconded and unanimously carried to approve this administrative approval.
4. Enforcement - Rogers mitigation plan. Michael will review it.
5. Approval of minutes for 3/4/04, 3/18/04 and 4/1/04.
Motion made, seconded and unanimously carried to approve the above minutes.
6. Regulations Subcommittee update. Bob and Mike met and agreed that the most urgent thing is to establish guidelines for revegetation for violations. Mike hopes to have this done in a month.
7. Procurement of filter fabric. Bob said that after clearing this with Jack, he ordered $350 of heavy-duty filter fabric because they Dom Crupi will do a patch job on the flume.
New Business:
1. Quinnaquisset sign to the Woodlands. Stephanie said this sign has been hit by a car. Also the second bench from the entrance has been torn apart. Bob will hire someone to repair these things.
Hearing Agenda
7:00 p.m., Alan Radio, 24 Waterline N. Drive (construction of 10A float, timber walkway and path). Cass reclused herself from this hearing. Michael Grotzke represented the applicant and described the plan. Bob said he has no problem approving the plan, pending verification of the 50 ft. setback from the wetlands and the resource delineations. Mr. Grotzke said he has separate revised plans and Bob said he has not had a chance to verify them.
Motion made, seconded and unanimously carried to approve the plan pending verification of the resource delineations and the 50 ft. buffer.
7:05 p.m., Nicholas Tagaris, 139 Tide Run (construction of 10A float, timber walkway and path). Cass reclused herself from this hearing. Michael Grotzke represented the applicant and described the plan. Bob recommended approval pending verification of the resource delineations and the 50 ft. buffer.
Motion made, seconded and unanimously carried to approve the plan pending verification of the resource delineations and the 50 ft. buffer.
7:10 p.m., Babette E. Liebman, 86 Summersea Road (continued from 4/1/04). Cass reclused herself from this hearing. Michael Grotzke and Sarah Turano-Flores represented the applicant. Robert Gray, who had been retained by the Commission to evaluate the wildlife habitation at this site, was also present. Michael Talbot said the concern is that the proposed project would be built exclusively on the coastal embankment which is identified as a resource area and therefore does not meet our by-law in terms of setbacks.
Mr. Gray pointed out the following from this letter of March 15th to the Commission: Since this is a small lot in a developed portion of New Seabury, he did not feel that the lot itself has a high or moderate wildlife value and that it would have only minimal wildlife habitat potential. However, he said that looking at the existing vegetated community, his opinion was that the most significant factor regarding our by-law would be existing trees, particularly those that have a diameter of 10” or more. The most significant tree on the entire lot, unfortunately, is in a position that makes what the applicant is trying to do quite difficult, and that is the 24” white pine tree. He would hope that there would be some way to maneuver around the pine tree, because in his opinion
it is providing the most potential for wildlife habitat of all the trees on the lot. If that tree must be sacrificed because of its position being very close to the proposed house and the septic system, every attempt should be made to maintain as many of the other trees, which would be easier to protect because most of them are along the sidelines of the property.
The shrub area on the lot is not very dense. He did not find any evidence of dens in the trees or the ground dense, but there is some evidence of past use. He said to keep in mind that March is not the time of year to make an assessment or bird life and nesting potential, so he could not make any representation that nesting is occurring or has occurred on this site. He did not see evidence of nesting at the time he made the survey.
Michael Talbot said he thinks we should know that Regulation 16 – Coastal Bank, Section A states: “Whenever any portion of a coastal bank is vegetated, such portion’s topography, plant community composition and structure, and soil characteristics provide important food, shelter, migratory and over-wintering areas and breeding, nesting and brood-rearing areas for wildlife, especially birds and mammals.“ Therefore, the question is, “Does this canopy of trees, particularly the large trees mentioned, provide such benefits for wildlife as cited above.” Mr. Gray said the potential is definitely there.
Michael Talbot distributed photos of the site to show that along Summersea Road, there is a continuous canopy of trees. His question was, “Does the existence of this corridor canopy of trees along this portion of Summersea adjacent to the marshes of Ockway Bay enhance the wildlife habitat value of the canopy trees in this particular parcel? Does it make it more valuable by the fact that there is a continuous quarter of canopy trees along that part of Summersea?”
Mr. Gray said, “Obviously, the more continuous canopy you have, the higher the use potential is likely. Again, I can’t say for sure that this particular set of trees on the lot nor the trees you reference across the street are presently being used in a manner you described in Regulation 16. It may be appropriate for some more study to be done as the season gets warmer and birds of particular interest here will be more active. Obviously, a small number of trees does not provide as much wildlife potential as a larger, more dense setting. So the fact that you do have some trees across the street which are part of an overall canopy continuing down the base of the coastal bank on the sides of the salt marsh provides more significant features than if you didn’t have the trees across the
street.”
Michael Talbot: “You said there is a continuous canopy of trees that goes down to the salt marshes, at least on this parcel?”
Mr. Gray: “Yes, you have some continuation along both property lines, the trees at the front along the base of the coastal bank, and the trees across the street, so there would be some continuum as a result of that.”
Michael Talbot: “You’re also suggesting that there would be a legitimate purpose in continuing this examination as we go into the nesting season to observe the value?”
Mr. Gray: “I wouldn’t want to suggest that the Commission unnecessarily delay the project, but obviously it’s easier to assess animal use at the proper time of year, and March is not a nesting period. So obviously if you don’t see nests from the previous year, you maybe are drawing the wrong conclusion to say there’s no nesting potential on the lot. Perhaps in May or June you would have some activity you could point to. You would want to be checking for small mammals as well.”
Michael Talbot: “Mashpee’s Regulation 29D incorporated a protocol called ‘Guidelines for Activities within Naturally Vegetated Buffer Strips’ to provide that wildlife habitation value was not a function of observing wildlife activities, but it was a function of 1) plant community structure and 2) plant species composition. The plant community structure I am quoting now was the various bird layers such as herbaceous, shrub, sapling and tree layers and the density of vegetation the area may have. Each of these types of plants represents a vertical layer and these layers differ from one another in temperature and amount of sunlight, species of insects and food sources. Each of these layers provide nesting, food and cover habitat for specific animals. For example,
Ruby-crowned kinglets, Blue-winged Warblers, Carolina Wrens, and Yellow Warblers are species that utilize the mid and lower limbs on trees for foraging purposes. The plant species composition is the amount of different kinds of plants that occupy an area. So in looking at this site and in comparison to other portions of typical Cape Cod upland forests, would you not say there is a reasonable degree of plant species diversity as well as vertical layering of the forests which would typically be found in any pine barrens or other Cape Cod forests.”
Mr. Gray: “The diversity of species is there. The vertical layer, however, is rather weak because the shrub area is rather sparse. The herbaceous layer was in senescence and dormancy during that period, so couldn’t be assessed. There is not a thick shrub area in any portion of the present site. In another month you will be able to make a full assessment of the herbaceous growth.”
Michael Talbot read: “Section 1 and 1A of Chapter 172 of the Mashpee code requires that the naturally vegetated buffered strip (which in this case is the salt marsh) would be a minimum of 50 ft. wide unless the applicant convinces the Commission as per the provision of Section 12 of this Chapter that a) the NVBS (or part of it) may be disturbed and/or diminished without harming the values protected by this Chapter.” His question was “Would the removal of this entire area of herbaceous, shrub, sapling and tree species represented in this application disturb or diminish the wetland value of the wildlife habitat so much as to cause harm to that wildlife value as noted in Chapter 172.”
Mr. Gray: “Is it the Chair’s statement that the proposal before the Commission is the total removal of that buffer?”
Michael Talbot: “I would say it’s the total removal of the vegetation of this portion of this buffer zone and salt marsh. The reference to the 50 ft. in the by-law is technically 50 ft. from the coastal bank and the salt marsh.
Mr. Gray: “I thought you had a 50 ft. setback and I taped the stakes at the closest point and it was only 35-36 ft., but later learned there was some wiggle room. Obviously the more existing vegetation you remove from this lot, the more you diminish what potential exists there now. It’s an existing lot starting out with a rather low wildlife value because of its size and density of development, so what’s there in terms of the vegetation is providing the bare minimum of cover and potential nesting area. In answer to your query will it cause a diminishment, I would have to say yes.”
Michael Talbot: “The Mashpee Chapter 172 Bylaw, Regulation 16, Part C (performance standards) states: Any proposed work permitted by the Commission on a coastal bank or within 100 feet of such bank, other than as permitted above, shall not destroy any portions of the existing bank, nor shall the work impair the bank’s ability to perform any of the functions expressed in the critical characteristics and presumptions of significance as expressed in the preceding for coastal banks. In your opinion, will removing these trees, including the large 2 ft. diameter white pine and the large oaks result in an impairment of the wildlife habitat functions of food, shelter, migratory and over-wintering areas for wildlife, including birds and mammals?”
Mr. Gray: “I would have to say there will be an impairment to the existing wildlife habitat functions.”
Michael Talbot: “Based on your professional experience, are the critical characteristics, presumptions of significance and performance standards for the above-cited sections of Chapter 162 and its regulations founded upon sound science and research regarding the wildlife habitat values of naturally vegetated buffer areas to salt marsh and naturally vegetated coastal banks?”
Mr. Gray: “I would have to agree that they are based on sound science and research. I know that in the past the Commission has labored long and hard before it went to the Regulation on it.
Ms. Turano-Flores said: “Obviously this is a very difficult site because the entire site is seaward of the top of the coastal bank, so the entire project would fall upon what is the face of the coastal bank. We have moved the house 35 ft. back from the edge of the salt marsh. If we go 50 ft. back we will not meet zoning for that. The issue is obviously the wetland values as outlined in the By-law. I understand the concern here is the tall trees that abut Summersea Road. In addition to that is the buffer to the salt marsh. Do you want to get as far back from the marsh as possible, or do you want to preserve as many trees as possible? In addition, the removal of the trees can be mitigated with the planting of a herbaceous layer, providing more than is
currently existing. Another issue is whether the value of the trees can be replaced with additional vegetation that could not only maintain but enhance the wildlife habitat value of this property.” She asked Mr. Gray for his thoughts on relocating some of the existing plants and whether it is more valuable to enhance the vegetation by the salt marsh and keep an uninterrupted habitat from the water back, or is it beneficial to keep these trees at the top of the lot.
Mr. Grotzke said there’s an area to the left of the subject lot which the applicant has rights to plant on to enhance wildlife habitat. Also, he has investigated the feasibility of moving the large pine tree and was told it could be done but there is a risk of the treeing dying later. An alternative would be to plant several trees 25-30 ft. tall, but there is no guarantee that they would survive.
Mr. Gray said it’s beyond his expertise whether or not a tree the size of the big pine can be moved. As to whether or not you can enhance the wildlife potential with plantings, maybe it’s worthwhile exploring. A lot would depend on what is proposed, i.e., the size of the trees and whether or not it would provide the vertical layering. The property is void of any vegetation other than lawn grass, so an enhancement in that area would be a plus. As to whether it would replace the value of the trees in total, he’s not now ready to accept that it does, not knowing what is proposed. He urged the Commission to explore the alternatives rather than having the situation drag out to a court challenge. He’d be willing to work further with the applicant’s representatives to see what can be done.
Michael Talbot said in the past we have permitted projects within 35 ft. of the buffer zone if we felt that it didn’t diminish the significant values. However, he was surprised to find that at the 35 ft. line there was a stake and right next to it was a stake for the house itself. The footprint of the house is actually pressed right up against the 35 ft. buffer line. Generally we require that we have a hay bale line, a silt fence, and then some space there in which to work. When he checked the filing, there was a note saying the applicant would revegetate any disturbed areas within that 35 ft. buffer. First, there isn’t even room for a hay bale line. He would need to see a very clear methodology in writing that would explain how that house can be built
without disturbing the area. His understanding of the by-law is that the 35 ft. buffer zone is inviolate, and we aren’t allowed to permit any disturbance in that area. We can give the 15 ft. from the 50 to 35 ft., but we can’t give even one foot beyond that. Our precedent has never allowed that. The hay bale line goes on the upland side of the 35 ft. line. Mr. Grotzke said they could have a chain link fence and the silt fence attached to it.
Ms. Turano-Flores said she would like to hire an experienced landscaper like Don Schall to come up with a plan for the herbaceous area and have it reviewed by Mr. Gray prior to the next hearing. The applicant will pay Mr. Gray’s retainer for this.
Motion made, seconded and unanimously carried to grant a continuance to June 10 at 7 p.m., at the request of the applicant.
7:15 p.m., Marietta Gardula, 18 Sextant Circle (landscape, plantings, after-the-fact deck). Bob said the applicant has agreed to do plantings to enhance the area, and he recommended approval.
Motion made, seconded and unanimously carried to approve the plan.
7:20 p.m., Willowbend Development Corporation - Conservation Restrictions. Pat Butler and Bruce Bessie represented the applicant and gave a preliminary presentation on two conservation restrictions for which they will request our and the Board of Selectmen’s approval.
They will make another presentation on May 13th at the Public Comment at 6:55 p.m.
7:40 p.m., Peter Maglione, 30 Ockway Bay Road (fence installed around pool, after the fact).
Bob recommended we grant a continuance and advise that this is the first and only continuance we will grant because it is an enforcement situation.
Motion made, seconded and unanimously carried to grant a continuance to May 13 at 7:50 p.m., at the request of the applicant, with the clear understanding that this is the one and only continuance that will be permitted.
7:45 p.m., Armando Vicente, 60 Cove Road (continued from 4/15/04). Bob recommended a continuance.
Motion made, seconded and unanimously carried to grant a continuance to May 13 at 7:55 p.m., at the request of the applicant.
7:50 p.m., Robert Najarian, 8 Bowsprit Point (continued from 4/15/04). Robert Gray and Roger Michniewicz represented the applicant. Mr. Gray described the project. Since they are not pursuing any vista pruning other than the phragmites, Bob recommended leaving that issue to an amended order. We could approve the plan with the condition that no phragmites control shall proceed until we have an amended order for a plan which is approvable.
Mr. Michniewicz then presented his research regarding the lawn and nitrate loading. The applicant agreed to plant a grass recommended by Bob which would result in less fertilizing and nitrate loading. The applicant would limit the lawn area no larger than 7,000 sq. ft. and afterwards do an “as built” to prove that that’s all they have.
Motion made, seconded and unanimously carried to approve the plan with an Order of Conditions that the phragmites plan will be handled by an amended order and the lawn will be limited to 7,000 sq. ft. in accord with the boilerplate nitrogen clause.
7:55 p.m., Peter Hinden, 127 Shore Drive (install sod and replace previous sod lawn). Mr. Hinden was present. Bob asked Mr. Hinden if he would be willing to subsitute sod with a grass mix of his (Bob’s) recommendation. An alternative would be proof that the ground water flows in the direction of the sound and not in the direction of other lawns, in which case the sod would not be an issue. The applicant chose the latter.
Motion made, seconded and unanimously carried to grant a continuance to May 13 at 8:00 p.m., at the request of the applicant.
8:00 p.m., Dream Developers, 31 James Circle (add deck stairs, proposed stairway, landscaping, and vista pruning). No one was present to represent the applicant. It was agreed that the applicant must present everything on one plan.
Motion made, seconded and unanimously carried to grant a continuance to May 13 at 8:05 p.m. If the applicant does not wish to accept this continuance, the application will be denied.
8:05 p.m., Little Neck Bay Association, 102 Tide Run (install 1,000 gallon leaching pit).
Bob recommended approval.
Motion made, seconded and unanimously carried to approve the plan.
8:10 p.m., Little Neck Bay Association, 63 Waterline Drive South (cut and remove pavement, replace with crushed stone). Bob recommended approval.
Motion made, seconded and unanimously carried to approve the plan.
8:15 p.m., John Hutchins, 30 Baker’s Road (deck renovation, stone wall, mitigation plantings). Peter Dobyns represented the applicant and described the plan. Bob recommended approval.
Motion made, seconded and unanimously carried to approve the plan.
Meeting adjourned at 8:50 p.m.
Respectfully submitted,
Frances Wise, Board Secretary
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