MASHPEE CONSERVATION COMMISSION
Minutes of August 5, 2004
Public Hearing
Mashpee Town Hall Meeting Room 1
Commissioners present: Jack Fitzsimmons, Chairman, Michael Talbot, Vice Chairman, Lloyd Allen, Cass Costa, Jeffrey Cross, Stephanie Jones, and Ralph Shaw.
Staff present: Frances Wise, Board Secretary.
Jack Fitzsimmons, Chairman, called the meeting to order at 6:55 p.m.
Public Comment: None
Non-Hearing Agenda
Old Business:
1. Update of Regulations. Regarding mitigations plantings, Michael recommended that we a) change the spacing requirement of plantings (shrubs in particular) from 5 ft. to 3-4 ft. This would provide more rapid revegetation of these sites and prevent invasives from coming in.
b) Encourage the use of native plants, and c) If an 8” diameter tree is removed, it must be replaced with an 8” diameter tree or 2” diameter trees.
New Business: None.
Hearing Agenda
7:00 p.m., Bayswater Development, LLC, 73 Seanest Drive (continued from 5/27/04). Michael said that Bob’s notes state that we are still waiting for confirmation from the Cape Cod Commission that the litigation has been settled.
Motion made, seconded and unanimously carried to grant a continuance to September 2nd at
7 p.m., at the request of the applicant.
7:05 p.m., Steven Belkin, 50 Triton Way and Coastal Beach seaward (continued from 7/8/04).
Motion made, seconded and unanimously carried to grant a continuance to August 19th at
8 p.m., at the request of the applicant.
7:10 p.m., Bayview Townhouse Condominium, 381 Great Oak Road (trim branches over bog). Michael said that Bob has recommended approval.
Motion made, seconded and unanimously carried to approve the application.
7:15 p.m., James Crocker Jr., Trustee, 14 Sampson’s Mill Road (continued from 7/22/04).
Scott Horsley represented the applicant and presented the plan. Michael reported Bob’s comments as follows: 1) The work limit has not been stationed, 2) we should have a larger scale drawing to provide more detail, 3) we should have the new plan as an overlay to show the changes from the original plan, and 4) the project, including storm-water analysis, is sufficiently complex for the Commission to need an independent analysis pursuant to MGL 44-53G. Michael said we generally don’t permit an encroachment of the 50 ft. buffer, and we would consider storm water management something that needs to be within the work limit. We would need some justification why it is necessary to encroach on the buffer zone.
Motion made, seconded and unanimously carried to grant a continuance to August 19th at
8:05 p.m., at the request of the applicant.
7:20 p.m., Willowbend Development Corp., LLC, 37 Shoestring Bay Road (continued from 7/22/04). Michael gave Bob’s comment that we are still awaiting a revegetation plan and there is also the issue of reconciling comments of the Division of Marine Fisheries and our Shellfish Warden.
Motion made, seconded and unanimously carried to grant a continuance to August 19th at 7:50 p.m., at the request of the applicant.
7:25 p.m., Charles Viglas, 10 Spoondrift Circle (continued from 7/22/04). Dave Sanicki represented the applicant and presented the project. All the requirements have been met.
Motion made, seconded and unanimously carried to approve the plan.
7:30 p.m., William Levine, 37 Fiddler Crab Lane (continued from 7/22/04). Dave Sanicki represented the applicant and presented the project.
Motion made, seconded and unanimously carried to approve the plan.
7:35 p.m., Fred Blythe, 228 Wading Place Road (continued from 7/22/04). Mr. Blythe said he would like to erect a 5 ft. high gate. Michael Talbot reclused himself from this hearing because he has too many friends in this community.
Jack said a number of the Commissioners have expressed their personal feelings about blocking this access to the beach, but we attempt to follow the Wetlands Protection Act. We requested a written judgment from Town Counsel, who responded as follows: “In my opinion, the Conservation Commission would not have jurisdiction or authority to render any kind of determination on public access rights and other issues relevant to the nature of proprietary interests on the subject filed. So long as the Conservation Commission is satisfied that the information provided in the request in determination of applicability found relative to the owner of the properties is true and accurate, the scope of the hearing and the evidence introduced at the hearing should
be limited to determination as to the applicability of G.L. c. 131, §40 and the Mashpee wetlands Protection Bylaw to the specific area and/or work described in the Request for Determination of Applicability. Upon rendering either a positive or negative determination in the manner prescribed on the Department of environmental Protection approved WPA Form 2, the Conservation Commission will have fulfilled its statutory duty in this regard.” Jack said we gave a copy of this letter to the Cape Cod Times at the last meeting. He requested comments from the audience.
Paul Revere, attorney representing Nancy Caffyn, said he had a discussion with Patrick Costello this afternoon. At about 4:45 p.m., Mr. Costello called Bob Sherman and left a message in his voicemail. He requested that someone from the Commission go into Bob’s voicemail and listen to this message. Jack said he didn’t think we could do that. Mr. Revere said that Bob left a message saying it’s up to the Commission to make its decision, but given that the application to be able to build this fence was covered by a request for relief of a contempt hearing which is on-going in the Barnstable Superior Court, he would suggest that either 1) the Commission table the matter or 2) if they decide to move forward with the matter to consult with legal counsel as to the terminology of it to make sure it
adequately took into account the existence of a contempt order in that proceeding. Mr. Revere said he also talked to Bob about whether it would be appropriate for the Commission to issue a determination to say that performing the work would be subject to Chapter 91.
Jack asked if it’s a contempt order currently being deliberated by the court, wouldn’t that be the proper avenue to pursue, and not come before us since it is not under our jurisdiction?
Mr. Revere thought that was incorrect. He stated in his letter to Mr. Costello that the applicant literally carries the burden of proof that he has a colorable claim to do the work. He said the DEP said they could not issue a Chapter 91 license for someone to construct a dock in the private way. He said in ownership issues one has to have a colorable right to do the work. He had a letter written by a consultant hired by Save Popponesset Bay regarding Project Blythe saying this captain has the right to use the way through there. He thought it appropriate for the Commission to listen to Mr. Costello’s response to his letter before rendering a decision.
Jack said he regretted that Mr. Revere didn’t pursue this line of questioning before. Mr. Revere said his letter was written on July 22nd and sent by facsimile to Mr. Costello about 11 a.m., the day of our last meeting.
Mr. Revere distributed to the members a land court plan which shows the area of Mr. Blythe’s Block 5 in 1923 prior to some filling, and a plan which shows that Block 5 was subdivided in 1948. He said in Mr. Blythe’s plan for erecting a fence, the site for the fence is below the area in the land court plan which was historically Popponesset Creek below mean high water and therefore is subject to Chapter 91 jurisdiction. Norman Hayes who did some consulting work in this area concluded that Mrs.Caffyn had a right go to into that area, and he quoted that Lots A, B, C and D, which are the filled area, represent filled tide lands which, according to Massachusetts law, all residents can use for fishing, fowling and navigation. Mr. Revere’s point was that this is filled tideland and requires a Chapter 91 permit to
do any work. He thinks that in our determination of applicability, if this Commission concludes that Mr. Blythe can construct the fence, he either needs to get a determination from DEP that it’s not Chapter 91 land or get a Chapter 91 license before he does it.
He said Regulation 25 says the plan must delineate naturally vegetated areas and give a description of the type of vegetation. The plan shows some vegetation, but no description of what’s there. In Regulation 25 the key of land subject to coastal storm flowage, which the whole area is, is it’s impact to vegetation. Not knowing the types of vegetation and the actual widths of the fence, it’s not clear how you can determine the impact of vegetation in that area. He showed pictures of the area and said it seems that the width is much narrower than shown on the plan.
He said this is an area very close to a B zone and he thinks it’s pretty clear that the fence is outside the discussion of what was in the B zone in the past and there was not much discussion as to how the fence would be secured.
He said there was a prior order of conditions for moving some boulders with the condition that the arrangement would allow for pedestrian traffic. That order of conditions was appealed and is still pending before DEP.
Tim Caffyn asked, “If I were to build on Conservation land, would the Board allow it or would the Board consider that it was Conservation land that I was building on?” Jack said he would have to file an application and follow all the instructions. Mr. Caffyn asked, “If I were to build on land with a Conservation easement, would the Board consider the fact that the land had a Conservation easement before giving me permission to build on it?” He said that the agreement by which Freddie Blythe considers this his land, but which we know is State land, says in Section 5 that he’s not supposed to build any structures on this lot – it’s a Conservation easement. You as the Conservation Board should consider that there is an easement on this land preventing the building of structures. You may not make a decision as to whether he owns land or not, but the agreement says no buildings or structures shall be erected or maintained thereupon except boardwalks, catwalks and piers and that the
easterly lot shall be not used for a parking lot. That is in what he claims to be his deed, and it’s not even a deed, but an agreement. It’s not in Land Court – it’s in the Registry of Deeds. His land where his house is in Land Court, but this agreement is in the Registry of Deeds.
In addition, he said he believes the plan is faulty. Each time Mr. Blythe has submitted a plan, the property lines have changed. The plan for the pier shows the property in the middle of the way. A more recent plan for the fence shows that the property line has gone over about a third to the left – it’s no longer in the middle. He pointed out the poles for the fence, which he said Bob Sherman said are on the Zeigfried’s property. On the latest plan submitted after Mr. Sherman pointed out that he might be on Mr. Zeigfried’s property, the property line has gone completely off the way.
Nancy Caffyn said her concern is with the beauty of the area – its natural vegetation. Installing posts for the fence would require going into this vegetation on either side and disturb it. She said there are very heavy winds in the area, and she would like Mr. Blythe to state how he would install the fence, what he will use to hold it in place, and how would he do it without disturbing the vegetation.
She said closing the way with a gate has very serious consequences. Last summer a young girl was badly cut having fallen off a motorboat. The ambulance was able to come up to the end of the rocks and carry her through. If there were a gate, that would not have happened. On some weekends there are 300 – 400 people on the spit including boaters. This is one of the few places that provide access for the Fire Department and other emergency help.
She cited a Quit Claim Deed from New Seabury properties on the abutting area (Lot A) to keep the premises in their natural scenic and open condition for public pass and recreation uses.
Brad Caffyn said all the heavy equipment for dredging goes down the right of way to the spit, as well as heavy trucks for cleaning up the seaweed and refurbishing the spit. They open up the rocks to provide access. If there were a gate there, how would they get access?
Bob Wooldridge, a member of the Mashpee Americans with Disabilities Act Committee, made the plea that the requirements for that Act be factored into this discussion. One of the requirements of the Act states that city government is required to make reasonable modification for the disabled. He cited relevant aspects, which may be discriminatory to the disabled.
It was decided to continue this hearing to eight weeks.
Mr. Blythe requested that he receive a list of our concerns prior to the next hearing on this.
Motion made, seconded and unanimously carried to grant a continuance to 10/7/04 at
7:00 p.m., at the request of the applicant.
7:40 p.m., Robert and Syrul Lurie, 29 Shoestring Bay Road (continued from 7/22/04). Scott Horsley represented the applicant and presented the plan. Michael said Bob recommended some compensatory vegetation on the bank.
Motion made, seconded and unanimously carried to approve the plan pending an on site verification of a full-scale plan of the staking and an acceptable mitigation plan.
7:45 p.m., Elliot Bloom, 41 Fiddler Crab Lane (continued from 7/22/04).
Motion made, seconded and unanimously carried to grant a continuance to August 19th at 7:40 p.m., at the request of the applicant.
7:50 p.m., Babette E. Liebman, 86 Summersea Road (continued from 7/22/04).
Motion made, seconded and unanimously carried to grant a continuance to August 19th at
7:35 p.m., at the request of the applicant.
7:55 p.m., Cheryl Harrison, 14 Pem Lane (utilized motorized craft at this dock). Mary Donahue represented the applicant.
Motion made, seconded and unanimously carried to approve the plan pending confirmation that the 6-8-horse engine will not be a problem.
8:00 p.m., Richard Sieklucki, 143 Ninigret Avenue (build a recreational dock). Mr. Sieklucki said he delivered the revised plan on a 20” scale to Bob’s office last Monday. Michael said it had to be submitted five business days prior to this meeting. Mr. Sieklucki said he planted two hydrangeas, and Michael advised him that he has to take them out because they are not native. The applicant will plant 3-4 native plantings.
Motion made, seconded and unanimously carried to grant a continuance to August 19th at 8:10 p.m. at the request of the applicant.
8:05 p.m., Jillian Hayes, 5 Compass Circle (demolish and construct new house, utilities, septic, driveway, walkways, decks, landscaping). Michael Grotzke represented the applicant and presented the plan.
Motion made, seconded and unanimously carried to approve the plan.
Meeting adjourned at 9:01 p.m.
Respectfully submitted,
Frances Wise, Board Secretary
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