MASHPEE CONSERVATION COMMISSION
Minutes of August 19, 2004
Public Hearing
Mashpee Town Hall Meeting Room 1
Commissioners present: Jack Fitzsimmons, Chairman, Michael Talbot, Vice Chairman, Leonard Pinaud, Clerk, Lloyd Allen, Cass Costa, Jeffrey Cross, and Ralph Shaw.
Staff present: Steven Solbo, Assistant Conservation Agent, and 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. Tom Smith, 226 Monomoscoy. Steve asked the members for their signatures on an Enforcement Order to revoke an Order of Conditions..
2. Litvack, 11 Taffrail Way. Steve said there is an illegal jet ski ramp here, which did not comply with an Enforcement Order. Bob sent a letter on August 12th saying that the ramp must be removed within five days of receipt of letter or he will be fined $100 per day until it’s removed.
3. Enforcement Order – Mr. Maglione, 30 Ockway Bay. Steve said an Enforcement Order was issued for an illegal pool fence.
4. RFAA SE 43-2062. Sugarman, 83 Tide Run. Steve said this was for an extension permit and Bob recommended approval.
Motion made, seconded and unanimously approved to approve this request for an administrative approval.
5. RFAA SE 43-2031. Mr. Liatsos, 118 Shore Drive West. Steve said this was for an extension permit and Bob recommended approval.
Motion made, seconded and unanimously approved to approve this request for an administrative approval.
New Business:
Motion made, seconded and unanimously approved to support the Planning Board to establish a DCPC in the Town of Mashpee
Hearing Agenda
7:00 p.m., William Kramer, 41 Pond Circle (continued from 7/22/04). Mr. Kramer was present. Richard Bosse, M. R. Bosse Construction, represented the applicant and described the plan. Michael said the plants should be placed 4 ft. on center and comply with our list of native shrubs and trees, so that the area will be densely vegetated. Mr. Bosse initialed his compliance with the vegetation recommended by Michael.
Motion made, seconded and unanimously carried to approve the plan.
7:05 p.m., Ken Marsters, 12 Wintergreen Road (continued from 7/22/04).
Motion made, seconded and unanimously carried to grant a continuance to September 2nd at 7:30 p.m.
7:10 p.m., Eric Peterson, 80 Punkhorn Point (continued from 7/22/04). Dave Sanicki represented the applicant and presented the project. Jeffrey said he thinks there will be a major problem with growth in the water.
Motion made, seconded and unanimously carried to approve the plan.
7:15 p.m., Betty Waxman, 14 Broomstick Way (vista pruning and maintenance in perpetuity).
Ms. Waxman presented the plan.
Motion made, seconded and unanimously carried to approve the plan.
7:20 p.m., Dolores Baker, 2 Sunset Circle (permit a dock). Joe Harvey represented the applicant and presented the plan. Cass mentioned having been at the site several months ago and the area had been vegetated, then stripped and now it’s revegetated. Also, the brick walk was not there – it was just grass.
Motion made, seconded and unanimously carried to approve the plan.
7:25 p.m., Paul Hanlon, 51 Popponesset Island, 3 Bight Circle (replace stone revetment with vinyl sheet piling). Tom Doyle represented the applicant and presented the plan. Jeffrey questioned the workability of the project. Michael asked if it will act as a retaining wall as well as a revetment, and was told yes. Cass said there is no staking there.
Motion made, seconded and unanimously carried to approve the plan pending verification of the staking of the work limit.
7:30 p.m., Lewis Rubin, 43 Tide Run (remove concrete deck, move pool equipment, refinish pool interior, install pool deck and landscaping). Mary La Blanc represented the applicant and presented the plan.
Motion made, seconded and unanimously carried to approve this amended order.
7:35 p.m., Babette E. Liebman, 86 Summersea Road (continued from 7/22/04). Cass reclused herself from this hearing. Sarah Turano-Flores, Donald Schall and Michael Grotzke represented the applicant.
Jack read a statement that we will now consider information appropriate to this hearing and anyone who wishes to offer testimony can do so now.
Ms. Turano-Flores said at the last full hearing, Bob Gray talked about the wildlife habitat value. Subsequent to that they hired Don Schall who visited the site and came up with a vegetation plan that is reflected on the present plan. Most notably, there is vegetation in a graphic form shown in the island and on either side of the property. she said of greatest concern to Mr. Talbot and the other Commissioners at the last hearing was the 35 ft. buffer zone. The graphic depiction is not on this plan but is noted in the margin with Mr. Schall’s narrative, which was submitted to Bob Gray. She received a copy of Mr. Gray’s reply today. The Commissioners had not seen this reply.
She said first there was the issue of the delineation of the coastal bank, which does need to be addressed this evening even if we don’t quite close the hearing this evening, because the Board of Health is awaiting our confirmation that the delineation at the top of the coastal bank is correct. She said she brought Mr. Schall to this meeting to discuss how that delineation came about. It was created using the DEP policy 92-1, and Bob Sherman indicated to her that he agrees with the delineation as shown on this plan. Today Mr. Gray also said he concurs with the revised top of the bank. This plan now shows the septic components completely outside of the coastal bank.
Jack said this coastal bank has moved dramatically -- it was across the road. Ms. Turano-Flores said she would let Michael Grotzke speak to that. Michael Talbot agreed with Jack and said in fact there was a very steep grade change just a few feet in from that road and he didn’t see how that’s not a bank – he’s been there.
Michael Grotzke discussed the relationship of the coastal bank under the policy plan with respect to the 100-year flood plain and the slopes above the 100-year flood plain. Looking at the 100-year flood plain and the slopes in that vicinity, and applying policy 9295 they came up with this flood plain. Michael Talbot said that’s fine under the Wetlands Protection Act, but Mashpee has its own definition under Chapter 172 which is considerably more conservative, and under that definition it talks about a point where a 1 in 4 grade change is reduced to a 1 in 10 change, which really doesn’t take place until you get at the top of that slope just in from the road.
Mr. Grotzke said Mashpee also uses the 100 year flood plain and the slope is less than 1 in 4 – it’s 1 in 5. If it was greater than 1 in 4 he would agree. Ms. Turano-Flores said this plan was submitted two weeks ago, and Bob said he’d try to look at it before his vacation. She called him the Monday he returned and he said he agreed with it. He did not get into the specifics of the difference between Chapter 172 and the DEP policy. Sabatia’s reference to Chapter 172 in its report also agrees with it.
Michael Talbot said the Selectmen selected us as the Commissioners and we don’t always agree with the Conservation Agent. He read from Chapter 172: “The top of the coastal bank should be considered to be one vertical foot higher from the top of the bank that defined Program Policy 92-1.
Don Schall then addressed the coastal bank in relation to the flood plain zone. Michael Talbot said this is new information and he has to have time to look at it. According to this new delineation, the septic system is within the buffer zone of the coastal bank, rather than on the coastal bank itself.
Ms. Turano-Flores said the coastal bank issue came up when Bob was concerned about the coastal bank in relation to the septic system and the Board of Health’s regulation relative to the setback from the top of the coastal bank. The Board of Health has preliminarily reviewed this, but hasn’t had its full public hearing yet because it would like us to confirm the delineation of the top of the coastal bank before it gives its approval. Mr. Grotzke said the 100 year flood plain has an 11 ft. contour. Michael Talbot said the Mashpee regulation would be one foot higher. Mr. Grotzke said they moved the septic system on the July 20th plan to be as far to the west as possible.
Jack read from Robert Gray’s letter of August 19, 2004 as follows: “The locus parcel is well vegetated and consists of the following wetland resources areas: salt marsh, land subject to coastal storm flowage and coastal bank. It is proposed to develop the lot for a single family home with appearances, portions of which will be built within the coastal bank and land subject to coastal storm flowage. The project as proposed seems to meet the performance standards at 310 CAR 10.30 for coastal banks. LSCSF does not have performance standards.”
Michael Talbot said he’s not concerned about the Wetlands Protection Act, but the coastal bank. Ms. Turano-Flores said the concern expressed at the last full hearing was that the white pine tree located approximately in the middle of where the driveway will go was essentially the only wildlife aspect of the site according to Sabatia’s last report dated March 15, 2004. She said Mr. Talbot noted that that the vertical layering of the top was to be an extension of a corridor of the trees along the edge of the road, and he felt this established what he called a vertical layering.
Michael Talbot said he has a picture of that very corridor in the wintertime, which shows that there is a significant amount of canopy. Ms. Turano Flores said in response to that they asked Mr. Schall for a vegetation plan that would recreate that vertical layer by planting four white pines and use Mr. Schall’s narrative to establish not only the vertical layering but also a shrub layer within the 35 ft. buffer zone as well as an herbaceous layer. Sabatia’s conclusion in their March 15th narrative was that this wildlife habitat value on the site was insignificant. She said they believe they have made an improvement to that in spite of the fact that the house will now be there. What they are suggesting in the way of plantings will enhance and actually provide significant wildlife habitat,
especially in that 35 ft. buffer zone.
Mr. Schall said he had a disagreement with the original Sabatia opinion that the white pine was significant. He would consider that the 35 ft. buffer with heavy shrub cover be more significant for wildlife. He had recommended a one to one replacement of the native shrubs not only on this site but the adjacent properties to the left by replacing some of the bittersweet and honey suckle which are not a native species. He went into more detail on his suggested plantings.
Michael Talbot asked if there is a reason why there were no canopy trees recommended for the 35 ft. buffer. Mr. Schall said there are some in it
Jack said that if we approve the application, Bob recommended having an oversight of the vegetation for five years.
Michael Talbot said for the nine years he has been on this Commission, he has never seen the Commission consider a project which involves to this degree a major alteration of a natural resource area -- in this case a coastal bank. When Summersea was constructed there was no Wetlands Protection Act, four years ago certainly no Mashpee Wetlands By-law, and things were permitted that would never be permitted today. We are talking about today’s standards and particularly Mashpee’s Wetlands By-law, Chapter 172, which was one of the first in the State and a model for the community that has been based on scientific knowledge – it wasn’t just arbitrarily developed. He quoted from Regulation 16 describing coastal banks as follows:
Critical Characteristics and Presumptions of Significance. The critical characteristics and presumptions of significance of coastal banks under the Mashpee Wetlands Protection By-law is the same as expressed under the Wetlands Protection Act with the exception of the following paragraph.
Whenever any portion of a coastal bank is vegetated, such portion’s topography, plant community, composition, structure, soil characteristics provide important food, shelter, migratory areas of breeding, nesting and brood bearing for wildlife, especially birds and animals.
He said because of this and the role that vegetated portions of a coastal bank have as wildlife habitat, they are important to recreation, which is one of the interests of the Mashpee By-law. He pointed this out because the Superior Court has certified him as an Expert of Conservation and it his belief that while it might not be a magnificent wildlife habitat, there clearly is some wildlife habitat value there. Under the performance standards, the physical characteristics and location of coastal banks are critical to the protection of wetland values. He quoted further from Regulation 16:
Activities which will result in the building within or upon, removing, filling and/or altering as defined in Section 172.9 the coastal bank within 50 feet of said bank may be permitted if necessary for access to beach and water, including visual access, the maintenance of an already existing and lawful structure [which it is not], construction of an elevated walkway, vista pruning, and any other activity on a single block which alters up top 5% of the bank’s square footage or 100 sq. ft., whichever is less, if the applicant has demonstrated to the satisfaction of the Commission that such alteration will not have adverse effects. [This is way beyond that.] Any proposed work proposed by the Commission on a coastal bank within 100 ft. of such bank other than as provisioned above shall not destroy any portions of
the existing bank, nor shall the work impair the banks to perform any of the functions expressed in the Critical Characteristics and Presumptions of Significance.
He said the fact is that the actual construction of this house is on the bank itself --- maybe not the septic system, but he would have to have more time to look into that. The preponderance of this project is directly on the bank. It will involve digging, filling, removal of vegetation, altering soil characteristics and all the other characteristics that Mashpee has made an effort to protect what we call the coastal bank because of their importance. So, when you look at Chapter 172, 781, you’re talking about lands within 100 ft. of specific resource areas that are presumed important for the protection of these resources because these activities undertaken in close proximity to wetlands, rivers, streams, lakes, ponds, creeks, etc. as a consequence of construction, or over time as a consequence of daily operation or
existence of activities, these and other impacts of construction and use include without limitation erosion, loss of ground water recharge, or clearly in this case, poor water quality and loss of wildlife habitat.
He said the fact is that he has never seen this Commission come to a conclusion where it’s going to say coastal banks don’t really count -- we can do anything we want with them. We can build on them, we can tear them up, we can rip out the vegetation, and it doesn’t really matter. He thinks it’s pretty clear under Chapter 172 that it does matter. The coastal banks are important and our resource areas are worth defending. If we approve this project, future projects will come before us and say it’s just a coastal bank – it doesn’t really matter.
Referring to the Sabatia report submitted March 15, 2004, Ms. Turano-Flores said in no way are they are saying that coastal banks are not important in Mashpee, that the regulations should be done away with, and that they can rip it up irrespective of the regulations. They believe their proposal meets the performance standards for coastal banks, because in their opinion and she believes the opinion of the Commission’s expert, although he is not here they will not impair the values presented by this coastal bank. To the extent that there is storm damage prevention and flood control, all construction will be above the 100 year flood elevation. The most significant aspect the Commission is talking about here is the wildlife habitat, and in your own expert’s report of March 15th, 2004, he states, “Due to
the development of all the surrounding lots along Summersea Road and the shoreline of Ockway Bay, and due to the small size of the subject parcel located at 86 Summersea Road, the vegetated upland portion of lot, including land subject to coastal storm flooding and coastal bank, are likely to have only minimal wildlife habitat potential.” He concludes, “The developed nature of the surrounding lots and the small size of the subject parcel provide for only minimal wildlife habitat potential.”
She said she has great respect for Mr. Talbot and heard him cite in Supreme Court our guidelines for activities within a naturally vegetated buffer zone. She took this seriously as well as the talk about the two most important components of wildlife habitat being plant community structure, plant species composition, and the vertical layering of both. She asked Don Schall to come up with a plan where they are taking a lot with minimal wildlife habitat value, and even though they are asking to build a house, they are enhancing wildlife habitat value on this lot.
Michael Talbot said the only problem with that statement is that Ms. Tores-Flores said all work would be above that flood plain line. Obviously, the preponderance of the work is below the flood plain line. The footprint of the house shows the construction line right up to the hay bale line, which he still is not sure the contractor can do. He said that because the preponderance of the work is actually on the coastal bank itself (almost the whole house is on the coastal bank), and Mashpee specifically protects coastal banks from that amount of alteration (5% or 100 sq. ft., whichever is less), this project goes way beyond what is permutable under Chapter 172. That is his point.
Michael Talbot said there is obviously a large area of what is now vegetated. The first plant community structure will be gone, and around the periphery will be some trees and new shrubs put in, but obviously the significant portion of that vegetation will be gone.
Len asked if there is any mitigation that can be added. Michael said he thought there is a nice attempt at mitigation, he’s not suggesting that’s it. Jack said he’s satisfied with the wildlife habitat issue based on representation we have from experts, but he’s not comfortable with the coastal bank issue.
Ms. Turano-Flores said this is very important in that this is otherwise a buildable lot, it’s of the right size. They need to know what else can be done to mitigate the coastal bank concern. The delineation of the coastal bank was for the Board of Health purposes.
Jack said the fact that they are building a house along the coastal bank is the issue that he is concerned about. Michael Talbot said it affects the wildlife value, and obviously it impacts the bank itself.
Ms. Turano-Flores said 3/4th of the lot is coastal bank. She asked, “If this is being set up for a denial, has the Commission ever denied the buidability of a lot?” Before they do so, perhaps they would want to discuss with Bob Sherman, the staff and/or Town Counsel what the ramifications are. Jack said we certainly have made certain portions of a lot totally unbuildable, but he doesn’t know if we ever declared an entire lot unbuildable. Ms. Turano-Flores said it’s a rather significant vote then. Jack said yes, every vote is significant – it affects the applicant. Every applicant’s vote is important to us.
Motion was made pursuant to Chapter 172, Sections 7A and 12 to deny the applicant for failure to meet the requirements of Chapter 172, failure to meet the performance standards of Regulation 16, and failure to avoid or prevent unacceptable significant cumulative effects upon the buffer zone of Chapter 172, and a proposed work alteration with no condition for adequate protection of the wetland values of Chapter 172. This motion was seconded and unanimously carried.
Ms. Turano-Flores said the motion for denial was made under the local By-law. The application is under both the State Wetlands Protection Act and the local By-law. She said the Commission is allowed to approve it under the Act and still deny it under the local By-law, but the project can’t go forward without approval from both. Michael Talbot said he hadn’t considered that aspect. He’s concerned with the Mashpee By-law – the State is much more lenient.
Ms. Turano-Flores said usually the whole application is denied outright as an umbrella. She has litigated cases that were approved under the Act and denied under the local By-law, so there was only one appeal in the Superior Court.
Motion made, seconded and unanimously carried to table the consideration of this project under the Wetlands Protection Act.
7:40 p.m., Elliot Bloom, 41 Fiddler Crab Lane (continued from 8/5/04). Cass reclused herself from this hearing. Jack Vaccaro represented the applicant and presented the plan. Michael said we generally have been using 5 ft. on center, and Mr. Vaccaro said he’d be glad to comply.
Motion made, seconded and unanimously carried to approve the plan with the condition that sufficient approved plants be installed to ensure that they be 5 ft. on center.
7:45 p.m., Ernest Burns, 7 Cricket Way (install prefabricated carport). The carport is in the rear of the house.
Motion made, seconded and unanimously carried to approve the plan.
7:50 p.m., Willowbend Development Corp. LLC, 37 Shoestring Bay Road (continued from 8/5/04). No one was present to represent the applicant.
Motion made, seconded and unanimously carried to grant a continuance to September 2nd at 7:35 p.m. The applicant will be required to approve it.
7:55 p.m., Thomas Smith, 226 Monomoscoy (revoke all work permitted except for coastal bank stabilization.) Mr. Smith was present. Ed Pesce represented the applicant. He said he became aware of this project today and suggested that he meet with staff or Bob Sherman on site to understand what corrective actions can be made. He said Mr. Smith takes this seriously. Michael said the concrete bags are the issue – they never should have been in the revetment because they are a pollutant. Mr. Smith said he didn’t understand that he had to remove them from the property, but he would be glad to do so. Michael said we can continue this and confirm that they have been removed and then we can reconsider this revocation.
Jack read Bob’s recommendation to go ahead with the revocation unless Mr. Smith acquiesces to appoint a Clerk of the Works – either Ed Pesce or Norman Hayes -- and give written reports to the Commission weekly while work is going on with the revetment and monthly until a COC is obtained.
Mr. Pesce said Mr. Smith is not ready to finish the work there yet, and has asked him to revise the position and shape of the dock which has already been approved and re-approved in a superceding order because of an appeal by an abutter. The fence has been relocated, and he assumes there is no issue with that. He will be preparing a revised plan to submit to the Commission. Jack said the revetment has to be built according to the plan, to which Mr. Pesce agreed. Michael said Bob doesn’t have the time to continually go to the site and check on things. If we are getting a report from a third party whom we agree is trustworthy, then at least we have a sense that nothing is being done that is illegal and the things that are being done are following the Order of Conditions. When they are doing the revetment, we
should have weekly reports.
Motion made, seconded and unanimously carried to that we require Thomas Smith as part of this Order of Conditions that he hire a Clerk of Works – Ed. Pesce and/or Norman Hayes -- to monitor the work and give a written report to the Commission weekly while work is going on and monthly until a Certificate of Compliance is granted, to make sure they properly put in a revetment according to the plan of record be put in post haste, and the bags of concrete are removed from the site.
8:00 p.m., Steven Belkin, 50 Triton Way and Coastal Beach Seaward (continued from 8/5/04).
Motion made, seconded and unanimously carried to grant a continuance to September 16 at 7:00 p.m., at the request of the applicant.
8:05 p.m., James Crocker Jr., Trustee, 14 Sampson’s Mill Road (continued from 8/5/04).
Motion made, seconded and unanimously carried to grant a continuance to September 16 at 7:05 p.m., with the agreement of the applicant.
8:10 p.m., Richard Sieklucki, 143 Ninigret Avenue (continued from 8/5/04). Mr. Sieklucki presented his revised plan.
Motion made, seconded and unanimously carried to approve the plan with the Order of Condition that the mitigation plantings meet the requirements.
8:15 p.m., Thomas Ferrante, 71 Timberland Drive (vista pruning with maintenance in perpetuity ). Mr. Ferrante presented the plan.
Motion made, seconded and unanimously carried to approve the plan.
8:20 p.m., Alan Melzer, 51 Sunset Circle (remove nuisance vegetation, beach nourishment, construct walks, driveway, landscape). John Slavinsky represented the applicant and presented the plan. Michael said they are asking to remove vegetation on the BVW and recommended they come back with a plan that complies with our regulations.
Motion made, seconded and unanimously carried to grant a continuance to September 2 at 7:40 p.m., with the agreement of the applicant.
8:25 p.m., Lawrence Werrick, 10 Wheelhouse Lane (vista pruning and landscaping plantings). Brian Casey represented the applicant and presented the plan. Michael said in our vista pruning guidelines we generally like to have the path included in the vista corridor, rather than separate where the path is a vista corridor itself. If the corridor is shifted over to the path, it would still give a view of the dock. The history of the property was that there was an illegal cutting, then a mitigation planting, then the mitigation trees were cut. We made it pretty clear that we would not entertain a vista pruning until there was evidence that the oaks -- either those planted or those allowed to re-grow --- would actually be to a point of replacing some of the substantial alterations. Mr. Casey
said he is only asking for 20 ft. and he thinks he’s allowed 30 ft. – he thinks the frontage is 130 ft. Michael agreed that the corridor is conservative and could have been expanded. In view of the history of the property, Jack recommended that Mike visit the site before we make a decision.
Motion made, seconded and unanimously carried to grant a continuance to September 2 at 7:45 p.m., with the agreement of the applicant.
Meeting adjourned at 9:01 p.m.
Respectfully submitted,
Frances Wise, Board Secretary
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