MASHPEE CONSERVATION COMMISSION
Minutes of November 30, 2006
Public Hearings
Mashpee Town Hall Meeting Room 3
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Commissioners present: ~Jack Fitzsimmons, Chairman, Ralph Shaw, Vice Chairman, Len Pinaud, Clerk, Lloyd Allen, Cass Costa, Jeffrey Cross, and John Rogers.
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Staff present:~ Steve Solbo, Agent, Drew McManus, Assistant Agent, and Frances Wise, Board Secretary.
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Jack Fitzsimmons called the meeting to order at 6:55 p.m.
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Public Comment:~ None.
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Non-Hearing Agenda
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Old Business:~ None.
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New Business:~
1. DEP installation of gate off Grafton Pocknett Road. Drew said they will be here next week to do the installation.
2. Cape Cod Jeep Club meeting. Drew said he attended this meeting recently. It was very well run, they are a very professional group. He’ll attend their next meeting and see what happens.
3. Americorps. Drew submitted an application to Americorps for assistance, and they are offering to help clean up the Mashpee woodlands and replace the stairs in a walkover structure. He and Renee Fudala will meet with them next week to go over the work that needs to be done, and hopefully we will qualify for their aid.
4. GIS and GPS training. Drew said he and Steve have already been trained for the GPS and will be training for GIS.
5. Approval of minutes for 10/26/06.
Motion made, seconded and unanimously carried to approve the minutes for 10/26/06.
6. High school seniors. Jack asked if we ever heard from any high school seniors about doing possible projects. Drew said no.
Hearing Agenda:
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7:00 p.m., Kevin Howard, 20 and 22 Cappawack Road (new single family dwelling with associated appurtenances). Drew said a continuance was requested because of unpaid taxes.
Motion made, seconded and unanimously carried to approve a continuance to December 14th, at 7 p.m., at the request of the applicant.
7:03 p.m., DeAnna Broadley, Shore Drive (remove dangerous overhanging limbs, revegetate area, install a battered wall for erosion, and replace existing sign at entrance). Tom Jalowy represented the applicant who is the representative of the bluff. He said he went to the area with Steve and Drew three or four times. This whole area is extremely dangerous for people walking Shore Drive to the marketplace because there is no place to step off the road to allow cars to pass through safely. They would like to create a sidewalk with a stone retainer and remove the dangerous limbs, and he described the re-vegetation plan. Since this work is in the flood zone, Steve asked what the pitch of the wall would be. Mr. Jalowy said approximately a 25-degree angle. Steve said the area could
use vegetation enhancement, the project meets all the performance standards, and he recommended approval.
Jack asked what the interaction of this proposal was with the proposed carriage house on the other side. Steve said all they have to do is show representation. This is being brought forth by the association, so the requisite interest is there because obviously everybody within the association applied (at least he hopes so).
Ms. Broadley said eight out of the ten owners who were asked to approve the project voted yes. Two didn’t say no – they just didn’t say anything. Steve said he would qualify that as requisite interest. If it comes to the point in a later filing when we have to interact with that, he will meet on the site with them and figure out what is to be done.
Motion made, seconded and unanimously carried to approve this NOI.
7:06 p.m., Michael Nadzeika, 90 Shore Drive West, Building A (demolish and rebuild a condominium unit, paved driveway, utilities, and patio). John Slavinsky represented the applicant and described the project. Steve said regarding the patio, there is no room for plant mitigation. Mr. Slavinsky withdrew the patio on this application, and he made a note on the plan accordingly.
Motion made, seconded and unanimously carried to approve this NOI, with the exclusion of the patio.
7:09 p.m., Robert and Syrul Lurie, 29 Shoestring Bay Road (vista pruning). Amy Ball represented the applicants and described the plan. Steve said if there is a dock there, part of the vista corridor has to encompass it. This corridor only has to be as wide as the dock, and would be taken off the 39 ft. requested.
Jack asked about the shape of the vista corridor (trapezoidal). Steve said the waterside is 100% and the landward side is 80%.
Motion made, seconded and unanimously carried to approve this NOI.
7:12 p.m., Robert and Stephanie Spencer, 7 Ocean Bluff Drive (remove existing wall and construct and maintain a proposed carriage house with landscaping and restoration per landscaping plan). Cass left the meeting for this hearing and the remainder of the meeting. John Slavinsky and Michael Talbot represented the applicants. Mr. Slavinsky said he doesn’t think the plan submitted earlier will interfere with this one. Steve said if there is an interfacing, we will just have to examine it then.
Mr. Slavinsky said the carriage house would be built into the embankment, so they would not disturb the coastal bank. The red circles on the plan are pine stumps, eleven in total, as a result of cutting by the electric company. In order to construct this carriage house, right now nine of the pitch pines would be removed. He thinks if they wait two more years, there will only be four of them because the electric company will come along and take down five of them – they don’t come in and trim, they take them down. Jack asked if they would have to get an easement for that. Steve said the utility companies are exempt from the Act regarding the cutting of trees, and that NSTAR really doesn’t have a method to their madness -- sometimes they call us.
Mr. Slavinsky said they were required to submit a mitigation plan for 3,230 sq. ft., which they have done. The mitigation area by the proposed carriage house is 550 sq. ft., and will be planted with plantings which will not interfere with the electric wires, so there will be nothing for the utilities company to cut down.
The second area is on the ocean side of the house. There’s 3,500 sq. ft. there. Mr. Talbot said he visited the site years ago with Bob Sherman and they always wondered why this area was so barren. The story he heard was that many years ago it was used as a construction staging site for one of the neighboring buildings. In the wintertime nobody noticed it, but the disturbance was so severe that only very recently has there been some colonization by American beach grass. The mitigation plant list for this area will create a dune coastal bank kind of ecology. It will include a couple of red cedar trees.
Mr. Slavinsky said the plan shows a 680 sq. ft. carriage house and over 4,000 sq, ft. of mitigation. Jack asked if there will be any bedrooms in the carriage house, and Mr. Slavinsky said no. Any request for bedrooms in the future would require a new application.
Jack briefly summarized a number of letters from abutters and other interested citizens who oppose the project. Only three of the letters came from direct abutters.
One stated that there would be 20 trees destroyed. Another stated that many trees would be destroyed and would set a precedent. Another stated there’s no need for a carriage house as none of the other homes in that area have a carriage house. (Jack said there are at least two other carriage houses in the area.) Another said 30-40 trees would be removed. (The plan calls for cutting down nine trees.) Another said it wouldn’t be good for the animal life. Another said the vegetation will be destroyed and the area is quite sensitive to erosion. (Steve agreed that it is a sensitive area to erosion. However, we just passed a project earlier tonight, and he didn’t see any opposition to that one. The project is going to provide a momentary disturbance as far as erosion
goes, but he saw no opposition from any of these same people on the Broadley filing. The nine trees to be removed can be replaced, pines grow very fast in this area, and it’s not like they’re endangered species.) Another letter stated there are well over 100 trees that will be cut down. Another stated when it rains it will pass over into Dean Pond. Another stated it will set a precedent in these sensitive areas. Another opposed it because of the safety of passage on Shore Drive. (Steve said we’ve already addressed that with the Broadley filing.)
Jack said that some of these people do not live in this area and are not abutters, but if there are 10 people who are willing to sign and send in letters considering an application, we are allowed to accept them, and there are more than 10 in this case. Steve said he could debunk every opposition point in every letter. He thinks it’s arbitrary and capricious as to where the letters are coming from. One writer referred to the road and said in parenthesis “Sherwood Drive, I think that’s the name of the road.”
Steve said:
a) The only coastal dune that comes into play in this project is on the backside of the house that is being enhanced. The one up front is not a coastal dune – it’s a coastal bank by definition because it has a 10 to 1 slope or less within a flood zone. Coastal banks are integral or the following: “If the seaward base or site of any elevated land other than a coastal dune which rises at the landward end of a coastal beach, land subject to title action or other wetland…” is the definition, and it obviously fits within that definition.
b) The performance standards state, “You shall not destabilize that bank, you should not interfere with any sediment transport that is happening.” Steve said that there’s no sediment transport coming from this bank, because it’s simply a bank by definition.
c) There are obviously no bulkhead, revetments, sea wall structures, groins, or other coastal engineering structures.
d) There are no shellfish there. It would be tough to prove that putting a carriage house at the top of the bank and putting in all kinds of plantings to stabilize that bank would have any affect on shellfish.
e) He firmly believes that the construction would be done with no destabilization of the bank. Then the bank will be mitigated for and stabilized – it’s already pretty stable. We had a project that we approved earlier tonight that is going to address any other erosion problems on the entire expanse of the bank. So destabilization is not a factor, we’re not going to get any erosion or runoff that’s going to impact any invertebrate or vertebrate species.
f) Re the By-law, when it comes to the State Act, he and Mr, Slavinsky talked to people in DEP, and they have allowed houses to be built on coastal banks – we’ve seen it here in Mashpee.
g) In the local By-law we have this wonderful mitigation regulation that allows for projects that don’t necessarily fit the need of the requirement. However, when the need of the requirement is not met, what the Commission has been doing mostly under his tenure has been that when there’s overwhelming mitigation provided – and we’re talking about an area behind the house that has obviously been used for something that should not have been, it was used as a staging area for a house constructed on the bluff. He and Bob had wondered why it was struggling and not like any coastal dune beside it or down the stretch, or down by Mr. English’s property, or the old Garguila residence, etc. So the absolute enhancement of that coastal dune behind that house is a definite plus. We needed
to have 3,230 sq. ft. of mitigation provided, and 4,050 is provided. He’s sure the pine tree issue can be addressed by replacing them, but as far as he’s concerned, planting pine trees in an area where the utility company is going to come through and just cut them out in a couple of years anyway is worthless. He’d rather put in shrubs and other plants that are going to be low-growing, that aren’t going to interfere with any utility lines.
h) We aren’t setting a bad precedent here because there are two other carriage houses out there – the first two houses have them.
i) This project only had a problem with the By-law, and that was they couldn’t portray need, but they could portray the fact that there is going to be no loss of wildlife habitat with the carriage house specifically on the bank in front of the house, and we’re going to enhance the eco tone between the coastal bank and the coastal beach and the secondary dune to the point where we might get an establishment stretching across the board. It’s got to start somewhere, and Mr. Spencer is willing to put a lot of time, effort and money into this to establish a starting point that could easily stretch out to the rest of the area. So it’s a definite plus. All the positives in this project completely outweigh any negative anyone can derive from the establishment of the carriage house that is
in fact not on a coastal bank by definition. Some coastal banks do have value to wildlife habitat, and do provide sediment to coastal beaches and coastal dunes, but this one does not. He highly recommends approval. He wants to see how the mitigation works out and he thinks it’s going to spread.
Attorney Peter Lyons, representing Mr. and Mrs. William Casey, 5 Ocean Bluff Drive, abutters, said that three of the letters Jack read come from three very close neighbors – Mr. English, LaGrippe, and Mr. Garguilo. He said W. Sterling Wall, Senior Project Manager/Coastal Geologist, Daylor Consulting Group Inc., will address the concerns of Mrs. Casey, the abutters, and the other concerned citizens of the Town of Mashpee. He said that we have a fiduciary obligation to the citizens of the Town of Mashpee and anyone within the confines can make comments. Steve said they can make comments as long as the comments are concerns about the interests of the By-laws and the Wetlands Protection Act, and the majority of the concerns expressed in those letters are not interests of our Act or the By-laws.
Attorney Lyons: “That’s how you interpret it, but they believe there’s going to be some adverse impact.”
Mr. Wall said this is the second review of this project that Daylor has done and it’s the second time they have come to the conclusion that it’s premature to issue an approval, and premature to review this as a complete filing because it’s not complete. He then gave his critical comments on the project as stated in his letter of November 29, 2006 to John Fitzsimmons, copy attached to these minutes.
Steve: How old is your National Heritage map?
Mr. Wall: October 1st, 2006.
Steve: That’s the same one I have, and the area of concern is the only little block in New Seabury that is not located within the area of priority habitat. The line starts at mean high water and goes out.”
Mr. Wall: “That’s your interpretation. I don’t believe that’s the appropriate interpretation.
Regardless of what our individual opinions may be, the actual authority here is going to be the Natural Heritage Endangered Species Program.”
Steve: “I think it’s something they are going to have to verify.”
“Regarding the utility question, I don’t really care what they do with the utilities unless it goes beyond the work limit, which it could.”
“As far our local By-law goes, when it comes down to the mitigation regs and other regs in general, since our By-laws operate under the State Act, we can waive anything we want as long as it doesn’t get less than the State Act.”
“On the replacement of nine pine trees, I frankly am in favor of replacing them with something more valuable. There’s enough scrub pine on that specific embankment.”
“On the vertical buffer question, I love when they don’t rely on local officials to say when Dean Pond is going to overflow and wash away all those houses on the bluff. It’s going to take a tsunami for that to happen. I think we may need to rebut, or at the least the applicant does. That’s the Commission’s concern.”
Jack said we may need an opinion on whether mitigation on the dune is appropriate. Steve said this Commission could waive mitigation. There are other carriage houses out there.
Mr. Talbot said that there is no evidence that this is a dead zone. There is some amalfi, bayberry and beach plum starting to grow. All we’re suggesting is that it should be better vegetated than it is. We’re not suggesting turning it into a forest, we’re actually talking about coastal shrub land and grassland, etc. He said they are going to do whatever they can to oppose this project. The question is what among these things is really serious enough to require a continuance. He’s not worried about what the opposers are concerned about. He’s worried about what the Commission is concerned about. The question is what does the Commission need that requires a continuance.
Jack said he wants to hear from Natural Heritage.
Mr. Wall said he hopes the Commission would require the following:
1. Define what the foundation is going to be.
2. To put that foundation in will require an excavation. What is the excavation hole going to look like? How much actual alteration is taking place? Does it clearly go beyond the box shown on the plan?
3. If the work limit is supposed to be the box shown on the plan, they will clearly have to do work outside of that box. Show the box which includes the area and slope of excavation. Pretend it’s only 2 to 1 as opposed to 3 to 1. You’re going down 4-5 ft., and out 8-10 ft. That means that whatever vegetation is there, whatever stonewall is there, whatever utilities are there will need to be moved when the hole is dug. Show where the utilities are. Don’t put it on the planting contract after you’ve issued an order.
4. Provide a Notice of Intent plan that really shows what work is proposed so the Commission can make an informed decision.
Jack agreed that a number of citizens are really interested in this project, and he thinks the Commission should examine it fully before passing judgment one way or the other, and he recommended a continuation.
Mr. Talbot: “The work limit is inviolate.”
Jack: “Is the work limit beyond the carriage house foundation as shown on the plan?”
Mr. Slavinsky: “The work limit is shown on the plan and is 3-4 ft. beyond the foundation.”
Steve: “You can put the work limit right along the top of the bank if you want.”
Attorney Lyons: “This is a caveat. Mr. Cross has brought up a very good point, that this is a highly controversial project, and we will pack this hall at the next meeting. This is for the benefit of all of you who serve in a community spirit. But we may have a severe problem – it may be a criminal problem, it may be a civil problem. Mr. Talbot served on this Board. When did he resign?”
Jack: “I don’t know. We can find out.”
Attorney Lyons: “He was here at the May meeting.”
Mr. Talbot: “I was not at that meeting. I have never sat to hear one minute of testimony on this. We have already discussed this with Town Counsel.”
Attorney Lyons: “I have you reclusing yourself at the February meeting, March meeting and the May meeting.”
Mr. Talbot: “I was out of the room.”
Attorney Lyons: “No, you weren’t. You sat right there. We had another meeting upstairs and you reclused yourself there. Let me suggest to you, Mr. Chairman, that the impropriety that could be going on here would reflect badly on this Board that serves the community well. I’m suggesting to you to talk to Town Counsel and find out about a potential violation of Chapter 268-A, which is the Conflicts of Interest Statute in this Commonwealth and which goes to the ethics of public officials. Mr. Talbot is prohibited under that law to appear before you for one year from the date of his exit from the Board.”
Jack asked Steve to review the tape and he told Attorney Lyons that we don’t respond to threats. Attorney Lyons said he’s not trying to threaten him. A shouting dialogue between Messrs. Lyons and Talbot followed as to whether Attorney Lyons was threatening or not.
Attorney Lyons: “It’s not a threat, I’m stating a fact. Chapter 268-A is the governing statute and I would ask you to have the Town Counsel look into this.”
Jack thanked him for his comments.
Motion made, seconded and unanimously carried to grant a continuance to December 28th at 7:00 p.m., at the request of the applicant.
7:15 p.m., Barry Stone: 17 Compass Circle (construct foyer entrance with bath above). Lloyd Sherwood represented the applicant. Steve described the project and recommended approval.
Motion made, seconded and unanimously carried to approve this RDA.
Meeting adjourned at 8:25 p.m.
Respectfully submitted,
Frances Wise, Board Secretary
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