MASHPEE CONSERVATION COMMISSION
Minutes of August 17, 2006
Public Hearings
Mashpee Town Hall Meeting Room 1
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Commissioners present: ~Jack Fitzsimmons, Chairman, Len Pinaud, Clerk, Lloyd Allen, John Rogers, Cass Costa, and Ralph Shaw.
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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. RFAA SE 43-2426. 146 Popponesset Island Road, Michael and Beth Moskowitz.. Drew described this plan involving adding jet-ski lifts to the dock. Steve said typically we make people file an amended order for this type of thing, but this is such a minor issue and we’re going to be seeing a lot of such issues, and we might as well make them an administrative approval.
Motion made, seconded and unanimously carried to approve RFAA SE 43-2426.
2. RFAA 43-2380. Bay Point Condos. Drew described this gas lines project and Steve recommended approval.
Motion made, seconded and unanimously carried to approve RFAA SE 43-2380.
3. Pamphlets for the public regarding trail maintenance in the Mashpee River Woodlands. Steve said there will have to be a rerun of this very valuable brochure. The cost will be roughly between $3,000 and $5,000 and he doesn’t know now what percent Conservation will be expected to pay. Len asked if the brochure can be put on the website, and Steve said maybe for this run we could ask for the PBF format. This matter can’t get on the Town meeting until May of ‘07. In October we should be transferring a very large sum of money into the 40-8 (c) account which is for the acquisition and maintenance of Conservation land, and this falls along the lines of supporting passive recreation within the area.
4. Approval of minutes for 7/20/06.
Motion made, seconded and unanimously carried to approve the minutes for 7/20/06.
5. Community service project: Trail maintenance in Mashpee River Woodlands. Steve informed the members that Chad DeLuca wants to do maintenance on the trails because they are starting to be overgrown.
Motion made, seconded and unanimously carried to support this community service project for trail maintenance and management.
6. Ethics issue. Steve said he talked with Patrick Costello who said that Michael Talbot couldn’t deal with cases that have already been heard by the Commission, so he can’t come back with an amended order on any case he sat on. However, the John Pino hearing tonight is a brand new filing, so it meets the restrictions for the ethics court. Michael said that Mr. Costello advised him that he could represent any case from which he reclused himself at the beginning.
Hearing Agenda:
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7:00 p.m., Fran Reavey, 42 Cayuga Avenue (continued from 7/6/06). Steve said this has to be continued because we have not heard from Natural Heritage. He said that in the past, if we hadn’t had a negative reply from them within 30 days, we could consider the application to be acceptable to them, but now we have to wait for their approval.
Motion made, seconded and unanimously carried to grant a continuance to September 28th at 7:00 p.m., at the request of the applicant.
7:05 p.m., 260 Heath Street Realty Trust, 16 Popponesset Island Road (demolish and rebuild new single family home with associated appurtenances). Tim Santos represented the applicant and described the project. Steve said this is a net plus for us and he recommended approval.
Motion made, seconded and unanimously carried to approve this NOI.
7:10 p.m., Jonathan Burtis, Riverside Road Public Access Ramp (remove all structures in the Riverside Road layout, portions of bulkhead, steps and landscaping walls). John Slavinsky represented the applicant. Steve said the plans are new to him, he has not had a chance to review them, but they do meet the requirements for an RDA filing. He said we are hazy on the issue of whether or not we have permission to accept them without engineered stamps, so the application will have to be continued to the next meeting.
Motion made, seconded and unanimously carried to grant a continuance to August 31st at 7:15 p.m., at the request of the applicant.
7:15 p.m., Town of Mashpee, Riverside Road (continued from 8/3/06).~ Catherine Laurent, Department of Public Works, said at the last meeting the abutter raised some potential issues based on a form they had received from the Building Inspector. That matter was misrepresented before the Board. The zoning issue has to do with the abutter’s property and the structure on that property is not what the Town is proposing.
Steve said from the performance standards of the Mashpee By-law and from the Wetlands Protection Act standpoint, we have covered every issue. At the last meeting it was raised that the Division of Marine Fisheries has not commented. Simply put, when the Division of Marine Fisheries gets involved, they receive every Notice of Intent that the Town files. They have not commented, and he has received every comment letter they sent. They usually are pretty good about getting it to us within 30 days. As he said before, they have spoken with Bill Walton from the Barnstable Cooperative Extension about the shellfish issues, and he gave his assurance that the containment boom will have the site percolate better than it does now. Now it’s paved, but we’re going to a more percolated site, and
the shellfish will be fine. The zoning issue has been settled. The Town does not have to apply for a relief. It’s the abutter whose structure is below the line. The argument was that because the structure was getting abutted upwards to the abutter’s line, the Town had to seek relief from the Zoning Board, but that’s not the case because the Town’s project is not a structure per se. So from the standpoint of the Wetlands Protection Act and the Mashpee By-law Chapter 172, it meets all the performance standards and he recommends approval.
Cass said that regarding the plan that would be more beneficial that Mr. Slavinsky was going to submit, it was suggested that the two parties meet within the following two weeks. She said we put this hearing off because we did not have the full knowledge of whether it was necessary to apply to the ZBA. Mr. Mills stated that this was a must-do deal. Then Len said there should be some discussion between the DPW and the abutters. She asked Mr. Slavinsky if he has met with them to discuss the plan. Mr. Slavinsky said he has not – he submitted the plan to Attorney Mills.
Steve said from the Regulations standpoint, if a project doesn’t meet the performance standards, yes, we have to look at the best alternative. However, this project meets the performance standards, so we don’t have to look at the best alternatives. It’s looking at the regulations and how they apply to this plan.
Len agreed and said we were just encouraging the applicant to talk with the abutter. He’s a citizen of Mashpee, and that’s all we were saying. It’s not anything we can tell them they have to do, we were just encouraging them to do.
Steve said the Wetlands Protection Act states that we are not here to look at alternatives; we’re here to measure this property only. If it didn’t meet the performance standards, then we would look to the best science available. However, it meets the performance standards. Len agreed.
Jack said he was very pleased that we resolved the technical issues and he asked for any comment on this application.
Mr. Slavinsky said he had one thing to say from an engineering standpoint regarding this project at the landward edge of these 2,500 lb. rocks. There’s going to be a 6 ft. excavation at a maximum of 1 ft. off the property, because it’s 19 ft. wide and the right-of-way is 20 ft. wide. He said he’s probably done 2,000 test holes on the Cape. It’s not when. It is going to cave in, and when it caves in, it’s going to affect Mr. Burtis’ property. That will happen, and he doesn’t know where they will go from there. There are no measures involved whatsoever that are going to hold that embankment up. Nothing has been shown on the plan; nothing has been talked about what will be done there. It would either have to be consolidated in clay or
have to be ledged. He doesn’t know when that will happen, but it will happen.
Len said, “Even the sand that’s on the abutting property? Would plastic sheet pile work?” Steve said we have a construction protocol put forth by the engineer. All the best construction practices are going to be practiced on this project. We know that it’s in an area that is highly scrutinized. We’re going to be on the site and make sure that all the environmental concerns are met. The engineer is going to be on site, DPW is going to be on site. There will be a constant party watching what is going on.
John Slavinsky said that they brought up that issue at the very first week and the construction protocol was discussed at the last meeting and nothing was mentioned about preventing a cave-in. It was mentioned that 65 cubic yards were going to be excavated, but nothing was mentioned about how the 6 1/2 ft. embankment was going to be kept from caving into the excavation. If it caves in, we will have a real problem there.
Steve asked if he is talking from an environmental standpoint or a property standpoint. Mr. Slavinsky said both. Steve said he doesn’t think this is so from the environmental standpoint. He thinks that even if that excavation caved in, with the containment booms that are going to be located on the waterside of the project there won’t be any sediment coming through the containment booms. So even if it does cave in and gets into the water, the booms will catch any sediment on the waterside. After the construction is done, they will address any embankment concerns as far as caving in or whatever the case may be.
Mr. Slavinsky said we have a property line, we have an embankment, we have Mr. Burtis’s property, and we have Riverside Road. If it caves in, we have a problem. Steve asked how that has any effect from an environmental standpoint. Mr. Slavinsky said any vegetation. Steve: “Grass?” Mr. Slavinsky: “Whatever is there, it’s different from grass.” Steve: “Rosa rugosa?” Mr. Slavinsky said the work limit is usually 5 ft. away. Steve said no, work limits are put in place so excavators don’t make a mistake and go over it into the resource area and buffer zone. Mr. Slavinsky said that’s one reason. The other reason is we usually have work limits that are a minimum of 5 ft. away. Steve restated that unless
Mr. Slavinsky can raise an environmental impact from that walkway, then there is no merit in this forum. As far as this project is concerned, they have covered all the bases with a construction work protocol. If that happens, it happens.
Len asked if the Building Inspector has approved this project. He asked if there is a structure on an adjacent property, and the work proposed on this property impacts that adjacent structure, that’s not a problem for us, it’s a problem for some other Board, right? The Building Inspector said the structure that’s on the neighbor’s property is an illegal structure and no permit will be issued. If they meet the setback requirements there will be no problem with that structure because it will be well away from the Town property.
Mark Burtis, 53 Nehoiden Road, said he thinks environmentally, it absolutely will have a future impact. They are going to use a type of hydraulic machine, and he doesn’t care what kind of boom is put out there, it’s not going to stop the hydraulic machine from reaching into the pockets to scratch back all the debris in the concrete that has been there for 30 years – a major concern. He still thinks this is a velocity zone, and that this is a fortified structure that cannot be constructed in a velocity zone, in spite of all the expert opinions. They are digging down into the tidal zone, their buckets are reaching beyond the mean high water (which is debatable on their plan on what the mean high water is) and they are going to scratch out a couple of feet down to the tidal zone. They’re going to do that with a hydraulic bucket, so it is absolutely an environmental issue. He absolutely does not support the opinion coming out of the Barnstable Extension program. The Division of
Marine Fisheries is going to be contacted by him. He talked to the Harbormaster who is of the understanding that this is above the high tide zone, which it is not. If you are to clean up the project to the extent needed, you’ll have to reach a hydraulic bucket, unless they get hired help to do it by hand, to remove these embedded pieces of concrete. He’s done this work for 30 years, he knows what it is.
Steve said he’s been assured by the consultants he’s met with that the containment booms are going to control any sediment from the hydraulic fluid that runs off the machine. We also have a boilerplate in our Order of Conditions that requires absorbent pads to be on site in case there is any type of gas leak or fluid leak out of the machine. The Town is going to live up to the Order of Conditions.
Mr. Burtis said his point is that they are extending beyond the high tide line, which has been misrepresented on their plan. He said, “If I came to you and told you I was going to construct a small foundation in the tidal zone, you would question me. Why aren’t you questioning me? That’s what it entails. This is a small foundation being dug into the shoreline.”
Steve said he has not heard from the Division of Marine Fisheries. They have a certain timeline to give input. He gets them for other projects. They have not given input on this project, that window is closed, so he’s not expecting comments from them. They would have sent him a letter saying this project is located within certain shellfish beds, like the one he got this morning, but he has not received a letter on this, so as far as he’s concerned, the Division of Marine Fisheries has no comment. He said Bill Walton, who is a very well respected agriculture specialist on the Cape, has assured him that a containment boom will make that area more permeable and provide a better situation than what’s there now.
Len asked if Mark is particularly concerned about a hydraulic leak from the bucket. The absorbent pad there is fine. As an extra precaution, you could take an absorbent boom and put that inside the containment boom. But you can’t clean up some oil that’s on the bucket other than putting out a boom or pad. Mr. Burtis said this is a dredging project. There’s got to be a Waterways certificate issued. You’re reaching a bucket in, digging below the tide zone. Steve said he talked with Chapter 91 and they said it’s fine. Ms. Laurent said she talked with them on the phone and they encouraged a local approval prior to filing the license. She said we’re in a catch 22. They want a local approval prior to filing for a Chapter 91 license. The only
work that they’re doing is removing the broken up concrete that is down there. Everything else is above mean high water.
Steve asked if work below mean high water could be done by hand. Ms. Laurent said those are large pieces of concrete and she’s not sure if anyone has gone down and taken a look at them. Steve said if the only way we can get it out is by machine, then it has to be done by machine. Ms. Laurent said this is no different than any other projects that use equipment down in the water, including a boatyard. They will take whatever precaution the Commission feels appropriate to prevent any sort of spill into the water. They will inspect the equipment. It’s a company that they use throughout the Town, not a fly-by-night operation. Steve restated that he’s going to hold the Town to the same standards that he holds every other applicant.
Lloyd asked Mr. Burtis if it’s hydraulic fuel that he’s worried about. He said no, this is a dredging project. What they are doing is going beyond the scope of what they plan states.
Mr. Burtis asked if it is a fortified structure or not. Steve said as far as Chapter 91 goes, they do their own permit. They ask us for the local review by the Conservation Commission and then they review it. So as far as the Mashpee By-laws and the Wetlands Protection Act that this Board enforces are concerned, it meets all the performance standards.
Motion made, seconded and unanimously carried to approve this NOI.
Cass left the meeting at this point.
7:20 p.m., Effie Mellos, 140 Captains Row (continued from 8/3/06). John Ryll represented the applicant and described the project. Steve recommended approval.
Motion made, seconded and unanimously carried to approve this NOI.
7:25 p.m., Robert Caggiula, 45 Hooppole Road (continued from 8/3/06). John Ryll represented the applicant. There was discussion regarding the request to transplant a 15 ft. holly tree. Michael Talbot was in the audience and advised that it could transplant well if given excellent management for at least three years. Steve said the tree is located near the water, and even if only a small machine would be used to do the digging, it could have a negative impact. Also, Natural Heritage has not responded, so Steve recommended a continuance.
Motion made, seconded and unanimously carried to grant a continuance to August 31st at 7:20 p.m., at the request of the applicant.
7:30 p.m., James DeVincent, 122 Old Brickyard Road (remove and reconstruct wall/stairway, foundation installation, and room construction in place of existing deck). Jack said the Board of Health has insufficient information on this filing.
Motion made, seconded and unanimously carried to grant a continuance to August 31st at 7:25 p.m., at the request of the applicant
7:35 p.m., John Pino, 43 Shoestring Bay Road (to construct a wooden walkway/stairway, landscaping, and vista pruning). John Slavinsky and Michael Talbot represented the applicant. Mr. Talbot described the proposed landscaping/vista pruning. Steve recommended approval.
Motion made, seconded and unanimously carried to approve this NOI.
Meeting adjourned at 8:25 p.m.
Respectfully submitted,
Frances Wise, Board Secretary
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