MASHPEE CONSERVATION COMMISSION
Minutes of August 3, 2006
Public Hearings
Mashpee Town Hall Meeting Room 1
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Commissioners present: ~Len Pinaud, Clerk, Lloyd Allen, John Rogers, Cass Costa, and Ralph Shaw.
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Staff present:~ Drew McManus, Assistant Agent, and Frances Wise, Board Secretary
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Ralph Shaw called the meeting to order at 6:55 p.m. He asked that the record show that John Rogers will be a voting member tonight.
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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 43-2283. Eric Peterson, 80 Punkhorn Point Road. Drew described the project and recommended approval.
Motion made, seconded and unanimously carried to approve RFAA SE 43-2283.
2. RFAA 43-2279. Elliot Bloom, 42 Fiddler Crab Lane. Drew described the project and recommended approval.
Motion made, seconded and unanimously carried to approve RFAA SE 43-2279.
3. Board vacancy. Ralph asked John Rogers if he would be willing to serve as a full member, and John said yes.
4. Approval of Bob Sherman’s changes to Regulation 16, Coastal Banks.
Motion made, seconded and unanimously carried to approve the modified Regulation 16, Coastal Banks.
5. Approval of minutes for 7/6/06.
Motion made, seconded and unanimously carried to approve the minutes for 7/6/06.
Hearing Agenda:
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7:00 p.m., Town of Mashpee, Riverside Road (continued from 7/6/06).~~~ Catherine Laurent, Department of Public Works, and Brian Jones, engineer, represented the applicant.~ Drew said that Steve and he met with Bill Walton and his assistant of the Barnstable County Cooperative Extension, to get his opinion to alleviate concerns about shellfish beds impact.~ Mr. Walton suggested the use of a boom (underwater siltation net) to capture sediments from the construction of the project, thus protecting the shellfish beds from sedimentation.
Mr. Jones described the plan and construction methodology including endurance of the structure and overall design. Ms. Laurent said it is their intention to have this structure as a fisherman’s right of way for the town.
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Ralph asked if we are satisfied that the project meets the performance standards of the Act. Drew said it absolutely does. Drew stated that the project meets both the state and local performance standards for coastal banks and Bordering Land Subject to Coastal Storm Flowage. ~~He reiterated that the design of the structure improves percolation and alleviates hazardous run-off with percolative substrate and plantings.
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Robert Mills, Attorney representing Jonathan Burtis, direct abutter to the project, said:
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1. They have a concern regarding the magnitude of the project.~ He has called the Department of Public Works and the Town Administrator suggesting they ought to meet not only with the Burtises, but with other abutters who are concerned with the magnitude of the project.~ That has not gone through.
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2. They don’t think this project properly lies within Conservation’s jurisdiction at the present time.~ The project has to go before the Board of Appeals regarding removing a portion of a wooden bulkhead as well as portions of the steps.~ Drew said we are only concerned with how the project pertains to the Massachusetts Wetlands Protection Act.~ Mr. Mills said the Conservation Commission cannot hear this proposal without going through the Zoning Board of Appeals first.~ He said the document was submitted for the purpose of removing a portion of the wooden bulkhead as suggested by the engineer, and also to remove one of the steps that the Town shows is encroaching into the Town right-of-way.~ So the Town is required, before coming to this Commission, to file with the Board of Appeals for a special permit
to remove the structures.
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Ms. Laurent said the Town protocol regards the stairs as a separate issue from the bulkhead for this project.~ The abutter has been put on notice by the Town based on their survey that there is an encroachment issue with the bulkhead. Ms. Laurent stated that if the section of bulkhead is not removed by the time the Town is ready to proceed with the project, that is something they will have to address as stated in the work protocol.~
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Drew said our purview is strictly the Wetlands Protection Act and that the Commission cannot hear disputes in regards to property rights and this legal concern has to be addressed elsewhere.~ Mr. Mills said he respectfully disagrees, because before this Commission has the authority to hear something, the application has to be filed with the Board of Appeals.
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Ms. Laurent said they had the property surveyed, and it states that what they are talking about extends into the Town right-of-way.~ What approval are you looking for from the Board of Appeals?
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John Slavinsky, retained by Jonathan Burtis, said he took their plan and filed it with the Conservation Commission as an RDA, saying ok, we’re going to do what was asked by Town Counsel and get the inspectors out of here.~ He got a call from the Building Department asking how much of the bulkhead he is removing.~ Mr. Slavinsky:~ “Enough to get out of the right-of-way.”~ Building Dept.:~ “Exactly how much?”~ Mr. Slavinsky: “ ½ inch.”~ Building Dept:~ “That’s part of the deck, isn’t it?”~ Mr. Slavinsky:~ “Yes, it is.~ It’s going to the Board of Appeals.” Mr. Slavinsky said he’s been before this Commission a lot of times for a lot of years.~ Before coming to this Commission, a filing before the Board of Appeals has to be
done.~ That’s the rule.~
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Ms. Laurent said the obligation is on the abutter to remove the structure.~ If at the time of construction the structure has not been removed, they would then have to address that.~ They are looking for approval of their structure that is located on Town property.~ Drew said that is what we’re focusing on.~
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Mr. Slavinsky said he agreed with that, but the filing form asks if all required permits and variances have been filed for, and obviously they checked yes.~ Maybe the Building Department didn’t look at it closely.~ The Building Dept. called Mr. Slavinsky back and said either they checked off his file for the permit but didn’t realize that they had not filed for it.~ Ralph asked Drew if this changed his recommendation, and Drew said no.
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Cass asked if there is an encroachment.~ Drew said yes.~ Len asked if the Building Department is saying that if the portion of the structure that’s on Town property is removed, it’s going to make some other structure unsound.~ Mr. Slavinsky said he thinks what they are getting at is exactly how much of the structure is going to be removed. Just to get it out of the right-of-way is the intent, that it might not meet the setbacks.~He said he went to the Board of Appeals and said, “Charlie, I filed for the same thing.”~
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Cass asked if the issue is that the DPW has to file with the Board of Appeals to get an encroachment off of the Town’s land.~ Mr. Slavinsky said they have to file with the Board of Appeals in order to conduct a hearing before Conservation.~
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Ms. Laurent said what they have said is if that portion of the bulkhead has not been removed at the time of the project’s construction, then they’ll have to take steps to remove it.~ Since the abutter has been put on notice for almost a year that there is an encroachment, by the time we’re ready to start construction, the portion of the structure should be removed.~~ Cass said, so you’re not saying to the abutter that he is going to remove the encroachment.~ Ms. Laurent:~ “We’re expecting that it will be removed by the abutter as requested almost a year ago.”
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Lloyd asked how much the encroachment is.~ Ms. Laurent:~ “It sounds like we have differing opinions.”~ Mr. Slavinsky: “We have no differing opinions whatsoever.”~ Ms. Laurent:~ “The property lines have been staked.~~ We haven’t received any notice about a dispute over the property line, so there’s a portion of the deck that extends into the right-of-way and then there are some supports that extend.more than ½”.~
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Mr. Slavinsky:~ “No, we may cut back ½” past the front using your plan, not a new plan, the exact same plan.~ Our plan says the bulkheads are to be removed.~ It doesn’t say it’s to be removed by Jonathan Burtis.~Ms. Laurent: “Just the timber bulkhead extension is to be partially removed.” Ralph: “So it’s a matter of procedure.”~
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Mr. Mills:~ “That’s one of our objections.~ The other objection is the magnitude of the project.~ We have proposed a much more environmentally friendly project than what’s been proposed by the Town.~ It’s also more cost efficient.~ Drew:~ “Again, we’re not here to hear about cost.~ The Town has spent a lot of time researching this project and the plan they have is sufficient, it meets the Commission’s concerns, and we cannot see a new plan when the hearing has to be continued.
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Mr. Mills:~ “You may not want to see it, but the Commission may want to see it.”~ Drew:~ “It’s not the purview of this Commission – it’s strictly environmental concerns.”
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Mr. Slavinsky said he believes it was the Chairman who said at the last meeting if you think you can do it better, tell us.~ He thinks they can do better.
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Cass said she thinks if we have a procedural issue, we can’t hear it, and it has to be filed.~ She recommended putting it off until this is squared away.~ The issue is about encroachment.~ She doesn’t know what the setbacks are, but it seems that the whole platform is encroaching. If there are setbacks, it’s got to be more than the setback of an inch. It’s right against the property line.
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Len said if removing the bulkhead is part of what’s requested of us here, and they haven’t filed then the hearing should be continued
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Ms. Laurent suggested they have approval tonight and strike the language “If the abutter does not remove that portion of the bulkhead that is on Town property before construction,” then we will file for an amended order.~ Cass:~ “Unfortunately, if we can’t hear other cases that haven’t filed with the appropriate Boards, we’re not supposed to hear it.~ If the issue is that it was supposed to be filed with the Board of Appeals, and it has not been filed with the Board of Appeals because your understanding was that Mr. Burtis was on notice that he has an encroachment, and Mr. Burtis doesn’t care that he has an encroachment, that’s his problem.~ The issue is that you must file with the Board of Appeals, and when it’s not filed with the Board of Appeals, we’re not
supposed to hear it.”
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Ms. Laurent said she’ll have to meet with the Building Inspector, and it would have been nice to have an agreement prior to the hearing.~ She said, “For the Town to remove an encroachment on Town property, we need to file with the Board of Appeals – that’s what I’m hearing from the attorney for the abutter.~ And that is because?”~~ Mr. Mills:~ “It’s under their jurisdiction – you have to get a special permit.”~ Ms. Laurent: “I’ll have to speak with the Building Inspector in Town Hall.”~~ Ralph:~ “That might be best.”~~ Cass:~ “If we voted and did something procedurally incorrect, we’d be starting at square one.”~
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Ms. Laurent asked if the Commission was satisfied with everything else having to do with the project, and therefore they could come back with an answer to this.~ She didn’t want her engineer to have to come to a meeting unless further issues are to be raised.~ Drew said he didn’t think it necessary for the engineer to attend again.~
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Len asked if it would be possible for the applicants to get together with the abutters to try to incorporate some of their suggestions that we haven’t heard yet.~ It sounds like there are other issues that we aren’t going to hear tonight that will come up the next time we have this hearing.
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Ms. Laurent:~ “The Town has worked for almost a year on this project, we’ve met with the Waterways Committee, Conservation Agent, and the Barnstable County Cooperative Extension and it seems to meet all the criteria.”~
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Len:~ “I’m just suggesting that the abutters are not happy with the design, and I think it’s incumbent upon the Town to at least hear what the abutters have to say, if you think it’s feasible to incorporate some design changes”.~~ Drew:~ “The Town has already spent considerable time and effort on these plans right here.~ Steve and I have agreed that these plans are pretty solid.”
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Len:~ “Have you heard what the abutters have to say?”~ Drew:~ “No.”~Len: “The reason we ask the audience to participate is so we can hear what their concerns are and incorporate them into the plans if feasible – that’s all I’m suggesting.”~~
Mark Burtis:~ “Concerning the shellfish study, I have a one-acre grant a couple hundred feet away.~ My question is why wasn’t the local constable consulted or the State Division of Marine Fisheries.~ I would think on a local issue, you would call Rick.”~ Ms. Laurent:~ “We did.~ I saw that you are paying tax on it.~ There is no shellfish in the immediate area from where we would work, and he was satisfied that we would take the proper construction measures.”~ Mr. Burtis:~ “Did he explain the sono tubes?”~ Ms. Laurent:~ “Yes.”~ Len:~ “He would normally send us a letter to that effect, right?”~
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Mr. Burtis:~ “Speaking to my father’s encroachment, one of the things we wanted removed is an old protection wall, which was a licensed structure at the time. This stuff is rotating and what you’re seeing on the ground there’s only one section that’s new.~ An RDA was filed with this Commission and approved.~ A very small section of a part of the cap happens to need repair.~ It was bad engineering.~I could change it with a skill saw without excavating anything.~ There’s also a Title V very close to this project, there is no work limit shown, there are a ton of subjects that haven’t been covered yet.”~
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Ms. Laurent:~ “That is not a subject of our project.~ It’s an entirely separate issue.~ The wall that you refer to now is not included as a part of this project.
Mr. Burtis:~ “The economics of our plan is not the subject, but it definitely is environmentally and should be heard before this Board.”
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Ralph:~ “The design conforms to the Act, that’s all we can deal with.”~ He suggested the two parties get together before the next hearing. He said, “If it’s a procedural thing, we have to respect that.”
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Motion made, seconded and unanimously carried to grant a continuance to August 17th at 7:15 p.m., at the request of the applicant.
7:05 p.m., Steven Peltznan, 194 Fells Pond Road (remove existing stairway and move to center of deck and add a small pathway from stairs to existing pathway). Drew said this hearing has been withdrawn at the request of the applicant.
7:10 p.m., Jeanne and Lewis Mantel, 298 Monomoscoy Road (include the landscape to the original plan). Mr. Mantel described the plan and Drew recommended approval.
Motion made, seconded and unanimously carried to approve this AOC.
7:15 p.m., Effie Mellos, 140 Captains Row (to perform landscaping and add a landing with stairs). Jack Landers-Cauley represented the applicant and described the plan. Ralph said that for a project as extensive as this one, we need a detailed landscaping plan that shows exactly what’s going to be done.
Motion made, seconded and unanimously carried to grant a continuation to August 17th at 7:20 p.m., at the request of the applicant.
7:20 p.m., Robert Caggiula, 45 Hooppole (to demolish and rebuild a new single family home with associated appurtenances). The Board of Health notified us that the information submitted is insufficient and the application is incomplete, so the hearing was continued.
Motion made, seconded and unanimously carried to grant a continuation to August 17th at 7:25 p.m., at the request of the applicant.
7:25 p.m., Edward Salant, 47 Birch Way (continued from 7/20/06). Michael Talbot, representing the applicant, showed the members photos of this property on Mashpee Pond. He said the property presently has primarily two ground covers – mowed turf and mowed mulch. The previous owner pretty much removed all of the understory vegetation on the property. There’s some erosion and it has no wildlife habitat value. The owner wants to build a deck on sono tubes which will prevent impact on the tree roots and provide a surface for his daughter to get married on, one of his primary interests. In exchange for a few hundred square feet of deck on a mulched surface with no vegetation to be removed except for one hazardous pitch pine which should be removed anyway, the calculations
for the mitigation planting are many times over what is required under the mitigation guidelines. He referred to the discussion at the last meeting about the proposed deck being 10 ft. closer to the resource area, and said the mitigation specifically allows the Commission the option to accept a very minor project like this which will have no significant adverse impact on the resource areas in exchange for something of far greater value, which is the removal of turf and the revegetation in the understory, which for the past ten years has been mulch.
Len said this being an RDA, what is our area of jurisdiction? Mr. Talbot pointed out where the 100 ft. line is and the areas that are jurisdictional. Len: “Why this isn’t a Notice of Intent?” Mr. Talbot: “Because a request for determination of applicability is a question to the Conservation Commission – i.e., is there any potential adverse impact that would require the filing of a Notice of Intent. Our stipulation, if you read the narrative part, is very clear that there is no impact. In fact everything is positive. All the principle work being done here is minor activity, mostly beneficial, and the deck itself has no impact. The idea of a Notice of Intent is to give you control over whatever is being done which can potentially do some
harm, but here there’s no harm that can be done that hasn’t already been done to the site.
Len: “Almost all the work you’ll be doing is in the resource area.” Mr. Talbot: “No, it’s within the buffer zone. The only resource areas here are edge of water and a tiny bit of BVW with a few red maples. There’s no inland bank here. It’s just buffer zone.” Len: “I don’t have a problem with what you’re doing here. I just want to make sure that the filing is correct.” Mr. Talbot: “Marty brought Steve and Drew out to the site and they all agreed that it was an RDA because no resource area would be negatively impacted and all the significant impacts are positive for the resource areas and the buffer zone.” Len: “So if we vote for a negative, that means it’s not
applicable. It’s counterintuitive to me to have to say that, because it’s within 50 ft. of the pond.” Mr. Talbot: “But the house is 35 ft. from the pond. Cass: “So that means the Commission never has to hear anything within the 100 ft.” Drew: “It’s a precedent issue.” Mr. Talbot: “I don’t see how it’s a precedent. RDA’s are issued all the time on issues that have no impact. We’ve allowed sheds, decks, all kinds of things have been allowed in these areas when there’s no impact.” Cass: “I don’t think the issue is impact, I think the issue is jurisdiction.” Mr. Talbot: “Of course it’s jurisdiction, but there’s no impact. That’s what determines whether or not a Notice of Intent is necessary, i.e., is there some reason that the Commission has to be sure that
whatever is done isn’t going to have an impact, like a foundation. The extent of the construction is putting in six little sono tubes. There’s no dredging, filling, or destruction of vegetation. It’s a ground level deck supported by sono tubes in order to protect tree roots that are underneath.
Ralph said he has trouble with the compelling reason to violate the buffer zone. Mr. Talbot: The mitigation regulation was set up specifically in circumstances like this to allow the Commission to get something of much greater value for much lesser value given up. We’ve allowed additions, foundations and decks.” “Ralph: Not incursions.” Mr. Talbot: “Absolutely, all these have been incursions. One was within 10 ft. of the buffer. That’s what the mitigation guide is set up for. The closer you go, the more you have to give back.”
Len: “But I think the question is whether it should be a Notice of Intent or an RDA.” Mr. Talbot: “What is a Notice of Intent going to protect? There’s no performance standard that this couldn’t possibly meet because right now it’s in a buffer zone that consists of mud and mulch. If you go to the site you’ll see the erosion. Everything that’s being done is to protect the buffer zone. Even the deck protects the tree roots. The whole point of an RDA is for a situation where there’s nothing that could potentially hurt the resource area. We don’t even need silt fencing. It’s just a platform on six or eight sono tubes. The rest of it will be on joists and support structures. The
narrative is in the filing, including why this can be given a negative determination.
Drew: “I agree that the mitigation goes beyond what’s called for – the site is certainly in desperate need of it. Mr. Talbot: “It’s a very minor impact project.” Len: “It may be a minor impact project, but you’re doing a lot of work in the buffer zone.” Mr. Talbot: “We’d be doing a lot of planting work in the buffer zone, and that’s good.” Len: “I’m not arguing on that.” Mr. Talbot “If we were vista pruning, it would almost be an RDA, because the only trees that are actually in a resource area are a couple of red maples sitting on those little spits. We’ve even done vista prunings as RDA’s when it’s only in the buffer zone.
That’s the critical thing – only in the buffer zone, not in the resource area itself.” Len: “I guess I don’t know the regs well enough to be able to determine what our authority is.”
Drew: “According to our regulations, this should be filed as a Notice of Intent just because of its proximity to the resource area. I understand there’s nothing there, it’s an up-grade.” Cass: I understand that the plan would be an enhancement, and the applicant wants do is absolutely something that should be done, but the issue is jurisdiction.” Mr. Talbot: “So you think he should go out and spend $5,000 on a complete survey for this little deck and those plantings? That’s what you’re asking if you ask for a Notice of Intent. It seems to me that would be a real imposition on him when he’s really trying to do a good thing. He could leave it just the way it is.”
Drew: “There are compelling reasons on both sides -- having to file with a Notice of Intent due to the proximity of the resource area, and on the other side we have a tremendous amount of mitigation and an upgrade of the property overall. Mr. Talbot: “And it couldn’t be more minor.”
Len: “If we give this a negative and we find out that the deck is tripled in size or they do something else, what’s our recourse?” Mr. Talbot: “An enforcement order. This is the plan of record. If we don’t do this, we’re in violation. An RDA doesn’t mean you’ve lost control. It means the project isn’t that big a deal.”
Len: “Is there a compelling need that we have to satisfy?” Drew: “When you’re encroaching that close to the resource area, yes, there has to be a compelling need. We’ve had filings for sheds, but not this close to a resource area.” Mr. Talbot: “A compelling reason is a subjective thing. In this case, the owner wants his daughter to be married on a platform instead of on mulch.” Ralph: “That’s irrelevant.”
Motion made, seconded and unanimously carried to approve this RDA.
7:30 p.m., Michael Margolis, 2 Great River Road (erect an 8’ x 12’ shed). Drew described the plan 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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