MASHPEE CONSERVATION COMMISSION
Minutes of January 19, 2006
Public Hearings
Mashpee Town Hall Meeting Room 3
Commissioners present: Jack Fitzsimmons, Chairman, Michael Talbot, Vice Chairman, Len Pinaud, Clerk, Lloyd Allen, Jeffrey Cross, and Ralph Shaw.
Staff present: Steven Solbo, Agent, Andrew McManus, Assistant 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. Approval of minutes for 12/15/05.
Motion made, seconded and unanimously carried to approve the minutes of 12/15/05.
2. Blue Ribbon Committee. Steve said John Miller stopped by a couple of days ago and asked if Conservation wanted to add anything, and when are we going to put the regulations in place. Steve said they are already in place, and we are always going through our regulations and looking at the best science available. What Steve distributed to the members at the last meeting was their last quarterly report. Steve said he gets calls sometimes from people inquiring about being an Associate Member, and we also advertise now and then.
New Business: none.
Hearing Agenda
7:00 p.m., Fred Blythe, 228 Wading Place Road (continued from 11/03/05). Mr. Blythe represented himself. He said he was before the Commission about a year ago when he had moved some rocks and put in posts with a chain and gate behind them. Steve said this a simple construction – three posts on each side and a five ft., ten-link gate. He has been advised by Town Counsel that this is a hearing for environmental impact only, not a forum for testimony on any other topics.
Michael said one of the interests that is clearly stated in Chapter 172 of the Mashpee Town By-laws is recreation, so anything related to the issue of recreation is legitimate for discussion.
Jack said the deed shows that there is a pathway that has been in existence for some years, and he understands that Town Counsel says it has to be verified that it’s on this property. This pathway would not fall under the category of an ancient way with rights of passage. Steve said he’s not aware of that, and that’s why Conservation can’t get involved in land issues. We are strictly here to monitor situations regarding environmental issues. Conservation doesn’t say anything about gates. There are two other access points and one more that is public, but we should not be getting into those aspects.
Michael said it’s the Commission’s job to review those issues as they relate to that, not Town Counsel’s job. We have been entrusted to protect the interests of the Town, which in this case includes recreation, so it is a legitimate discussion. Jack said we have to take advice from Town Counsel. Michael said we can take advice, but we are the ones to make the decision – that’s why we’re here.
Steve recommended a negative determination with the condition that we normally approve a fence that leaves enough room underneath for wildlife passage. While this does occur in a resource area, it has a minimal environmental impact.
Len clarified that 1) this is a gate, not a fence, on Mr. Blythe’s property, 2) it will allow wildlife passage, and 3) it is Steve’s opinion that it does not affect any resource area. Len said he doesn’t have any information on the ancient way issue, so other than that, he thinks the filing should be approved. Michael said it’s the only access point.
Mr. Blythe asked the definition of an ancient way. No one had a definition.
Steve said our permits state that they do not convey property rights, so if we issue a permit, it doesn’t mean that 1) anything will come of it, or 2) that it matters where it is. Jack said if Conservation approves it, someone can take it to court to establish it as an ancient way.
Bob Wooldridge, representative from the Mashpee Americans with Disability Act Committee, said the gate is an act of discrimination and this path is the only access for the disabled to this recreation area. Another factor is that this is a shellfish area. Steve said there is a public access way maintained by the Massachusetts Division of Fisheries and Wildlife and the Town. This access way is the only access for dredging.
Attorney Michael Princi, Wynn & Wynn, representing Nancy Caffyn et al, distributed to the members a copy of a Preliminary Injunction dated August 21, 2003, copy attached to these minutes. He said this order is still in effect today, so the Town as a party should not be working with Mr. Blythe to put up a barrier. He said that Mr. Blythe’s deed shows the right-of-way and is inconsistent with the plan he is submitting for this hearing that shows what he calls a pathway. This is an attempt to block a way to a public beach that the public has been using since 1949. He thinks the Commission should require the applicant to produce an engineered plan that is consistent with the Registry of Deeds.
Steve said this permit does not give the applicant the right to build a gate. It says the applicant does not have to file a Notice of Intent if we vote negative because 1) it occurs in the buffer zone, 2) it’s located within the resource area but in fact does not impact that resource area and 3) it’s a minimal impact project.
Michael said there is another option, and that’s an extension and it requires four votes. Another option is if we have enough questions on this regarding impacts and recreational values in the Town, and this is one of the most significant recreational areas in the Town, we can decide not to make a determination until these issues have been resolved.
Len said if there is Town access, that would be one thing. If there is State access, maybe the State would have some obligation to make sure there is some access for disabled people.
Michael said again that we have the option to say we won’t make a determination until these issues have been resolved.
Len said if the issues that need to be resolved are not within our jurisdiction, they are irrelevant.
Michael said his wife has devoted most of her career to the enforcement of the American Disabilities Act and it’s a significant issue for him. This is the only access point to the spit, but until all these issues are resolved, he would like to leave the issue alone. If this is blocked, there will be a lot more similar activity taking place, other issues like access if this is blocked and deemed legitimate, and rights that will be conveyed to other residents.
Len said they aren’t our issues though. Michael said they are in one sense, and that is we are residents of the Town. When he was asked to join the Conservation Commission, he didn’t chose to take a significant chunk of his time and energy in order to reduce the recreational interests in the Town, but to enhance them. Again, there is a third option, and that is not to decide. A lot of time will have to be put into this, a lot of other issues will have to be resolved like accessibility and property rights. He would like to see these things play out and when they are resolved, they can come back and if it’s good, then it’s a no brainer. It could be an extension or a continuation.
Jack: The same issues were brought up in 2003.
Michael: They still haven’t been resolved.
Jack: I thought the property issue had been resolved. Town Counsel said the deed shows that’s what he owns.
Michael: That’s not our purview. Our purview is the recreational interests.
Jack: Our purview is the impact.
Michael: Right, and one of those impacts is recreation, as clearly stated in Chapter 172. It’s not significant to the Wetlands Protection Act, but it is to the Mashpee By-law, and in that sense I believe we have an obligation to look out for that interest.
Jack: Actually, this is not a public beach. Part of the land is owned by the Audubon Society, the other part is owned by the Popponesset Beach Save the Bay Association. South Cape is a public beach and has access for disabled people.
Len: Even if we vote to give him a permit, and he executed it, and the court said he shouldn’t be doing it, he’s would be in trouble, it wouldn’t be us. So I would vote approval since he’s not impacting the resource area.
Motion was made and seconded. Jack, Len, Jeff and Ralph voted in favor. Michael and Lloyd voted against. The motion was carried.
7:05 p.m., Craig Ibbitson, 55 Pond Circle (continued from 1/5/06).
Motion was made, seconded and unanimously carried to grant a continuance to February 2nd at 7:10 p.m., at the request of the applicant.
7:10 p.m., Ripley Crowell, 54 Bayview Road (continued from 1/5/06). Stephen Kotowski, Webby Engineering, represented the applicant and described the plan. Steve said it meets all our performance standards, and he recommended approval.
Motion was made, seconded and unanimously carried to approve this NOI.
7:15 p.m., John Vidal, 252 Wheeler Road (construction of elevated stairway in the buffer zone to Ashumet Pond). Don Schall, ENSR, represented the applicant and described the project. Steve recommended approval.
Motion was made, seconded and unanimously carried to approve this NOI.
7:20 p.m., Mark Rogers, 87 Hooppole Road (continued from 1/5/06). Steve said National Heritage has become more involved with their own review process. This is an interesting situation because the house is 15 ft. from the BVW, right at the edge of the water. The house is being moved back about 150 ft. from the water. National Heritage was worried about the demolition of the house so close to the water. Steve may drive out there with Jack Vaccaro to meet with National Heritage to clarify this whole MESA process that has been clouding up a couple of recent hearings. Michael expressed an interest in accompanying Steve on that visit.
Motion was made, seconded and unanimously carried to grant a continuance to February 2nd at 7:00 p.m., at the request of the applicant.
7:25 p.m., New Seabury Tidewatch Condominium Owners, 90 and 94 Shore Drive West (continued from 1/5/06). Steve said this RDA has been withdrawn.
Motion was made, seconded and unanimously carried to accept the withdrawal of New Seabury Tidewatch Condominium Owners and to serve them a violation notice.
7:30 p.m., Joy Hibsher, 29 Pond Circle (construct a 4 ft. wide wooden walkway and license an existing floating seasonal dock). John Slavinsky, Cape & Islands Engineering, represented the applicant and described the plan. Steve said the Bertino’s abutters, had a violation for planting a lot of Japanese maples. National Heritage said these plantings might have an impact on the mussels, and they wanted them to do a mussels survey even though they were not putting in the dock. Mr. Slavinsky said they have filed with National Heritage, and National Heritage did not say the Bertinos had to do the mussel study once they took the dock out of the plan. However, it was the vegetation study that took weeks for them to finally agree that there is really nothing left there. Steve
requested some evidence that the dock is a preexisting one. To be classified as preexisting and be exempt from filing, the dock would have to have been put in prior to the Wetlands Protection Act.
Motion was made, seconded and unanimously carried to grant a continuance to February16th at 7:00 p.m., at the request of the applicant.
7:35 p.m., Francis Reavey, 42 Cayuga Avenue (construct a 4 ft. wide wheelchair ramp to John’s Pond). John Slavinsky represented the applicant and described the plan. Michael requested some revegetation in the bare areas.
Motion was made, seconded and unanimously carried to approve this NOI pending determination from National Heritage, and with the provision that the bare spots around the ramp will be vegetated.
7:40 p.m., John Donovan, 31 James Circle (place a seasonal ramp, pier and float in John’s Pond). Michael reclused himself from this hearing. John Slavinsky represented the applicant and described the plan. Steve said he has no problem with the plan, but he has a feeling that National Heritage may want to make some changes.
Motion was made, seconded and unanimously carried to grant a continuance to February 19th at 7:10 p.m., at the request of the applicant.
Meeting adjourned at 8:15 p.m.
Respectfully submitted,
Frances Wise, Board Secretary
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