Mashpee Conservation Commission
Minutes of March 5, 2009
Public Hearings
Mashpee Town Hall
Present: Chairman Jack Fitzsimmons, Cass Costa, John Rogers, Jeff Cross, Lloyd Allen, Ralph Shaw, Mark Gurney
Also Present: Conservation Agent-Drew McManus, Assistant Conservation Agent-Liz Leidhold
The meeting was called to order with a quorum by Chairman Fitzsimmons at 6:55 pm.
The Chair welcomed Mark Gurney who was appointed today as an Associate Member of the Conservation Commission. Mr. Gurney will not be voting this evening but can be involved with any discussion or ask any questions.
Pre/Post Hearing Agenda
1) Approval of Minutes from February 5, 2009
Motion made, seconded and unanimously carried to Approve the Minutes of February 5, 2009
2) Administrative Approval: SE 43-2506- 22 Cross Tree Way
Plans were distributed to the Commissioners. Under the original NOI, the applicant wished to extend the retaining wall and add a kitchen addition. Before discussing the details, Cass Costa recused herself. The homeowner, George Mandalos, addressed the Commission with his plans to relocate the bathroom originally located on the other side of the bedroom. The addition would be approximately the same size as the original plan, but slightly larger, and will be placed on two sono tubes. Agent McManus provided background on the project regarding the amended order that was filed for landscaping. The location of the proposed addition was originally slated for ornamental plantings. The addition should have been on the amended order, but the Commission could address the
plans for the ornamental plantings through another administrative approval. Since the original plan would have placed the addition in the deck area, it is now being relocated to a vegetated area, so the applicant will need to devise a mitigation plan.
Motion made, seconded and unanimously carried to Approve the Administrative Approval as proposed with the stipulation that another Administrative Approval be submitted to correct the landscaping plans to allow for mitigation.
3) Administrative Approval: SE 43-2512- 155 Popponessett Island Road
Dan Solien, Landscape Architect, addressed the Commission as a representative of the applicant. The plan was approved under an amended Order of Conditions, but had been asked to submit a detailed plan of the plantings and confirm the driveway material as permeable. The plantings are as originally proposed. Agent McManus learned more about the ecoblock technology, suggested as driveway material, at the MACC meeting. Agent McManus does not recommend the blocks because although the material is pervious, it requires significant maintenance to keep it permeable. The maintenance required several times each year, such as a street sweeper, loosens the hard packed material. Mr. Solien responded that the homeowners would follow the Commission’s lead, but would like more
research about the product. The applicant will plan to utilize gravel or shell for the driveway. Regarding plantings, ornamental plantings are proposed only for the planter and by the deck and patio. All other plantings will be native species. Mr. Cross asked about clearing the point to which Mr. Solien stated the original plan described the area of coastal grassland and coastal savannah, made up of native shrubs that will not exceed 3’-4’ and grasses.
Motion made, seconded and unanimously carried to Approve the Administrative Request of SE 43-2512 with the understanding that gravel or shell will be used for the driveway.
4) GIS Training for Stewardship Program
The training program, hosted by Tom Mayo, will take place on April 7 at 6pm. The Chair recommended that a Commissioner volunteer as a representative to the Land Stewardship Program.
5) Cranberry Bog RFPs
Three responses were received for Quashnet and Garner-Farley Bogs. One proposal is for both bogs while the other two responses are for Garner-Farley only. Agent McManus stated that the bid proposal can not be opened until a grower is selected. The Commission questioned how a proposal could be determined without knowing the bid, but Agent McManus had confirmed the information with the Town Managers office. Ms. Costa stated that the process allows for a review of the proposal that best meets the standards set in the RFP. The Commission still has the option to refuse a bid offer if it is not acceptable. The Commission would like further clarification regarding the bid. Agent McManus read Evaluation Section 8 Section B from the RFP regarding the Price Proposals to
clarify the process. The Commission decided to review the technical proposals submitted by each grower.
Quaker Run Cranberries-requesting for Garner-Farley only
Following review of the grower’s proposal, the Commission felt that the document suggests experience in bogs but does not identify the specific bogs. The document identifies use of Integrated Pest Management, typically organic farming. The Commission found that the Quaker Run proposal lacks detail and appears to be missing important information. The Commission would like more history, reports and the ability to contact the other towns in which the grower has his operation.
Fairland Farms/Cape Cod Organic- requesting for Garner-Farley only
Mr. Bottomly submitted the proposal and is aware that the bid is for a 10 year contract. The Commission found that this proposal contains more information than the first proposal.
Handy Bog Management-requesting for both Garner-Farley and Quashnet
This proposal represents the former operator of the bogs and is the only company bidding on both bogs. More information is included in the proposal but it is primarily historical referencing the previous management of the bogs and does not respond directly to the RFP. The proposal does not specifically state that the operation will be organic.
Agent McManus asked that the Commissioners review page 8 in the RFP reflecting the minimum evaluation criteria and technical questions and closely compare it to each of the proposals, taking notes as necessary. It was suggested that questions be noted and sent to each company for a response. Mr. Cross stated that Commissioners should have an opportunity to view each company’s bogs and Agent McManus added that Commissioners should conduct as much research as possible about the companies and their bogs. It was asked if the town has profited in the past from the town’s cranberry bogs to which Agent McManus responded that Quashnet was in a state of disrepair and would take approximately 3 years to get going. Garner-Farley has fewer issues so revenue may become available
sooner. Proposed growers responded positively to the 10 year contract compared to the original 3 year contract. Agent McManus also stated that it was possible to separate the bogs if the Commission so chooses to avoid having Garner-Farley become more like Quashnet. Commissioner Allen asked about AFCEE’s plans regarding berm repair, clean up operations and river realignment, to which Agent McManus stated that Mike Minor will create a report that will be tailored specifically to cranberry growers, using more non-technical terms. Overall, the Commissioners felt that the proposals should directly respond to the RFP narrative, allowing a better comparison, since the current proposals represent three totally different responses. The Commission would also like to know in advance what growers will need to get their operation up and running. The Commission will ask that all companies respond directly to the narrative.
Hearing Agenda
7:00 Frederick Blythe, NOI – 228 Wading Place Road (Continued from 9/4/08)
This application has been withdrawn. The original application filed in 1992 has been in litigation ever since, so an additional NOI was filed for the same pier, ramp and float. Litigation has ended, in favor of Mr. Blythe, and all appeals exhausted, so the original 1992 orders of condition were in affect as of December 2008. Orders had expired because of litigation with an abutter, so the applicant filed another NOI for the same project. This NOI is now not necessary. The owner will need to verify that his plans include the changed existing conditions since 1992 so that it is kept on file for the Order of Conditions.
7:03 Ceslovas Kiliulis, NOI – 188 and 192 Wheeler Road (After-the-Fact tree removal) (Continued from 2/5/09)
John Savello of Savello Associates represented the applicant. Mr. Savello stated that at the last hearing, when he presented the original mitigation plan, the Commission voted to allow mitigation of the two cut trees within the inland bank with shrubs rather than trees in an effort to reduce additional disturbance to the resource area. There were an additional 8 mature trees cut within the buffer zone to bank which is under Mashpee bylaw jurisdiction. The Conservation Commission voted to require the normal amount of mitigation (one to one) and another ½% due to the egregiousness of the violation. The applicant added the total inches of the 8 trees for a total of 74” caliper. The bylaw requirement would require 74-1” trees or 37-2” trees. The Commission
vote brings the number up to 55-2” trees or 110-1” trees. A detailed survey of the property was conducted to include the house and undisturbed woods, and included a 15’ buffer zone around the house, eliminating it as an area to plant the trees. Mr. Savello stated that it was not proper to plant 2” trees within that zone because the growing trees could create problems with the house or decks in the future. The remaining space available for plantings includes the existing lawn area outside the undisturbed area and the septic area, where they do not wish to plant. Mr. Savello stated that the 2” trees they intend to use are not container grown and are 12’ high. When planting the trees, Mr. Savello indicated that they would place them 12’ on center, stating that anything closer would reduce the survival rate resulting in a 6’ radius around each tree. Given the available space, the applicant proposes to
plant 14 trees, 7 red maples and 7 black oaks. To mitigate to the Commission’s request of 55 trees, the applicant would have to plant 40 more trees which they feel can not fit in the area, the planting scheme would be too tight. Using the 1” tree, and abiding by 8’ on center, would result in 110 plantings that would not fit in the area they have available. The applicant will transplant 21, 2 gallon shrubs of blueberry and sweet pepper bush on the bank itself and hopes that the plan is acceptable to the Commission.
Agent McManus asked for clarification of the total number of cut trees to which Mr. Savello responded that a total of 10 trees were cut including the 2 on the bank itself. Agent McManus is amenable to planting the shrubs on the bank to avoid additional disturbance. Regarding Mr. Savello’s recommendation of 12’ on center for 2” saplings, Agent McManus noted that the Mitigation Regulation 12 does not recommend spacing but suggests planting in clusters and groves as is found naturally. Agent McManus does not feel that decreasing the spacing will affect the survival rate since there is proof directly on the property of trees growing in clumps. Although 14 trees have been proposed, the Commission has requested 37 trees for mitigation. Agent McManus would like to seek another opinion
regarding spacing for 2” saplings because he feels that 12’ is too broad. Mr. Savello disagreed and stated that his role was to propose a mitigation plan that would work well for the size of the saplings. The Chair agreed with the Agent regarding an independent assessment and stated that the caliper size was increased because the cutting was so egregious. The Chair questioned use of 3” versus 2” to which the Agent responded the size would reduce the number of plantings but that it was up to the Commissioners. Agent McManus continued that the applicant seemed to be struggling to find space on the property for the mitigation requested by the Commission. Agent McManus recommends that the Commission consider adhering to the mitigation requirements in the Mashpee regulations rather than the formula of 1 ½ times that number.. Agent McManus also questioned the rationale of preserving the lawn from consideration for
mitigation but Mr. Savello responded that all existing lawn will be used for mitigation except for the 15’ buffer and area around the septic. Mr. Savello continued that the owner is making the effort to do the right thing. Agent McManus also questioned the necessity of the 15’ buffer in areas such as around the driveway, and feels that the buffer is too generous. Agent McManus noted that the buffer was created in an area where trees previously existed, and trees were cut when they could have been pruned. Ms. Costa requested clarification about the property noting that it was two separate parcels and that the un-permitted tree removal occurred on the property with the house and the mitigation is occurring on the adjacent lot. The Commission is unclear as to whether or not the lots are joined. Ms. Costa also pointed out that it is advantageous for the applicant to be allowed to plant shrubs in the resource area (bank) rather than
replace the 2 trees which were cut down. Ms. Costa expressed concern that the mitigation is occurring on the adjoining lot where only 3 trees were removed compared to the 7 trees removed from the house lot. Ms. Costa suggested the possibility of more shrubs on the bank and trees above the bank on the left side, due to the egregious nature of the violation. Mr. Allen recommended the planting of a grove of fast growing red maples. Mr. Savello responded that his preference was to plant a smaller diameter sapling but that he can not meet the resulting numbers requested by the Commission, and selected a larger diameter in an effort to meet the diameter bylaw. He has also made an effort to replace the species that were cut. Mr. Gurney asked the Commission if the applicant would have been allowed to remove the trees before-the-fact in a vista pruning request to which Agent McManus responded that no tree in excess of 5” caliper can be removed
according to the bylaws. Agent McManus concluded that his preference would be that the property accommodate more plantings and have a certified arborist assess the property to determine how much mitigation would be allowable, as well as assess the necessity of the 15’ proposed buffer. The Chair also expressed concern about the proposal as it exists and suggested that the Conservation Agent work with the applicant to applicant to develop a mutually beneficial proposal. The Chair asked if the applicant wishes to continue to which Mr. Savello asked to speak briefly with the applicant. Mr. Savello returned and requested that a vote be taken to close the hearing.
Motion made, seconded and unanimously carried to Deny the Notice of Intent.
7:06 Gregory and Elizabeth Stento, NOI – 155 Popponesset Island Road (Pier/ramp/floating dock/replace existing dock) (Continued from 2/5/09)
Jeff Ryther of BSS Design addressed the Commission regarding the application. At present, the home is under construction. The applicant wishes to replace a licensed dock, ramp and float that are located close to the channel, relocating it to Popponessett Creek where there is more space. Mr. Ryther distributed a GIS handout to the Commissioners to indicate that the dock will be located on the widest part of the creek. This hearing was previously continued in an effort to work closely with the Harbormaster to ensure the best situation for navigation purposes. The applicant has reduced the size of the dock from 108’ to 59’, the boat will still be located in 3’ of water at mean low tide, and a letter of approval has been submitted from the Harbormaster. The Shellfish
Warden has also submitted a letter of support. Mr. Ryther pointed out that the dock is shorter than the neighbor’s dock and that the float location will be in just over 3’ of water. The Harbormaster suggested his preference for the proposed dock design rather than a “T” dock design. The elevation of the dock is 7.3, stepping down to 5.5 and provides the 5’ of lateral access at mean high water mark and sunlight to pass through to the salt marsh, exceeding the 5’ rule. Additionally, 50% of open area on the decking above the marsh and bank will allow sunlight access and then transition to standard decking material, using 1”x6” planks. Mr. Ryther also noted that the applicant will continue to use the current dock location for this summer because a new license will not be available for 8 months. Chapter 91 will receive the new plan after the Conservation Commission’s ruling but the DEP has a copy
of the plan. Agent McManus questioned what will happen to the existing pier, ramp and float to which Mr. Ryther responded that the existing float would be moved to the new location. Mr. Ryther added that the existing ramp and metal framework will be removed. Agent McManus noted that the DEP guidelines suggest a maximum width of 4’ for the elevated walkway and pier but the plan lists it as 5’. Mr. Ryther responded that 5’ of decking exists but the usable area is 4’, but they can reduce the decking. Agent McManus quoted the small dock DEP guideline on dock width. The Chair requested that the plan for the dock read 4’x46’. Mr. Allen questioned the method to be used for installing the pilings to which Mr. Ryther indicated the intent to place by jet and hammer them in. The Commission discussed various methods and pointed out that the bylaws call for mechanical driving with the intent to reduce the amount
of disturbance. Mr. Cross wants to ensure that the bylaws are enforced regarding installation of the pilings. Mr. Cross also expressed concern about the narrowness of the channel near the existing dock. Ms. Costa questioned the extension of the property line into the water and why it is perpendicular to the bank. Mr. Ryther suggested that the property line does not extend into water because it is state property, requiring a license. Agent McManus asked for the setback distance from the neighboring dock to which Mr. Ryther responded was 115’. The Commission expressed concern about the property line extending into the water and whether or not legal counsel should be sought and Agent McManus responded that the Commission’s consideration should be regarding the project’s performance standards. The Chair agrees that it has nothing to do with the performance standards but ownership issues and whether or not the dock is on someone else’s entitlement. Assistant Agent Leidhold
recommended the Commission consider a Close and Issue pending additional information regarding the property line along with the Chapter 91 license outcome.
Motion made, seconded and unanimously carried to Close and Issue pending clarification of the dock location.
7:09 John Mates, NOI – 53 Hooppole Road (After-the-Fact season dock) (Continued from 2/5/09)
Motion made, seconded and unanimously carried for a Continuance until 5/28/09 at 7:00 p.m. at the request of the applicant.
7:12 Stephen and Kathryn Marshak, NOI – 51 Timberlane Drive (Replacing existing 5’x18’ float with new 5’x20’ fixed platform, reconstruction of access steps, installation of a 4’x14’ ramp and an 8’x18’ float)
Motion made, seconded and unanimously carried for a Continuance until 4/2/09 at 7:00 p.m. at the request of the applicant.
7:15 Daniel Goulet, RDA – 213 Monomoscoy Road (After-the-Fact removal of 3 trees and wishes to prune remaining trees in close proximity to the house)
Steve Goulet addressed the Commission as a representative for the applicant. Agent McManus met with the applicant because he had inquired about the removal of trees. Trees had been flagged, possibly located in Flood Zone A so the Agent encouraged the homeowner to investigate whether or not the property falls within the jurisdiction of the Conservation Commission. While onsite with the homeowner, the Agent made a passing comment regarding a beetle damaged pitch pine that could pose a threat to the home, and suggested that onsite permission could be granted for removal provided a letter is submitted for approval. Since that time, 3 trees have been cut down without a permit, including the pitch pine. The Agent spoke with Mike Hope of Ace Arboricultural the company that cut down the trees.
Since the snow covers the stumps, Agent McManus is unable to identify the diameter of the trees removed in order to determine appropriate mitigation. The vista pruning request was in response to branches overhanging the deck and roof. Agent McManus recommends a continuance. Mr. Goulet stated that the removal of the trees was a misunderstanding between the company and their crew.
Motion made, seconded and unanimously carried for a Continuance until 3/19/09 at 7:33 pm at the request of the applicant.
7:18 Save Popponesset Bay, Inc., NOI – 0 Wading Place Road (Install sand drift fences along Popponesset Spit Barrieer Beach to maintain and create dunes to prevent the overwash of storm surge and the deposit of sands and planting of indigenous vegetation)
Motion made, seconded and unanimously carried for a Continuance until 3/19/09 at 7:15 pm at the request of the applicant.
7:21 Richard Proulx, Trustee, NOI – 29 Hamblin Road (Construct and maintain a pool with bluestone apron, stone wall and relocate septic pump and shed and mitigation plantings)
John Slavinsky of Cape & Islands Engineering represented the applicant regarding the construction of a swimming pool. Mr. Slavinsky plotted the pool on the building plans submitted in 1995. Mario Degregario flagged the wetlands but discovered that they ran 3’-8’ inland more than the original plan, which also didn’t include the coastal bank which currently exists on the property. Additionally, the septic system contains a denitrification system and a pump chamber with a leeching field located on another lot. The pump chamber can be moved but there is not enough room to move the denitrification system. By making the changes, the pool is moved further from the house extending the original work limit into the coastal bank, which is a coastal bank because it is located in the flood zone. However, no work will be done on the coastal bank. The pool itself is a wading pool. Mr. Slavinsky is requesting a 36’ variance from the Zoning Board of Appeals in order to install the pool. Mr.
Slavinsky informed the applicants that mitigation will be required due to the property’s proximity to the coastal bank and coastal wetlands. Mike Talbott of Mike Talbott Associates has drafted a landscaping plan. Mr. Talbott plans to extend the retaining wall to provide a flat area for the pool. The land is poorly vegetated but very stable. Locations along the wall have very limited vegetation so Mr. Talbott has included an extensive list to diversify and properly vegetate the area. Mr. Talbott also noted that the buffer zone and coastal bank are very densely vegetated. Assistant Agent Leidhold referenced the 11x17 plan (43-1500) noting that the house has had several filings, but that this one does not have a Certificate of Compliance, which will be needed. It was noted that the natural buffer was observed to be in good shape. Assistant Agent Leidhold also stated that no permit could be located for the shed. Mr. Slavinsky
stated that the shed has been included because it needs to be relocated, and is unaware that the shed is un-permitted. During review of the wetland flagging, Assistant Agent Leidhold discovered at the end of the flag line that #8 does not appear on the plan. Additionally, it was discovered that staking on the coastal bank, in a particular location, was downslope of the bank. Upon discussion with the consultants, it was determined that it was the area slated for vegetation. The Agents recommend the pool size and apron size be reduced and the wall moved. Mr. Slavinsky checked with the Building Department but a 3’ apron is required. Mr. Slavinsky indicated that space is limited because the septic components need to be relocated and the applicant is unwilling to take apart the patio or wall. The kidney shaped pool 16’x11’ total of 28’ was an effort to reduce its size. The wall is a total of 14” tall and its
purpose is to prevent material from going into the coastal bank. Assistant Agent Leidhold requested that the pool be moved away from the bank, to which Mr. Slavinsky responded the closest point is 1’ from the bank. Assistant Agent Leidhold stated that was due to the current staking to which Mr. Slavinsky responded the survey was accurate. Agent Leidhold suggested that stake #2 should be reviewed with the survey crew for accuracy. Additionally, concern was expressed regarding the intent to replace native plantings with additional plantings when there are no invasive species. Proposed mitigation should be located by the hardscaping. The Commission and consultants discussed the missing Certificate of Compliance and the necessity to resolve the issue. Ms. Costa identified the main issue as staking, and would need clarification before moving forward. Mr. Allen suggested that the applicant shrink both the wall and the pool.
Mr. Brako, an abutter, expressed concern about the pool being located within site of his front yard. He further stated that a petition was submitted to the Commission. Richard Moore submitted a letter to the file expressing such concerns as a large impervious surface from the patio, pool water draining and water quality issues, shared septic, disagreement as end of way road and lighting concerns. The letter also suggested ACEC being a concern to which Mr. Slavinsky stated that it did not exist on the property and was an error on the original plan and Mr. Talbott clarified that the pool will be saline only. Letters supporting the application were also submitted to the file. Mr. Moore stated that the home was built on a narrow lot in 1995 with many conditions placed on it. Mr. Moore
additionally stated that 16’x28’ pool and 5’ deep seems substantial for a wading pool. Ms. Costa reiterated that before making a decision the issues of staking and the COC must be resolved. The Chair suggested that the apron should be reduced and the pool moved closer to the home.
Motion made, seconded and unanimously carried for a Continuance until 3/19/09 at 7:36 at the request of the applicant.
7:24 James Shalek, NOI – 127 Popponessett Island Road (Demolish and reconstruct new single family home with associated appurtenances, stone driveway, utilities, Title V septic system, stone patio, saline pool and phragmites eradication)
Motion made, seconded and unanimously carried for a Continuance until 3/19/09 at 7:12 at the request of the applicant.
Motion made, seconded and unanimously carried to adjourn at 9:30 pm.
Respectfully submitted,
Jennifer M. Clifford
Board Secretary
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