Conservation Commission
Minutes of October 21, 2010
Public Hearings
Mashpee Town Hall - Conference Room 1
Commissioners: Chairman Jack Fitzsimmons, V. Chairman Ralph Shaw, Mark Gurnee, Brad Sweet, Jeffrey Cross, Lloyd Allen, John Rogers
Staff Present: Drew McManus (Conservation Agent) and Kris Carpenter (Administrative Secretary)
Call Meeting To Order: 6:55 pm - Public Comment
Pre/Post Hearing Agenda:
- Minutes: Approval of the following minutes: Thursday, October 7, 2010 – Mr. Cross makes mention of one of the hearing items from October 7 and the fact that the plans were inadequate and it should not have been presented. Agent McManus concurs and suggests that at the next regulation subcommittee meeting they should clarify plan submittal requirements for landscaping versus tear down/rebuilds. Mr. Gurnee feels that contours should be shown on any plan for any Notice of Intent.
Motion made, seconded and unanimously carried to approve the minutes of October 7, 2010.
- Popponesset Island Bridge Re-Paving: Agent McManus explains that he had invited Michael Richardson in before the Board to describe a project that involves repaving the Popponesset Island Bridge. The Agent feels that projects such as this one where it takes place over a resource area rather than within a resource is questionable on whether or not the project needs permit and he felt that the Commissioner’s should decide on the procedure.
Michael Richardson explains that the Poppy Island residents had approached him to ask about repaving the bridge where it is breaking apart at both ends. Lawrence Lynch has already submitted an estimate to remove the layer of asphalt and replace with a new layer. There will be no grinding and they will place silt screening on both approaches. He feels that the bridge needs to be repaved and it will need to be done before the closing of the asphalt plant which they anticipate early December. Poppy Island and Bright Cove Village will be funding the project.
Agent McManus had originally recommended an RDA and still believes that it should be because even though it is of the same footprint, some of the paving is taking place off of the bridge which will bring it closer to the resource area. Mr. Gurnee is concerned about the grading on the bank and states that proper safeguards should be in place prior to the start. Mr. Sweet’s concern is the drainage and wonders if it will drain properly and not directly into the resource. He asks if it is possible to install a storm drain. Agent McManus asks Mr. Richardson for a detailed methodology.
Motion made, seconded and unanimously carried to recommend an RDA filing
HEARINGS
7:00 Paul Boucher (196 Monomoscoy Road) Rebuild dock/pier (same footprint) Cont’d to 12/30/10 @ 7:00pm - NOI
Applicable Resource Area: Salt Marsh, Land Under Ocean, Land Subject to Coastal Storm Flow
Applicant has requested a continuance as he is still working with an attorney for proof of ownership
Motion made, seconded and unanimously carried for a continuance until 12/30/10 at 7:00pm
7:03 Albert & Pauline Medice SE 43-2631 (46 Little Neck Lane) Remove & replace hardscaping - NOI
Resource Area: Coastal Bank
Jack Landers is representing the homeowner and explains that they would like to replace a timber retaining wall that is tied to a concrete apron, existing railroad tie steps and another area (points to plan) of railroad ties. The timbers are rotting due to age and they would like to replace with block. The timbers will be removed by hand. The apron is a concrete slab and will be broken with a jack hammer and then removed by hand. A small bobcat will be used in some areas. They will not be increasing the footprint and Mr. Landers explains that it is simply a repair of hardscaped areas that are old. They would like to grade a small area and put a storage container there. Agent McManus is very aware of the
conditions on this property but wanted to confirm with Mr. Landers that the area under the deck will remain a pervious material which Mr. Landers confirms.
Motion made, seconded and unanimously carried to Close and Issue
7:06 John Love (134 Summersea Road) Replace existing deck using same footprint - RDA
Resource Area: Buffer Zone to Coastal Bank/ Salt Marsh
Larry Tuft from Tufts Building is present for the owner and states that he is asking to remove the existing deck and rebuild it in the same footprint. They will be placing sonotubes where the existing supports are with an additional sonotube in the center.
Motion made, seconded and unanimously carried for a Negative Determination
7:09 Joseph Bousa (30 Spoondrift Way) Remove 10 pitch pines and prune others around wiring – RDA Cont’d to 6/2/11 @ 7:00pm
Resource Area: Buffer zone to coastal bank
Applicant has requested a continuance as he will not be back in town until next season.
Motion made, seconded and unanimously carried for a continuance until 06/02/2011 at 7:00pm
7:12 Stephen & Katherine Howe SE 43-2584 (76 Spoondrift Way) Vista pruning & tree trimming in perpetuity – AOC
Resource Area: Buffer Zone to Coastal Bank/ Salt Marsh
. Michael Talbot from Michael Talbot & Associates is present for the homeowner and explains that this project falls on two lots which one lot is not vegetated. With the two lots together, there is a total of approximately 200’ of frontage and they would like a 50’ vista pruning corridor. They would also like to prune back about 3’ from one of the pitch pines that is hanging over the deck. There are also several pitch pines and a couple of oaks that need to be “dead wooded”. Agent McManus would like Mr. Talbot to flag the trees that will be pruned. Mr. Gurnee mentions that the plan looks like it is more than 50’ but Mr. Talbot says it is slightly under 50’. Chairman Fitzsimmons
questions the reason why this project is not subject to a new NOI and Agent McManus informs him that the original NOI is still open and includes mitigation and landscaping. Mr. Talbot explains also at the time of the rebuild, they were not sure where the vista corridor would have been. The Chairman feels that according to his recollection on many instances, any hardscaping or landscaping outside of the house should be a separate a NOI and there should be a policy set forth so that they can be consistent. He also would like to state that when vista pruning was made a bylaw their idea was 25% of the property that was adjacent to the resource area rather than 25% based on a “right angle”. This plan is not measured along the edge of the resource area. Mr. Talbot had believed that it was the width of the corridor. Agent McManus asks Mr. Talbot for a revised vista corridor plan. Mr. Talbot still believes that you take the measurement
from the width and not the resource edge. Chairman Fitzsimmons states his dislike on the application and reiterates that it needs to follow regulations. He then asks Mr. Talbot if he would like to continue or if he would like it voted on this evening. Mr. Talbot asks for the guidelines and Agent McManus reads for the record the regulation for vista pruning. It states that the view corridor width may not alter more than 25% of the width of a naturally vegetated buffer strip as measured linearly from property line to property line along the edge of the wetland resource or 50’ in width as measured along the wetland edge, whichever is smaller. The bottom of the bank is the wetland resource area. Agent McManus states that he can only recommend a continuance with revised plans and instructs Mr. Talbot to show the vista corridor width length at the edge of the wetland.
Motion made, seconded and unanimously carried for a continuance until 11/04/2010 at 7:12pm
7:15 Joseph Onstott (9 Bight Circle) New Title V Septic System - RDA
Resource Area: Buffer Zone to Coastal Bank
Bill Weller from Weller Associates is representing the owner and he explains that the dwelling has a failed septic system. They will be utilizing the driveway area as it being the only option with the waterway in the back. They developed a smaller footprint with the final design of the system which will have a smaller impact on the driveway and surrounding area. They are looking for relief with the setback from the property line of the street where as they are only 5’ instead of 10’. They will need to slightly raise the driveway but will maintain the same type of driveway. The driveway actually has about 1.5” of asphalt under the stones. They are using a [Coldtec] Chamber which is plastic and will have less impact on the entire site. Mr. Gurnee asks if the whole system is under asphalt and Mr. Weller confirms that it is and that the driveway grade will be raised slightly resulting in the driveway island depth being smaller. Agent McManus reads the BOH comments
submitted.
Motion made, seconded and unanimously carried for a Negative Determination
7:18 Stendahl Condos SE 43-2622 (251 Shore Drive) Create/construct walking path, remove creosote timbers and replace with dry laid stone wall, removal of invasive plant species and replant/revegetated – NOI Cont’d to 11/4/10 @ 7:09pm
Resource Area: Inland Bank Leading to Deans Pond
The applicant requested a continuance to November 4, 2010 due to a scheduling conflict. Agent McManus would like to recommend a $100 continuance fee due to the fact that the contractor has requested several continuances because of his own scheduling conflict. He recommends charging a $100.00 continuance fee or the other option is that they can withdraw the application and start over.
Motion made, seconded and unanimously carried for a $100.00 continuance fee and to continue to 11/04/10 at 7:09
7:21 Warren Fields SE 43-2625 (12 Popponesset Island Rd.) Construct wooden patio (ATF) - NOI
Resource Area: Coastal Bank/Buffer to Coastal Bank
Jack Vaccaro from Vaccaro Environmental Consulting is the representative for the homeowner and explains that this is the second of two Notices of Intent that have been submitted in response to an Enforcement Order that was issued in June. This Notice of Intent is for a wooden patio that was installed in the rear of the residence. It is explained that the wooden patio is an informal structure that sort of looks like several pallets laying side-by-side on brick supports. The patio was placed where there was previously lawn and can be lifted and moved. Mr. Vaccaro feels that the owner clearly should have come in to seek
permitting before installing the structure and they are basically here in a defensive posture. Agent McManus agrees with Mr. Vaccaro’s assessment that it did not create a great deal of disturbance and its current existing state is not causing any adverse impact to the resource area. The real issue with this situation is permitting protocol and ignorance of the bylaws and regulations. The Agent states that the Enforcement Order was mailed to Mr. Fields and Ms. Casey shortly after May 10 which included both violations, the clearing of vegetation on the coastal bank and the existence of a deck that was unpermitted. Prior to the issuance of the Enforcement Order, he had received a call from a resident on Popponesset Island who alerted him that a deck was being built in the rear of the property at 12 Popponessett Island Rd, so he issued a Stop Work Order before the deck was finished. The Agent had spoken to two laborers at that time who were building
the deck to stop working on it which they did as he had checked the property again a couple of days later. In the meantime, Conservation had not heard from the owner/applicant after the Enforcement Order was sent out and which was preceded with two violation notices, both of which also went unanswered. About 1-1½ weeks later, the Agent had gone back to the site and the deck was completed. He explains that it is non compliance with an Enforcement Order, ignoring of a Stop Work Order and non-response to two violation notices. He states that based on the Conservation fine schedule and under Chapter 172 bylaw (which he reads for the record), the applicant can be fined daily and the deck is still there despite full knowledge that it should have been removed shortly after receiving all enforcement/violation orders or at least have some kind of contact with the department to discuss events moving forward. The deck, in its current location, is
approximately within 30’ of the coastal bank. In addition to not filing, it would be a necessary responsibility of the applicant to show compelling need for the deck. If it were to accumulate a daily fine, according to the fine schedule under Chapter 172 bylaw of $300/day for every day that the deck still exists, the total would be approximately $36,000 but the penalty for non-criminal offenses is a maximum of $25,000. The Agent states that it is up to the discretion of the Commission and that he would not have any issues with charging the maximum or they can look at a $100/day fine which totals approximately $13,300. He would like to mention that it is very important for the Commission to keep in mind what the precedent is in a case like this and how everyone else has to go through permitting procedures which involves plan submittal, coming before the Commission, and abiding by Orders of Conditions which this particular owner ignored. He sees no
excuse for ignoring a Stop Work Order and that the owner also knows full well that most of his property is within Conservation jurisdiction because he had previously gone through a septic upgrade and all the permitting that is involved with that. He states that clearly this situation is a violation of permitting protocols rather than environmental impact standpoint. Based on these points, the Agent feels that this issue deserves a daily penalty. Mr. Gurnee asks when the deck was completed which the Agent cannot specify the exact date but it was before the Enforcement Order which was May 10, 2010. The Chairman asks if the Order was sent registered mail which Agent McManus confirms that it was. The Chairman asks for comments from Mr. Vaccaro. Mr. Vaccaro agrees that it is an offensive series of events but would like to ask the Commission to be merciful in the penalty. He does not want this offense to be held at the same standard as the clearing of
the vegetation in which that fine was $300 and he understands that this situation is different but would argue that these circumstances are not as egregious as actual clearing of vegetation in a resource area. Agent McManus agrees that from an environmental standpoint he is right but from a filing/jurisdictional standpoint, this is much more egregious because he gave ample opportunity for Mr. Fields to come forth without starting a daily fine schedule. Mr. Allen suggests $100-$150/day so that will show some mercy but it will also show displeasure. Mr. Sweet suggests imposing the maximum $25,000 with the exception that if Mr. Fields was to come before the Commission then maybe he can negotiate to a lower fine. Mr. Allen would also like to recommend that the newspaper be alerted. Mr. Vaccaro would like to suggest attaching a specific number tonight and ask for a continuance to November 4th so that Mr. Fields can come before the Commission to
arrive at a final figure. Agent McManus agrees with Mr. Sweet’s suggestion and it should be part of the Commission’s approach of leniency to give him an opportunity to explain. The Agent states that there is no reason for continuance, though, or making a determination of the project as his recommendation would be to deny the application as it should have been removed months ago and now should be removed immediately. There has been no request for a waiver of requirement or demonstration of compelling need for the deck. Based on those two criteria’s, a denial should be in order. Mr. Sweet asks who will remove the deck as there has been no response from the owner up to this point so why would he respond now.
Motion made, seconded and unanimously carried to deny the Notice of Intent for the construction of a wooden patio.
Motion made, seconded and unanimously carried to impose a $25,000 fine with an agreement that Mr. Fields will have 30 days to come forward before the Commission to explain the situation of the patio.
7:24 Lewis Rubin SE 43-2629 (43 Tide Run) Install vinyl retaining wall and restore coastal bank with native plantings - NOI
Resource Area: Coastal Bank
Jack Vaccaro from Vaccaro Environmental Consulting is the representative for the homeowner and explains that this is a unique circumstance where the owners have been experiencing a little damage to the pool apron. The patio edge is starting to erode because the surface run off is towards the coastal bank which is very close to the apron. They would like to install some vinyl sheathing retaining wall along the pool edge to shore up that area of the property. The retaining wall edge will encroach upon the coastal bank for a length of about 55 sq.ft. It is greater than the 4:1 slop so it is a situation where the bank extends
up above the 100 year flood plane to the point where the slope becomes less than 4:1 and is basically at the edge of the existing plantings at the pool’s edge. In addition to the retaining wall, they are also proposing to install some plantings along the downward slope side of the wall. Mr. Vaccaro feels that by stabilizing the slope, it will help enhance the values of the wetland areas and coastal bank.
Agent McManus has been to the site a few times and feels there is no question that the patio area is in jeopardy of further damage due to the top of the coastal bank. The Agent mentions for clarification that 310 CMR 10.3 which is the state statute of coastal banks where coastal bank performance is essential for a sediment source storm damage protection while supplying sediment to coastal beaches and that coastal dunes shall not be armored or revetted in any way. This coastal bank does not meet that performance standard and it is not a sediment source therefore this condition does not apply and a retaining wall can be place on this coastal bank and still be in compliance with DEP’s regulations as well as Mashpee’s regulations.
Mr. Vaccaro would like to point out that Mark Burtis with Little Harbor will be contracted to do the work and he has indicated that he can install the wall by hand without any construction equipment. Mr. Cross asks why not use tie backs and Mr. Vaccaro explains that the height of the wall and the amount of material it is holding back, according to the opinion of the installer, is not necessary. Also, Mr. Vaccaro states that because of the pool, they would not be able to tie it back effectively.
John Slavinski from Cape & Islands Engineering explains that the problem is not the surface, it is below. He says that they are actually creating a dam which will stop the soil from traversing down the slope. Mr. Gurnee asks about weepholes and Mr. Slavinski replies that there are none but the vinyl is installed in individual pieces so water will seep through between each panel. He states that they are only filling up to 10 yards of fill behind the wall. Agent McManus states that the bank is being fortified with the backfill and plantings.
Motion made, seconded and unanimously carried to Close and Issue
7:27 Dawn Franklin SE 43-2628 (416 Monomoscoy Road) Construct pier, ramp and float - NOI
Resource Area: Salt Marsh/ Land Under Ocean/ LSCSF
Jack Vaccaro from Vaccaro Environmental Consulting is the representative for the homeowner and requests a continuance due to a recent conversation with the Shellfish Constable.
Motion made, seconded and unanimously carried for a continuance until 11/04/10 at 7:15pm
7:30 Mashpee DPW (Horseshoe Bend Way) Convert private road to town road; pave to a width of 14’ and install drainage systems – RDA
Resource Area: Buffer Zone to Isolated Land Subject To Flooding
Catherine Laurent, Director of DPW states that Horseshoe Bend Way is a private road that the residents petitioned for the town to take over. She explains currently that it is a dirt road with a significant topography and very narrow in width. They have also discovered that there are a few utility issues with the water and gas lines installed in the middle of the road. She also says that there is one area, as you enter Horseshoe Bend property from the Falmouth end, where there is a wetland area that the road is very close to. She would like propose installation of drainage up from the low point and also on the
opposite side as you go down the hill to try to capture the Stormwater before it reaches the low point in the wetland. Because of the high ground water, they are proposing a slightly different drainage system than what they normally use. They would like to install galley chambers in the road itself.
Agent McManus states that this is an isolated land subject to flooding and is very close to the road layout which right now is just unabated runoff going into the wetland. It has been slowly filling in over the years so any kind of adjustment to the drainage pattern will be a tremendous benefit. It is also a certified vernal pool and he is highly in favor of the change to the drainage pattern. Ms. Laurent would like to add the request for a couple of trees that may to be removed as part of the project. Agent McManus suggest possible mitigation to make up for the trees to be removed. Mr. Allen asks if they will install some sort of oil separator and Ms. Laurent responds not an oil separator specifically but they are proposing a
separate solid catch basin that will be tied to the galley chamber. This separate structure will capture any sediment and oil which will be cleaned on an annual basis. Mr. Cross asks if the gas line will be moved to the side. Ms. Laurent states that the gas company is not proposing to do any work on their main line but it is enclosed in concrete in that specific area. Mr. Gurnee is questioning the fact that a plan is not required for this project as it is near a certified vernal pool. Agent McManus mentions that this resource is currently being affected by the conditions of the road and these changes would vastly improve it. He believes that these types of projects where it has significant improvements should be moved along quickly. He suggest that Mr. Gurnee can make a motion if he would like to see a more detailed plan but Agent McManus feels that he has sufficient details on this project and it is all beneficial to the resource area. Chairman Fitzsimmons recommended
allowing this as an exception but as a general rule it seems a plan is required for RDA submittals. Mr. Gurnee would like to see a better plan for this project and asks for one from Ms. Laurent once they get started on it. Ms. Laurent states that she will provide something additional, possibly a surveyed plan of the road.
Motion made and seconded. ~In favor: Chairman Fitzsimmons, V. Chairman Shaw, Mr. Sweet, Mr. Cross, Mr. Allen and Mr. Rogers. ~Opposed: Mr. Gurnee. ~Request is approved for a Negative Determination
- Community Preservation Act Funding: Agent McManus has spoken to V. Chairman Shaw about tapping into more funds for the Pickerel Cove Conservation area. The deadline is November 1st so the Agent states that they will get everything in by then.
- Quashnet River Project: The Agent has been in touch with Doug Allen from Haley & Aldrich who has been working on the timeline to complete the feasibility study of the test hole-borings to make sure that the rerouting of the river is in the ideal location. The Agent is still waiting on a date for the shut down of the plant to see how the natural water flow takes over.
- Mashpee Land Stewardship Program: Agent McManus will be organizing another meeting as he has several projects that some volunteer help would come in handy. Ranging from trail projects to overall parcel cleanup days. He states that the Land Stewardship Program has slid off and the only excuse is that there just is not enough time without an assistant.
Mr. Cross comments that they really need to clarify standards for submittals and Mr. Sweet agrees and says that it should be procedural at first submittal at the office before it is scheduled to be heard.
Mr. Gurnee states that there have been a lot of inconsistencies lately as for example tonight with two projects that he felt the Commission was much more lenient than they normally would have been with any homeowner. Agent McManus clarifies to the Board that he asked this particular applicant to come before the Board because they are the final decision makers and he was unsure about what the filing procedure should be so his next option was to have them come in and present their project so that the Commission can make a determination of filing.
Motion made, seconded and unanimously carried to adjourn the meeting at 9:03 pm.
Respectfully submitted,
Kris Carpenter
Administrative Secretary
***All material submitted for hearings can be found on Conservation Flash Drive dated 7/1/10***
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