Conservation Commission
Minutes of June 30, 2011
Public Hearings
Mashpee Town Hall - Conference Room 1
Commissioners: Chairman John Fitzsimmons, Vice Chairman Ralph Shaw, John Rogers, Brad Sweet, Lloyd Allen, Mark Gurnee
Staff Present: Drew McManus (Conservation Agent) and Kris Carpenter (Administrative Secretary)
Call Meeting To Order: 6:55 pm - No Public Comment
Pre/Post Hearing Agenda:
- Approval of the following minutes: March 24, 2011 Regular & Executive sessions; May 5, 2011, May 19, 2011
Motion made, seconded and unanimously carried to approve the minutes of March 24, 2011 Regular & Executive sessions, May 5, 2011, May 19, 2011
- Letter of Interest: Conservation Commission – Patricia Jalowy has submitted a letter of interest to become a full time Board member. Town Counsel has stated that there will not be a conflict of interest since Ms. Jalowy can recuse herself of any projects being presented before the Board by her spouse. Mr. Sweet questions if Mrs. Jalowy should start as an Associate initially. Agent McManus states that the Commission has a vacancy for a full time commissioner that needs to be filled as quickly as possible. He has recommended that Ms. Jalowy come in for the next meeting for introductions.
HEARINGS
7:00 Lorraine Anderson (184 Waterway) Remove one damaged pitch pine from neighboring property (190 Waterway) - RDA
Resource Area: Buffer Zone to Coastal Bank
Material submitted: Plot Plan (hand marked) 6/8/11 L. Anderson
Ms. Anderson would like to remove a tree that is in the center of her property and her neighbor’s. The tree is damaged and is a hazard. Agent McManus confirms that the tree has turpentine beetle damage.
Motion made, seconded and unanimously carried for a Negative Determination
7:03 Dean Neubert (11 Hamblin Road) Replace existing floating dock (AFT) - RDA
Resource Area: Land Under Ocean/ ACEC
Material submitted: Interim Approval – Existing Pier, Piles & Seawall 10/19/94 (handdrawn) Replace End Float 6/8/11 Owner
Mr. Neubert explains that he has replaced his old float with a new float because it was rotting and the floats were deteriorating. The floats are encapsulated foam. Agent McManus informs Mr. Neubert that plans on file from 1991 show that the dock, pier, float is a different size than what is on this plan and he will need to contact Chapter 91. The Agent states that the float is in an ACEC designated area and Chapter 91 does not allow pile supported floats within ACEC. The Agent does agree that the structure is still “grandfathered” because it has been there for quite some time but it will be required that Mr. Neubert will still have to work with Chapter 91 to clear up the changes that have occurred since 1994 and to also
address the anchoring system.
Motion made, seconded and unanimously carried for a Negative Determination pending Chapter 91 decisions
7:06 Richard Cook SE 43-2662 - Aquaculture Project in Popponesset Bay with MIP – NOI Cont’d from 6/16/11
Resource Area: Land Under Ocean/ Land Containing Shellfish / Velocity Zone
Material submitted: Plan Showing Area of Shellfish Gran 5/10/11 Coastal Engineering / Residential Letters / Attorney Letters
Richard Cook states that he has spoken with Coastal Engineering for a revised plan which addresses the concerns of the Board regarding the anchoring system. The new narrative explains in detail what the plans show. Agent McManus states that there were many issues raised at the last hearing ranging from zoning concerns to official determination of jurisdiction from Natural Heritage Endangered Species as well as the pending litigation against the Board of Selectman. A letter with a final decision from Natural Heritage Endangered Species dated June 28, 2011 has been submitted. Agent McManus reads the letter for the record which states that the project does not occur within the estimated or priority habitat and therefore does not
require permitting review from them. There is also a letter submitted from Charles Maintanis, Town of Mashpee Acting Building/Zoning Inspector, in which the Agent also reads for the record. Mr. Maintanis’ letter states that he does not consider the aquaculture cages to be structures and that the project area lies outside of zoning jurisdiction of Mashpee (Commonwealth owned land under ocean) Agent McManus states that there is also a letter from Town Counsel and proceeds to read the letter as well for the record. The letter states that even though the Board of Selectmen had issued a license to Mr. Cook and that it has been appealed; it does not preclude the Conservation Commission from acting upon the Notice of Intent in accordance with the provisions of the Wetland Protection Act (310 CMR 10.00 & the Chapter 172 Wetland By-law). Agent McManus reads Chapter 172-5 Section E from the local bylaw which states that all applicable permits and
licenses must be “applied for” in order for any permit application to be deemed complete. Also received was a letter from Marine Fisheries who conducted a shellfish survey and determined that the proposed area for the aquaculture farm is not land containing shellfish and was suitable for the project. Agent McManus confirms that there has since been substantial information submitted and the plans have been revised to show strong anchoring systems. Therefore; all requirements have been met for this Notice of Intent. Mr. Cook has assured the Agent that recreational activities have been taken into consideration and that people can canoe/kayak over the area. The Agent reads Chapter 172; Regulation 24 which defines recreational values that include canoeing, kayaking, swimming, boating and aquaculture/agricultural activities, among other activities.
Mr. Gurnee is concerned about water born debris in a velocity zone and Agent McManus states that it can be addressed in the Order of Conditions. Mr. Gurnee also would like to confirm that the cages will always be under water. Mr. Cook assures him that they will be below water when factoring in conditions. The cages will be stacked less in shallower portions of the grant area. Agent McManus also adds that there must be allowances made for adjustments depending on extreme tides. Mr. Cook states that they applied for the grant for the maximum allowable cages which was 3000 but would probably not be able to maintain all the cages at that quantity as there might not be enough water column to run through them and feed them properly. Mr. Gurnee asks what kind of maintenance the project entails and Mr. Cook responds that typically they will be attended to the cages approximately four hours a day / five days a week by one or two people. Over winter will require almost no
maintenance. Mr. Sweet asks if Mr. Cook will be able to handle the cages weight and Mr. Cook responds that if any of the cages become too heavy then he may use a piece of equipment that is electric powered from the outboard motor (at idle). He also states that it is a very quiet system. Chairman Fitzsimmons inquires about powered boats and Mr. Cook states that if it is a very low tide than he recommends avoiding the area which has marker buoys on the perimeter of the site. Agent McManus points out that the grant area also encompasses a no wake zone for motor boats due to the shallowness of the water. Motor boats can draft up to 2 feet of water in some cases thus it would not be advisable to use this area for recreational boating, tubing, skiing, etc regardless of the presence of an aquaculture farm. Chairman Fitzsimmons also asks of the business itself if something were to happen and the Agent responds that it can be conditioned into the Orders
that if the project ceases to operate than Mr. Cook will be 100% responsible for removing all equipment which can be conditioned and enforced.
Mr. York, Shellfish Constable, states that the Harbormaster has approved the placement of the buoy markers. Mr. York also states that the Waterway Commission regulations require removal of the markers within 90 days if the license is terminated. Mr. Sweet asks if it makes sense to phase the project in maybe a 1/3 at a time to see how everything progresses and if there are any obstacles to the recreation factor. Mr. Cook responds that he would prefer not to phase it in and Agent McManus says that they can include a statement in the Conditions such as “at no time shall the cages be an impediment to canoe/kayak access”. Also, the Agent says if there are any complaints than he will contact Mr. Cook to address them quickly and
properly.
Chairman Fitzsimmons reads letters that were submitted from abutters for the record. [All letters can be found in file # 043-2662 in the Mashpee Conservation Office]
Mr. Gurnee states that he was hearing comments about views in the letters and from his understanding, it will be completely underwater.
Chairman Fitzsimmons asks the audience not to repeat each other in regards to commentary
Robyn Glazer, an attorney who represents Robert & Jonathon Kraft, states that she is aggravated by the process. She feels that the residents’ rights are being affected and that Agent McManus does not have the right to decide what is reasonable. Chairman Fitzsimmons states that Ms. Glazer should read the Mashpee bylaws and the Agent has the authority to determine what is reasonable. Ms. Glazer continues saying that she feels that Agent McManus does not have the right to act as Mr. Cook’s lawyer and advocate for him. The Chairman states that the Agent was analyzing Mr. Cook’s proposal in accordance with the state and local wetland protection acts. Agent McManus informs Ms. Glazer that it was a point-by-point
clarification as to the relevance of Attorney Wall’s assertions in regards to the applicability of such statements to the local wetland by-law as well as the commission’s authority to move forward with this application review. Ms. Glazer states that the statements should have come from the applicant. She feels that this project should not be allowed because it affects all the surrounding residents and interferes with swimming recreation and she also states that everyone is being inconvenienced in the area except for Mr. Cook and the Commission. Ms. Glazer states that there are a number of places in Mashpee that this project could take place and she feels that a major business enterprise should not take place in this area.
Jacob Shamash, 64 Popponesset Island Road feels that the value of the properties will go down and the revenue of the town from the taxes will go down so therefore, the town will be affected. Chairman Fitzsimmons states that the commission’s concern is of environmental impact and that the Board of Selectman have already addressed the home value issues.
William Sander, 44 Popponesset Island Road, addresses Mr. Cook and asks him how far away the project will be; from the Spit, the shore or in the middle. Mr. Cook responds that it will start 30’ from the shore. Mr. Sander asks if he can be shown on the map the exact spot. Mr. Sander’s concern is the boats that come through the canal at night. He asks if there will be poles marking the area. He is answered that there will be buoys/markers. Mr. Sander is concerned about safety because most of the boats at night speed through the canals.
Tom Jalowy, Jalowy Landscape, is concerned with safety and the height of the cages. He asks what would happen if a kayaker hits and tumbles and becomes injured because of the cages. Mr. Jalowy is curious as to who will be liable. Agent McManus asks Mr. York if liability was discussed during the waterways commission review of the project and Mr. York responds that he does not believe so but he will have to check his minutes. Mr. Gurnee states that he is aware of at least one dock that extends as far as the aquaculture farm. Mr. York asks Mr. Cook if he will have liability insurance and Mr. Cook confirms that he will.
Robert Zammito, 36 Popponesset Island Road, has great concerns over the anchoring system. He states that every winter there is an ice-flow which flows with the tide. The ice-flows which can be about a mile long move and it had actually snapped two of his poles one year. He feels that nothing will hold those cages down in the ice-flow and it will be very hazardous. Mr. Zammito also states money that he pays for a mooring and Agent McManus informs him that financial issues are not the commission’s concern. Mr. Zammito also would like to forward an email to the Commission regarding heavy equipment that will be used to move the cages and feels that Mr. Cook’s description of the electric tool is not true. Mr. Cook rebuts
Mr. Zammito’s comments and explains that in the winter, all of the cages will be moved into deeper waters below any possible ice damage. Mr. Gurnee asks where the cages will be moved to and Mr. Cook says they will be moved to the outer deeper portion of the site.
Alfred White, 2 Cross Tree Way, would like to discuss the function of the Conservation Commission and the legal parameters that guide the decision authority. He continues by saying that the only beneficiary of the project is Mr. Cook. He doesn’t think that anyone would ever buy a home within 30’ of a farm. He feels that it will reduce property values. He states that this is a business and the Commission would be approving a factory.
Leslie Caffyn, 10 Popponesset Island Road, claims that the pictures of the proposed site are deceiving in where they are made to look like there are no surrounding houses. She states that people kayak near the shore because it is calmer. She doesn’t believe that they will be able to kayak over the cages and the will be required to go around them. Also, if the cages push out and end up in the channel, it would become hazardous.
Attorney Brian Wall, who is representing 21 residents, states that he has a couple of notes from information that he has heard this evening. First, Mashpee’s recreational interests do protect leisure activity or aesthetic enjoyment of wetland resources. Mr. Wall states that Mashpee’s bylaws do in fact protect the views and assuming that Mr. Cook’s calculations are correct regarding the submerged cages, the waters are clear in this area and the cages will be visible below the surface. Mr. Wall addresses the opinion from Town Counsel and he maintains that Mashpee’s bylaw is far more stringent then the state act and it clearly says in Regulation 3 an application will be ruled incomplete until all other applicable local
and obtainable permits have been issued. Mr. Cook’s application should still be ruled incomplete and withdrawn or continued until after the appeal is resolved. Mr. Wall continued with his second point; Mr. Cook has come back with more information but he feels that it has raised as many more questions. There has been no information submitted to the Board in regards to wave force and whether or not the anchors will stay in the ground. He believes, according to his calculations, that there will be 200 rows of cages held down by 100 cables held down by 200 anchors held together by 3000 connectors and sitting on pipes that will be driven into the ground. There has been no information submitted regarding how Mr. Cook plans on putting the pipes into the ground. Mr. Wall feels that the Commission should require Mr. Cook to submit an Operation/Maintenance Manual; some kind of protocol or methodology as to what he will do on a day-to-day basis.
Mr. Wall also states that the Massachusetts Supreme Court has made it very clear that aquaculture is not part of a public trust right and Mr. Cook has no right to conduct any aquaculture above the mean low water mark so any intrusions above that for aquaculture purposes are not allowed. How will he maintain any of this equipment that breaks off if he has no property rights to go above mean low water? Mr. Wall’s third point is regarding Regulation 17 which is coastal resource areas. He says that the general standard that is applicable to all projects in the bylaw will not have an unacceptable significant cumulative effect. Mr. Wall did not hear Mr. Cook say anything about this. The coastal area, which Mashpee has adopted a much more heightened standard, says there shall be no adverse impact. Mr. Wall still feels that the recreational interest is the biggest concern and he continues with reading the regulation for the record. Mr.
Wall states that there will be an adverse impact upon recreational interests and that Mr. Cook has not provided credible evidence that there will be no adverse impacts so he feels that this project should not be approved.
Chairman Fitzsimmons thanks the public and the great interest that they have shown. Mr. Gurnee comments that he feels that the anchoring system is still an issue and needs to be addressed. Mr. Allen referenced an existing oyster farm in Wellfleet that has had no affect on local surrounding property values. Mr. Gurnee feels that Mashpee is not required to protect all recreational issues in all areas otherwise there would be no docks permitted as they would get in the way of kayakers and swimmers. Chairman Fitzsimmons says that originally he was for the project but now hearing about safety concerns, aesthetic values and recreational issues, he feels that they cannot be dismissed easily. Mr. Sweet asks Agent McManus where the
language is in the bylaws that addresses the protection of views and the Agent responds that there is not any specific language for that subject. Mr. Gurnee states that the cages will not be above the water and will not be seen. Mr. Wall disagrees with Mr. Gurnee and states that from an elevated point of Ms. Caffyn’s property, you can see downward into the water but another concern is the maintenance activity associated with the project.
Mr. Cook responds to one of the concerns that Mr. Wall had and that was the fact that the PVC pipes will not be driven, that they are will actually be lying flat and used as stand-offs. Mr. Cook informs the public that there is a benefit to this project as these cages will act like reefs and provide habitat and protection for multiple organisms frequently serving as nursery grounds for fish and other shellfish such as juvenile lobsters. He also mentions an oyster farm of approximately one acre can compensate for the nitrogenous waste of 40-50 coastal inhabitants.
Chairman Fitzsimmons mentions that there were a few adverse comments that were expressed about the conduct of the Conservation Agent, Drew McManus and he would like to state that they were out of order. The Chairman continues saying that Drew McManus has been the Agent for several years and that he himself has been on the Board for 21 years which Mr. McManus is the finest agent that they have ever had. They are very lucky to have him and he should be proud of his performance.
Motion made and seconded: In favor: ~Vice Chairman Shaw, Brad Sweet, Lloyd Allen, Mark Gurnee; Opposed: ~Chairman Fitzsimmons and John Rogers ~Notice of Intent is carried to Close and Issue
7:09 Colin Dangel (760 Cotuit Road) Permit grandfathered dock - RDA
Resource Area: Land Under Water
Material submitted: Computer Diagram/GIS Map/Photos 6/13/11 Owner
Mr. Dangel would like to permit his grandfathered dock that has been on the property for 50+ years. It was maintained approximately 25 years ago. Agent McManus states that he did inspect the dock and confirmed its grandfathered status. The Agent explains to Mr. Dangel that he must place property identification on the dock and float (house address)
Motion made, seconded and unanimously carried for a Negative Determination
7:12 Todd & Dena Pavone SE 43-2664 (166 Waterway) Demo/Rebuild SFH with driveways, pool – NOI Cont’d from 6/16/11
Resource Area: Coastal Bank, LSCSF, Buffer to Salt Marsh, Land Under Ocean
Material submitted: Plot Plan Reconstruct House Pgs 1-4 6/28/11 BSS Design / Buffer Strip Restoration 6/7/11 Vaccaro Environmental Consulting
Jack Vaccaro from Vaccaro Environmental is representing the applicant and explains that this property was previously approved for a demo/rebuild in 2008 with orders that are still valid but the new owners prefer a different footprint. The new structure will be built further back from the creek but would like to create a pool on the creek side so there is a net increase in structural footprint towards the creek. It will be required for the applicant to provide sufficient mitigation to offset the increase in hardscape within 100’ of the resource area. Mr. Vaccaro would like to remove the lawn area in front of the creek and restore it back to its natural state with native shrubs. The mitigation requirement would just be under 2000
sq. ft. of plantings and the applicant is supplying just over 2000 sq. ft. Mr. Vaccaro mentions that this project has been reviewed and approved by the Zoning Board of Appeals. Agent McManus inquires about the remnants of an old bulkhead wall associated with the property that currently extends out into Popponessett Creek and Mr. Vaccaro expects that the wall will be addressed in the future. Mr. Sweet asks about the changes to the drainage on the proposed project and Mr. Vaccaro states that the engineer has designed a series of infiltration basins.
Motion made, seconded and unanimously carried to Close and Issue
7:15 Kenneth Parolski (357 Monomoscoy Road) Upgrade septic system to Title V - RDA
Resource Area: LSCSF
Material submitted: Plot Plan Existing House 6/16/11, BSS Design
Tom Bunker from BSS Design requests approval for an upgrade to an existing septic system. He explains that there are two cottages that are each served by a separate cesspool. Both systems flow down to one septic tank and pump chamber and then pumped up to the highest point of the property. The new system will be more than 280’ from the wetlands.
Motion made, seconded and unanimously carried for a Negative Determination
7:18 John Beasley (26 Little Neck Lane) Rebuild dock in same foot print - RDA
Resource Area: Land Under Ocean
Material submitted: Existing Dock & Walkway 10/21/91 / Salt Marsh Staking Plan 10/5/99 / GIS Photos - Owner
Mr. Beasley explains that they are soon purchasing the property and would like to repair the dock that is in total disrepair. They would like to rebuild the dock and ramp in the same footprint which will include replacing the pilings. Mr. Gurnee comments that the drawing is different and Agent McManus states that they are going further out to reach a great water depth because when the dock was originally built, the water was deeper in that area. Mr. Beasley states that he is in the process of filing a Chapter 91 license for a new dock to bring it up to standard. Agent McManus informs Mr. Beasley of the required standards for plank spacing on walkways for the allowance of sunlight penetration to vegetation below the
dock.
Motion made, seconded and unanimously carried for a Negative Determination
7:21 Jeffrey Cohen (154 Fells Pond Road) Upgrade septic system - RDA
Resource Area: Inland Bank/ Buffer Zone to Pond Front
Material submitted: Proposed Septic System 6/17/11 Engineering Works
Peter McEntee from Engineering Works is representing the home owner and explains that the existing septic system is failing. The current system lies within 100’ buffer and they would like to place the tank and pump chamber in the same vicinity and pump up to a leaching system in front of the house which is outside the buffer zone. Mr. McEntee states that there is a variance relief for the septic tank on the property line and 6’ of soil absorption.
Motion made, seconded and unanimously carried for a Negative Determination
7:24 Alberto & Christine Costa SE 43-2665 (180 Fells Pond Road) Construct a small dock and repair/replace access stairs - NOI
Resource Area: Inland Bank, Land Under Water
Material submitted: Proposed Walkway, Landing, Ramp & Float 6/21/11 Cape & Islands Engineering
Jack Vaccaro from Vaccaro Environmental is representing the home owner and explains that they would like to construct a small dock and float on Fells Pond along with replacing older railroad tie steps with new ties. They would also like to install a landing with a ramp that extends to the float. Agent McManus states that there is no requirement for Chapter 91 because Fells Pond is less than 10 acres in size and thus is not considered a great pond by the state. Mr. Gurnee expresses his concern about runoff and Mr. Vaccaro suggests that they can place hay bales in a horseshoe type pattern close to the bottom of the bank.
Motion made, seconded and unanimously carried to Close and Issue
7:27 Auta Hendler (156 Popponesset Island Road) Remove approximately 5-6’ of lawn to create planting bed; plant six cypress trees, five beach plums and additional small landscape changes - RDA
Resource Area: LSCSF, Buffer Zone to Creek/ Buffer Zone to Coastal Bank
Material submitted: Planted Screen Concept 6/20/11 Tavares Landscape
George Lavoie from Francisco Tavares Landscape explains that they would like to do a series of plantings to create a privacy screening. Agent McManus states that this is cosmetic changes and approves the selection of plantings.
Motion made, seconded and unanimously carried for a Negative Determination
- Updates on Vehicle Access Restrictions: Agent McManus had met with the Chief of Police, Fire Department Chief, the Director of Public Works, Joyce Mason, Chuck Green, Michael Richardson and Wayne Taylor to discuss working with the Mashpee Police Department in identifying dumping areas. A proposal to block areas with boulders, gates or concrete barriers was presented and approved. The project will be done in phases.
- Compact of Conservation Trusts: Conservation Restriction- Mills/Brennan property
Agent McManus would like to address the concerns from some of the commissioners regarding potential tax abatements from this proposed CR. He states that when it comes to CRs, the main focus of the commission should be on environmental benefits that the CR provides, not tax issues. He continues with explaining that this CR covers 5 acres with 300 ft of pristine shore front on Santuit Pond that will be forever saved from development (residential or commercial). Agent McManus feels that any conservation restriction should always be welcomed so long as the commission feels it provides and environmental net benefit. Agent McManus submitted the CR document again to the commissioners for endorsement. He explains that signing the document is only a recommendation to the conservation commission for the
purposes of endorsement for the Board of Selectmen. Chairman Fitzsimmons feels very strongly that donated land to the town should be for recreational purposes and these owners only want to save the land for themselves with their entitlements and deprive the town of tax revenue. Agent McManus asks that the commissioners keep in mind that there are portions of this property that fall under the jurisdiction of the wetlands protection act and that this CR does not give them any special permission to do whatever the land owners want within conservation jurisdiction. Mr. Gurnee states that originally he was against this CR as proposed but after researching information on Conservation Restrictions, he is for it. Mr. Gurnee reads a few excerpts that he had found during his research. He states that he understands that the owners will be receiving a tax break while giving up development rights, but it is a beneficial reason to accept from a conservation view
point. Mr. Sweet agrees and states that it is unfortunate that there will be no public access to the waterfront. Agent McManus points out that currently the Conservation owns parcels of land that do provide very open access to Santuit Pond, including a public boat ramp. One parcel that is owned by the Selectmen is 350 acres and consists of abandoned bogs which give access to the Santuit River and the entire southern portion of Santuit Pond. This particular parcel is adding 5 acres that will provide a connective wildlife corridor to the Santuit Pond Preserve parcel.
Motion made, seconded and unanimously carried to adjourn the meeting at 9:30 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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