Conservation Commission
Minutes of June 2, 2011
Public Hearings
Mashpee Town Hall - Conference Room 1
Commissioners: Chairman John Fitzsimmons, Vice Chairman Ralph Shaw, John Rogers, Brad Sweet, Lloyd Allen
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:
- Minutes: Approval of the following minutes: Thursday, April 21, 2011
Motion made, seconded and unanimously carried to approve the minutes of April 21, 2011
- Administrative Review: SE 43-2620 138 Summersea Road; Patio wall extension.
Resource Area: Buffer Zone to Coastal Bank/Salt Marsh/ACEC/ LSCSF
Material submitted: Certified Plot Plan 5/26/11 Christopher Costa & Assoc. (submitted by owner)
Brian Cook, the owner, explains that they would like to extend a pre-approved retaining wall by creating a 6” high edging. The extension would be approximately 30’ in length. The Agent states these changes are cosmetic and recommends approval.
Motion made, seconded and unanimously carried to approve the Administrative Approval for SE 43-2620
- Administrative Review: SE 43-2521 37 Monomoscoy Road West; Boathouse structure to be moved away from Overland Road and top of coastal bank.
Resource Area: Coastal Bank, Buffer to Salt Marsh/LSCSF
Material submitted: Proposed Boat House 5/31/11 Cape & Islands Engineering
John Slavinski, Cape & Islands Engineering, states that the Zoning Board of Appeals has required the boathouse to be moved farther away from the road which will result in being further away from the coastal bank as well and that they have also changed the size of the structure so that it is smaller.
Motion made, seconded and unanimously carried to approve the Administrative Approval for SE 43-2521
HEARINGS
7:00 Joseph Bousa (30 Spoondrift Way) Remove 10 pitch pines and prune others around wiring - RDA Cont’d from 10/21/10
Resource Area: Buffer Zone to Coastal Bank/Creek
Material submitted: Assessor’s Plot Plan - Owner
Joseph Bousa explains that he has a heavily wooded lot including some pitch pines that are in poor health and he would like to remove them. Agent McManus states that he has inspected the trees and also found an additional two trees that are infected with beetle damage that could cause damage to the house. Chairman Fitzsimmons confirms a total of 12 trees.
Motion made, seconded and unanimously carried for a Negative Determination
7:03 Robert Junkin (68 Waterway) Remove one dead tree and add lawn to a pre-disturbed area - RDA
Resource Area: Buffer Zone to Coastal Bank/ Creek
Material submitted: GIS Print 5/13/11 Owner
Justin O’Connor from Joyce Landscaping explains that he is representing the land owner. Agent McManus states that the tree is obviously dead and that the area is composed mainly of wood chips. The agent then explains to Mr. O’Connor that there are lawn guidelines that must be followed (the Agent gives Mr. O’Connor a copy of the lawn guidelines).
Motion made, seconded and unanimously carried for a Negative Determination
7:06 John & Catharine Brennan SE 43-2660 (36 Fiddler Crab Lane) Demo/Rebuild single family home with attached garage and mitigation/restoration - NOI Cont’d to 6/16/11@ 7:09pm
Resource Area: Buffer Zone to Bordering Vegetated Wetland
Material submitted:
Requested continuance by representative.
Motion made, seconded and unanimously carried for a continuance until 6/16/11 at 7:09 pm
7:09 Ed O’Rourke (Russell Road East / Great River Road) Regrade Russell Road East and a portion of Great River Road. Also to construct a shallow vegetated bio-retention swale. - RDA Cont’d to 6/16/11@ 7:03pm
Resource Area:
Material submitted:
Requested continuance by representative.
Motion made, seconded and unanimously carried for a continuance until 6/16/11 at 7:03 pm
7:12 Lawrence Pearce SE 43-2661 (146 Waterway) Construct new single family home with attached garage, pool and landscaping/hardscaping - NOI
Resource Area: Coastal Bank, Buffer Zone to Salt Marsh & Creek, LSCSF
Material submitted: Existing Conditions 10/13/10 Cape & Islands Engineering; Proposed Site Plan 5/22/11 Cape & Islands Engineering; Mitigation Calculation Plan 4/13/11 Cape & Islands Engineering; Pearce Conservation Landscape Plan 5/24/11 Talbot Ecological Land Care
Jack Vaccaro from Vaccaro Environmental is representing the homeowners. Mr. Vaccaro explains that they are improving the site ecologically. The new house is being proposed in a larger footprint. The house will be pushed further from Popponesset Creek but the pool/patio area will be closer. They will be removing a shed that is on the property and in disrepair. The new home will consist of four bedrooms with a new Title V septic system which will be located further from the creek. There is a wing on the north side of the house that will be closer to the creek. There is a rear blue stone patio with a lower terrace. Agent McManus reads the comments from the Board of Health which states that the property is in Zone 2
and is restricted to three bedrooms. John Slavinski, Cape & Islands Engineering, states that he is aware that the property is in Zone 2 and they had submitted a plan to the Board of Health who did not comment to him at that time. Mr. Slavinski says that if it is only three bedrooms than it will be three bedrooms. The Agent informs Mr. Slavinski that a new plan will need to be submitted if it changes to a three bedroom house.
Agent McManus states that mitigation is being offered for the encroachment to the bank and will be reducing the existing turf area. Chairman Fitzsimmons is concerned about the pool proximity to the coastal bank and the Agent states that it is a coastal bank by slope definition only and does not serve any environmental benefit other than storm damage protection. Mr. Vaccaro informs the Board that the mitigation calculation requirement is less than 8000 squ. ft. but they are proposing approximately 8800 squ. ft. of mitigation.
Mike Talbot, Talbot Ecological Landscape, explains how the landscape will change from turf to the landscape as shown by his displays. He states that there is a corridor of trees that will be preserved. They will be removing the turf along the saltmarsh and placing a raised berm to stop storm water runoff. The turf area will be cut down to 1100 squ. ft. and they will be keeping a few trees although there are a few that will need to be taken down because of their location. Pool and house are well elevated above the flood plain. The new landscape will be mostly native plantings with some vegetable and herbal gardens.
Agent McManus states that the proposed small area of lawn will be a conservation mix grass. He recommends to Mr. Talbot that that the pathway should be pervious.
Motion made, seconded and unanimously carried to Close and Issue
7:15 Briarwood-Mashpee Association (261 Hooppole Road) Rebuild dock in same footprint - RDA
Resource Area: Land Under Water (Johns Pond)
Material submitted: Hand drawn 5/20/11 Todd Kelly
Todd Kelly is representing the Association and explains that the dock has been damaged over the winter and would like to rebuild it as a free floating dock. Agent McManus mentions that this dock has been previously permitted as a grandfathered dock so the plan is on file. It will be the same foot print and location although floating instead of pile supported. The Agent states to Mr. Kelly the requirement of identification on the dock.
Motion made, seconded and unanimously carried for a Negative Determination
Chairman Fitzsimmons recognizes the amount of people for the next hearing and explains to the public the process in which each agenda item follows and that there will be time for public comment. He also requests that comments or questions not be repeated.
7:18 Richard Cook SE 43-2662 - Aquaculture Project in Popponesset Bay with MIP - NOI Cont’d to 6/16/11@ 7:12
Resource Area: Land Under Ocean/ Land Containing Shellfish
Material submitted: Plan Showing Area of Shellfish Gran 5/10/11 Coastal Engineering
John Rogers recluses himself
Don Monroe from Coastal Engineering is representing Mr. Cook for his application to grow oysters in Popponesset Bay. Mr. Monroe explains that Mr. Cook has obtained a grant previously for another area in town that is a very successful, well-run operation. The Division of Marine Fisheries has submitted their comments that state there are no potential impacts to the resource area. Mr. Cook feels that he will be able to grow a substantial number of shellfish along with his other operation that also produces habitat for other living organisms that find shelter within the cages. According to Mr. Monroe, this project will benefit the environment as it provides a filtering system with the different types of organisms. The cages
will be elevated above the bottom although they will stay completely submerged at all times because they are below the Mean Low Water (MLW). They are 3” in depth and 4’ x 4’ length and width. Chairman Fitzsimmons asks of the jurisdictional rights. The Agent states that is Land Under Ocean, Land Containing Shellfish and is a resource area that is protected under the Wetlands Protection Act. The Chairman asks if this proposal has already been presented to the Board of Selectman in which Agent McManus states that it has and was approved. The Agent reads for the record the letter from the Division of Marine Fisheries who had conducted a survey of the site. The Agent also reads 310 CMR 10.34 Land Containing Shellfish bylaw for the record which basically state that projects approved by the Division of Marine Fisheries that are specifically intended to increase the productivity of land containing shellfish may be permitted and
aquaculture projects approved by the appropriate state and local authorities may also be permitted. Agent McManus feels that Popponesset Bay is becoming impacted by nitrogen loading and that you can physically see it in the form of yearly algae blooms. He has not seen any documentation that shows adverse impact from shellfish aquaculture projects.
Mr. Sweet asks why this particular area was selected. Mr. Cook responds that they needed another site to be able to “over-winter” oysters since the other site is very shallow. He explains that they had looked all over town and found issues with other areas. This location has shown to have very few shellfish and a good flow current. It is not directly in front of any homes and he had found it was the optimal site.
Agent McManus asks of the anchoring system and buoys in regards to navigational concerns considering how well they are marked. Mr. Monroe states that the anchor system is shown on the two schemes submitted.
Rick York, Shellfish Constable, states that the benefit to the town from the shellfish farms are not only from filtering nitrogen and algae but also that the shellfish, before they are harvested, spawn which are carried by the tide and seed other areas. Mr. York believes that this will give opportunity to establish a larger population of oysters.
Agent McManus asks if they will be marked with buoy markers for navigational purposes. Mr. Cook responds there are nine points that will need to be marked with a yellow buoy which is required by law. Mr. Cook also mentions that the cages will be under water at all times barring a hurricane which might drain the entire bay before coming on. Agent McManus reads DEP’s comments which state a Chapter 91 license may be required.
Brian Wall, Attorney, who is representing 21 property owners that live in the vicinity but also is representing 11 separate properties including Leslie Caffyn who owns property that is directly upland from the site. Mr. Wall continues with pointing certain statements within the NOI; one being that Mr. Cook’s NOI states 400 square feet but that Mr. Cook had presented before the Board of Selectmen and stated that his project will be one acre in size with 3000 4’x4’ cages in the grant area. Mr. Wall’s calculations show that the project will be about 50,000 squ. ft. which is more than an acre. Mr. Wall also does not believe that the cages will always be below water at all time because according to the plans submitted, shows a depth at the landward edge of the grant is about one foot. Agent McManus questions the impact on resource with this observance and Mr. Wall says that the cages are in the velocity zone and will effect tidal action. Mr. Wall feels that the project being in the
velocity zone is a very important issue. Mr. Wall also states that he does not believe that the NOI is complete. Section 3 states that the applicant shall have obtained all local obtainable permits prior to coming before Conservation. He states that Mr. Cook should have obtained two local permits; one is a license issued by Selectmen. Mr. Cook has applied but that action has been appealed to the Barnstable Superior Court. Secondly, Mr. Wall feels that there are significant zoning issues as this area is a residential district and aquaculture is not allowed. He also states that there is a provision in the zoning bylaws which concerns development in a flood zone and it specifically prohibits any development which is defined as any man-made operation occurring in a velocity zone. Finally, there is a 50’ zoning setback from any wetland resource area under Mashpee’s zoning bylaw. There is an exemption that is allowable for
things like piers, docks, bridges or boardwalks and he states that aquaculture is not exempted. Mashpee’s regulations require an applicant to have a letter from the licensed Massachusetts attorney certified to Conservation that the project is exempt from that 50’ setback. Mr. Wall urges the Commission to require that Mr. Cook submits such a letter to the Board.
Mr. Wall also states that the NOI is incomplete because the plans do not show any structures and Mashpee’s definition reads that aquaculture gear is specifically defined as a structure. He states that Mr. Cook’s Ockway Bay grant is not in a velocity zone so therefore the force factor as such in this area will not be as strong. Mr. Wall continues to say that there are other resource areas that should be identified such as land under oceans and it must be proven that there will be no adverse affects. He also says that storm damage prevention needs to be considered [which he reads the definition for the record]. He continues saying that there is the likelihood that in a velocity zone, these cages could become water-born debris and cause damage to the properties in the area. Mr. Wall
says that in addition, Mashpee regulates recreational interest which he reads the definition from the bylaw; any leisure activity or sport taking place in or within a 100’ of a resource area. This project will have an effect on property owners’ ability to access the water and shows that there would be adverse effect to the resource area. Mr. Wall states that the plan does not show all the resource areas as well. There is a salt marsh on the spit and the cages could wash up and impact the salt marsh. Mr. Wall has contacted Natural Heritage to find out if the proposed project was near any areas that have endangered or threatened species. They conducted this through the formal application process by filling out the appropriate form and they have since received a letter back [which will be submitted for the record] that states a small edge of Mr. Cook’s project is within an estimated habitat for rare and endangered species. Mr. Wall
states that Mr. Cook submitted an informal email to someone that works at Natural Heritage and appears that there was an informal comment from someone there that looked at the maps and determined that it was outside the protected area.
Mr. Wall recommends that the Commission work through all these points that he has brought up before going forward.
Chairman Fitzsimmons states that Mr. Wall has brought up a number of points and suggests further review before any decisions.
Agent McManus states that there are all different types of structures within this velocity zone that have been permitted. The Agent reads for the record Section 172-7 of the 172 bylaws regarding waivers if by finding the project will improve the natural capacity of the resource area to protect wetland values which he feels has been demonstrated by the letter from the Division of Marine Fisheries and also the Shellfish Constable. The Agent recommends a continuance and feels that it is not necessary for a withdrawal at this time as there has been a lot of information provided and he still feels that there will be no in adverse impact to the environment and is actually a net benefit to the water quality. Although, he does agree that there is some missing information and a continuance is recommended.
Mr. Cook would like to re-state that the cages will not be exposed as the depth gets shallow and closer to shore, the nearest portion of the grant might not have cages and may just be quahog planting with a screen over the top. The cages are 3” in height but they are stacked on top of each other and that is why it will only be one acre. Mr. Allen requests a picture of the anchoring system and Mr. Monroe can provide calculations of the cable strengths within the velocity zone. Mr. Monroe also states that if needed, they can adjust the coordinates so as not to go into Natural Heritage district. These coordinates will also be reviewed by the Army Corp of Engineers.
Agent McManus reads the comments from Amy Coman who is from the Endangered Species Review for the Natural Heritage Endangered Species program. She states that the eastern most edge of the grant follows the priority estimated habitat line and since the edge is essentially the edge of the area where all work or activities will occur, it appears that it is not required to file pursuant to the Mass. Endangered Species Act.
Jack Vaccaro from Vaccaro Environmental represents Ms. Caffyn and found after reviewing Mr. Cook’s plans that it does nip into the priority habitat so they have submitted a MESA rare species request to Natural Heritage to determine what rare species were in the area and this specific email from Ms. Cohen is under dispute. Mr. Monroe says that this is easily resolved by getting the coordinates from Natural Heritage and the Armycorp.
Chairman Fitzsimmons recommends a continuance in which Mr. Cook agrees and asks for a two week continuance.
Motion made, seconded and unanimously carried for a continuance until 6/16/11 at 7:12 pm
- Prescribed Burn Proposal Mashpee Pine Barrens (Tom Eagle/Chief Baker)
Material submitted: Power Point Mashpee Fire Plan Power Point Presentation (USB Flash Drive [7/1/10]); Handouts: N.E. Cottontail (Aug 2006 Print), National Wildlife-Managing Fire to Protect Wildlife & People (March 2010 Print)
Tom Eagle from the U.S. Fish and Wildlife Service; Assistant Manager for Eastern Massachusetts National Wildlife Refuge Complex states that Mashpee Natural Wildlife Refuge is one of eight areas that they manage. Mashpee Natural Wildlife is a partnership refuge. Mr. Eagle explains that they have received a draft fire management plan for a first prescribed burn in Mashpee Natural Wildlife Refuge. It is a small scale but their objectives are; to reduce hazard fuels in the wild land urban interface where housing developments are abutted very close against the natural community which involve fuels that are very common in the pine barren areas; to improve habitat between the cottontail rabbits; maintain the ecological integrity of northeast pine
barren eco system; and also as a training opportunity for town, state and federal firefighters. Data has been collected to develop a model in prescriptions for managing hazardous fuels in the refuge. The plan calls for over-story and under-story management to reduce the potential for running crown fire. Prevailing winds in the summer when the fuels are the driest is from the southwest which will put it right into a specific housing development. Mr. Eagle explains some of the equipment they had brought in to use and some of the processes used to widen access roads. He shows some pictures from the Holland Mills Road work. They had created fire breaks around three major subdivisions within Holland Mills and Great Hay Road area. They will burn 13 acres which will be divided into four burn management areas.
Mr. Eagle states that since they were doing all this, Massachusetts Ecological Services, Fish & Wildlife Services and the state became more involved in the New England Cottontail conservation. The N.E. cottontail is on a candidate list to be considered an endangered species which they have been doing everything they can not to put them on the endangered list. They have been doing intensive habitat management by tracking, monitoring and modeling. Their range has been significantly reduced. They have put collars on every rabbit caught and have been monitored through the burn management process. They are down to 8 rabbits (from 28).
They have used mechanical devices to clear under-story but pitch pine and scrub oak are a fire dependent eco system. Chief Baker has brought in firefighters for training; Mr. Eagle has brought in his staff as well. He states that a burn may require 10-12 firefighters but they will probably have approximately 20. They will have to follow DEP’s strict ozone guidelines.
Chief Baker states that they will use the Reverse 911 system to contact homeowners along with the regional sign boards. Mr. Sweet asks of some other areas of concern and Chief Baker states that with this particular area, they were able to overlay the habitat management plan for the rabbit so that there were two projects to complete at once. He also states that this was a test project to see how the rabbits reacted.
Mr. Eagle informs that they are looking at the next step by creating a management plan for the Mashpee Wampanoag Tribe area which is located directly across from Great Hay Road. This project is different where they will have to thin the over-mature pine trees that are creating a “canopy” that can carry crown fire and also are preventing sun light to the forest floor.
- BOS acceptance of Quashnet River Steering Committee – The Board of Selectman accepted the Quashnet Steering Committee proposal which will consist of a five member committee.
- Quashnet River Meeting Minutes – Agent McManus states that the minutes from the last meeting have been emailed.
- Certificate of Recognition – Todd Kelly had volunteered, on his own time, to remove approximately six truck loads of trash from a John’s Pond Conservation parcel. DPW had given him a one day pass. Agent McManus would like to give Mr. Kelly an “Above & Beyond” Recognition Certificate signed by the Commission.
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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