Conservation Commission
Minutes of July 12, 2012
Public Hearings
Mashpee Town Hall - Conference Room 1
Commissioners: Chairman John Fitzsimmons, Vice Chairman Ralph Shaw, Patty Jalowy, Lloyd Allen and Mark Gurnee
Staff Present: Drew McManus (Conservation Agent) and Kris Carpenter (Administrative Secretary)
Call Meeting To Order: 6:55 pm
The meeting was called to order with a quorum by Chairman Fitzsimmons at 6:55 pm.
There was no public comment.
Pre/Post Hearing Agenda:
- Minutes: Approval of the following minutes: June 14, 2012
- Renee Fudala – Chairman Fitzsimmons presents a certificate to Renee Fudala for her outstanding work. Agent McManus states that the certificate is being presented on behalf of the Commission for all the great work she is doing on the tour guides.
- Kelsey Boyd/Americorps 2012-2013 – Agent McManus sent an application into the Americorps for the 2012 – 2013 Individual Placement Program and confirms that we have qualified again. Kelsey Boyd has one week left but she will come in for the next Commission meeting for a Certificate of Recognition. The agent states and all agree that Kelsey has done amazing work for the Land Steward Program.
- Tidewatch/Bayswater – Joe Colasuonno from Bayswater Development states that they have agreed to remove the 2 x 4’s and the filter fabric from the coastal beach project. Mr. Colasuonno says that they are working on a schedule for the rest of the rock relocation which are being moved to the left side of the coastal bank. Coastal Engineering Consultants advised how to stack the rocks and recommended that filter fabric be placed behind them with bedding stones between them. One inch thick rubber bands have been agreed on to ensure the spacing between the existing piles. The rubber bands will encompass the top and bottom portions of each pile
Agent McManus asks, since this portion has been agreed on, will the beach nourishment be moving forward and Barry Fogel from Tidewatch confirms that they will be moving forward and he also states that they would like the work to be done as soon as possible as there is no reason to wait for after summer. Mr. Fogel states that the beach is unusable for a number of reasons including the seaweed issue. He says that Tidewatch is willing and able to place 1500 cubic yards right on the beach after the work is done and will hopefully create a higher profile for future nourishments. Mr. Fogel states that he and Attorney Mills have been working on a long term access agreement so that Tidewatch and Bayswater can cooperate on timing and location of beach nourishment. Their engineers think that putting it on the beach
would still provide protection for the toe-stones on the Tidewatch seawall. Chairman Fitzsimmons asks if under the original Order of Conditions, the beach nourishment provided by Bayswater was to be deposited behind the piles but then the plan was changed to place the beach nourishment in front of the piles, but has it changed again to place it back behind the piles? Mr. Colasuonno confirms that now with the spacing between the poles, nourishment placed behind the piles will dissipate between the poles as it was supposed to do. The Chairman asks if there is any way to calculate if the spacing is accurate to allow the sand to dissipate between the poles. Agent McManus responds that the project was never given a chance to perform so it may be premature to make any kind of speculation of how it will operate.
Mr. Colasuonno states that another issue is the timing of the nourishment; in the past, they would nourish late fall to anticipate fall storms to protect the embankment. They are concerned about putting the nourishment out too soon and by the time the storms come, the nourishment would be gone. The nourishment is provided to create a beach but it is also to protect the bank. Mr. Fogel states that a condition that was put in both Orders was to direct each land owner to coordinate the beach nourishment and that is what they plan on working with going forward because over time, both Orders require beach profiles to be done. Mr. Fogel states that they will work with the agent to find the best timing for beach nourishment and maybe even consider nourishment in the fall for storm prevention and one in the
spring to raise the profile for the spring and summer.
Chairman Fitzsimmons asks about the beach nourishment that is to be provided by Tidewatch and his understanding was that in the Order of Conditions that was issued previously instructed that the beach nourishment was to be deposited in front of the Tidewatch property and not on the adjacent property. Agent McManus states that the original plan was to deposit the sand over the lower half of the wall to strengthen the wall. The Chairman wants to know that if placing sand on the adjacent property will satisfy the Order of Conditions that was originally given to Tidewatch. Agent McManus says that the main issue is for Tidewatch to monitor their wall and if there is any undermining of the wall than the nourishment should occur on the wall as well. Mr. Fogel states that the Order of Conditions reads
“The nourishment shall be placed on the beach annually” and about 10% of the Tidewatch wall is on Bayswater property; the part with the steps at the end which is the corner that matters most because that’s where the water washes in and collects and scours. Mr. Fogel suggests that there is plenty of language in their Orders and in Bayswater’s Orders that working with the agent would allow the best job possible to protect the bank and maintain the beach. Mr. Fogel says that what works is the goal and if they find a location that works then he suggests it is consistent with the language in the Orders.
Chairman Fitzsimmons asks what is the amount of beach nourishment that is owed by Tidewatch and Agent McManus states that the amount calculated from the year 2000 is 20,800 cubic yards which is from two different Order of Conditions; 43-1552 & 43-1166. There was a letter submitted by The Phoenix Group, Michael Grotske, which gives the following information: In 1998, 1000 cubic yards was placed by Tidewatch; in 1999, 200 cubic yards was placed at the end of the revetment; and in 2000, 500 cubic yards at the western end of the revetment. The agent has no other documentation showing any nourishment since then. Mr. Fogel states that they are still finding records of sand delivered, for example, in February of 2004 he has a proposal from a company called Easy Doze It Excavating to Woods Hole Group for
the reconstruction of the Tidewatch wall which includes placement of 4,056 cubic yards of clean sand for beach nourishment and construction access. Mr. Fogel states that they are also interviewing prior Chairpersons of the Board of Trustees to see what they recall and if there are any undocumented nourishment episodes. Howie Galls states that he was the Board Chair in 2008 and he was told by the engineers after they built the seawall that the sand that was being placed at the second hole of the golf course was flowing and nourishing Tidewatch’s seawall.
Agent McManus states that once the work is complete then an amended Certificate of Compliance can be submitted but he will confirm with Town Counsel. Mr. Colasuonno states that tonight it has been agreed on that Tidewatch was going to nourish 1500 cubic yards on Bayswater’s beach but he would like to know if there will be something in writing that states this will be done annually until they catch up on their deficit. Agent McManus states that they still need to address that and the Chairman says it will most likely be an enforcement order. Mr. Fogel states that that is a separate issue and he will communicate with the agent while they are still locating records of beach nourishment but these two issues should not be linked together moving forward. Mr. Fogel states that Tidewatch has an
easement on the beach and is agreeable to this work proceeding immediately because the beach is not really usable currently because of the profile and the seaweed that has collected there. Mr. Colasuonno would prefer to wait until September or later but Mr. Fogel would like to do it right away because it has created a problem in its current condition and is not meant to be storm prevention for Bayswater’s bank. Mr. Colasuonno states that any sand on the beach will help if a storm comes. Mr. Fogel states that they are not required to place nourishment on Bayswater’s beach; only that they are willing to place it there. Mr. Fogel says that Bayswater’s Order of Conditions has a minimum of 600 cubic yards or more depending on what amount of sand stays on the bank or feeds the beach. The obligation to keep the envelopes covered is Bayswater and not Tidewatch. Mr. Fogel continues to say that Tidewatch is prepared to take its
1500 yards and put it over on Bayswater to cooperate but it should not be turned into an obligation to place sand in that area. Mr. Colasuonno asks where the 20,000 yards will go and if it will come in an enforcement order. Agent McManus states that while trying to maintain the two issues as separate, Tidewatch does have an outstanding obligation for a significant amount of beach nourishment and he would prefer to work it out with Tidewatch although, if need be then the Commission will issue an enforcement order. Mr. Gurnee comments that nourishing 1500 yards every year now is good but what about what they owe and how that amount should be figured for each year. Mr. Gurnee suggests hiring an engineer to look at it and possibly talk about 1500 yards twice a year for the next 10 years but there needs to be a plan in place to make up what is owed. Mr. Fogel comments that they understand that but for now, Tidewatch is agreeable to taking this year’s
1500 yards and instead of putting it in front of Tidewatch’s wall, they will place it over on Bayswater property. They plan on this nourishment immediately after Bayswater is finished with their corrective action. Mr. Fogel’s question is when the Commission will direct Bayswater to do the corrective action. Agent McManus asks Mr. Colasuonno why the nourishment can’t be placed as soon as the project is complete. Mr. Colasuonno states that it makes more sense to build the banking up with sand to resist the winter storms rather than placing it down now and then there will be nothing for the winter. Mr. Fogel states that the winter stabilization is Bayswater responsibility as they have a minimal requirement of beach nourishment of 600 yards annually. Mr. Colasuonno would prefer to utilize the 1500 yards in a better way and Mr. Fogel states that they can wait to put the sand out there but there should be no reason to stall the
corrective action. Agent McManus asks Mr. Colasuonno about the timing of the fix and Mr. Colasuonno states that they feel it would be better to wait until after the summer season because the summer residents will get upset over all the trucks that will be present. They will be meeting with the residents on Seaside tomorrow who will voice their concern. Mr. Gurnee states that they have violated the Order of Conditions by putting an illegal wall in and it should be immediately removed. Agent McManus states that in a typical enforcement situation there should be immediate action. Mr. Colasuonno states that there may be a covenant in New Seabury that will not allow them to do this work at this time of year. Mr. Fogel would like the Commission to direct them subject to not being prohibited by any legal agreement. Agent McManus suggests the approval of the amended plans but as far as the timing goes, it should be up to the Commission to determine
the timeline although normal protocols calls for immediate action but because of the legitimate concerns of disruption to season and if it is even allowable; his suggestion is to approve plan and to clarify New Seabury’s restrictions. Mr. Gurnee asks if the discussion can be continued after the scheduled hearings as he feels it will require more attention. Mr. Colasuonno says he will bring it to the Peninsula Council but he states they will most likely not agree to mid-season work. Mr. Fogel states that rather than waiting until after the scheduled hearings, they will abide by the majority of the Commission’s decision if it is approved to be implemented as soon as feasible meaning right away unless there are prohibitions in New Seabury’s agreement. Mr. Colasuonno states that if the Commission would like to make the timeline contingent upon the decision of the Peninsula Council than he will abide by that as well.
Motion made, seconded and unanimously carried to approve submitted plan and with the respect to the timing that it be done as soon as possible unless protocols in place that prevent it.
HEARINGS
7:00 George Ryan (180 Ninigret Avenue) Install a 7’ x 15’ therapeutic swim spa in existing deck which will be enclosed as a three season sunroom - RDA
Resource Area: Buffer Zone to Pond Front, LUW- Johns Pond
Material submitted: Proposed Plot Plan 6/8/12 Cape & Islands Engineering
[47:45] Bruce Devlon is representing the homeowners and he explains that currently there is a hot tub in the back yard. They would like to remove the tub and replace it with a lap pool for therapeutic reasons. The three-season enclosed pool area will extend 2’ beyond the existing tub area. Mr. Devlon states that they will place an additional four sonotubes. Agent McManus states that there is no Natural Heritage Endangered Species jurisdiction and is being proposed in a pre-disturbed area. Because it is all lawn, there will be no vegetation removal and will not require any mitigation. Mr. Gurnee asks how far from the water will the new deck be and Mr. Devlon states 37’ to
John’s Pond.
Motion made, seconded and unanimously carried for a Negative Determination
7:03 John & Loren Kovalcik (48 Godfrey Road) Rebuild existing permitted dock in the same footprint - RDA **Cont’d to July 26th @ 7:03pm**
Resource Area: River Front, Land Under Water, Salt Marsh, Coastal Bank
Material submitted:
[52:55] No representative present. Chairman Fitzsimmons asks for a continuation.
Motion made, seconded and unanimously carried to continue to July 26, 2012 at 7:03pm
7:06 Peter & Linda Connly **043-2701** (172 Waterway) Demolish and construct a new single family dwelling with driveway – NOI
Resource Area: Coastal Bank, LSCSF, Buffer to Salt Marsh, LUO
Material submitted: Plot Plan Proposed House 6/27/12 BSS Design / Buffer Strip Restoration Plan 6/29/12 Vaccaro Environmental Consulting
[54:05] Jack Vaccaro from Vaccaro Environmental Consulting is representing for the homeowners and he explains that they are proposing to remove the existing house and construct a new four bedroom home. The house will be a larger footprint but it will be located slightly further back from the wetland. The existing home is 37’ from the wetland edge at its closest point and the proposed is 41’. They are proposing a gravel driveway which will replace the existing pavement and a new septic tank will be installed with a
concrete slab over the top to withstand the weight of a vehicle. The project also proposes a patio located alongside another patio that was approved previously with a pool on the adjacent property. This patio will be located further back from the wetland than the adjacent patio project. Mr. Vaccaro states that they looked at the increase in pervious area and structure and compared it to the existing condition and calculated a mitigation area requirement of 2100 sq. ft. The applicants have submitted a mitigation plan that shows a total of 2500 sq. ft. of wetland plantings which will be installed just above the salt marsh and with a raised berm about 6-8’ wide and 1.5’ high.
Agent McManus says that Board of Health commented that the septic application is incomplete due to a required septic inspection but it is forthcoming. The agent states that the proposed mitigation plan is a major upgrade from the existing turf and it supplies a very good buffer to Popponesset Creek although he did ask Mr. Vaccaro to add a drip strip along the patio edge. Agent McManus also informs Mr. Vaccaro that the existing dock will need the property address displayed on all sections of the dock including the float and fixed pier so that it is visible from the water. The DEP # for the dock should also be included with the address. Mr. Gurnee asks if there is any “tie-in” for the mitigation with the adjacent property. Mr. Vaccaro says that there is actually and he is the one that prepared the mitigation for the adjacent property.
Motion made, seconded and unanimously carried to Close and Issue pending Board of Health
7:09 Peter Dobyns & Tanya Dayos (30 Bakers Road) Modifications to a single family dwelling including a new Title 5 Septic System. Existing cesspool will be pumped dry, filled with sand and abandoned - NOI
Resource Area: Inland Bank Leading to Mashpee Pond
Material submitted: Plot Plan 6/10/12 Falmouth Engineering / Septic System Details 6/10/12 Falmouth Engineering
[1:07:40] Jack Vaccaro is presenting on behalf of Mike Borselli from Falmouth Engineering and explains that they are proposing renovations to the structure that is closest to the Mashpee-Wakeby Pond. They would like to add a second floor to the home. There will also be renovations to the first floor, re-siding and new windows. The only other work involves the replacement of the current cesspool that is situated very close to the lake. Mr. Vaccaro states that they would pump that dry, fill with sand and abandon
it in place and replace it with a new Title V septic system. It is a standard system but with a pump because the new soil absorption system is being sited further back on the property which is an uphill climb so the new tank being installed will have an internal pump. Mr. Vaccaro explains that there are outstanding issues being worked on with the Board of Health with the fact that they are increasing the number of bedrooms. The Health Agent has indicated that an alternative innovative treatment or denitrification may be required. Mr. Borselli is meeting with the Health Agent and it may be needed that a revision showing a denite might be required. Agent McManus states that the issue with the Board of Health is a component of the system that is outside Conservation jurisdiction. Agent McManus advises Mr. Vaccaro that even though it is outside of this project, it is now required that the home address and permit number be displayed on all sections of
the existing dock. Vice Chairman Shaw asks if there would be any effect to the tank and pump chamber if there are any changes issued by the Board of Health. Mr. Vaccaro confirms that there could be some changes to the internal mechanisms but the location of the tank will remain the same. Mr. Vaccaro states that if there are any changes that are within Conscom jurisdiction than a revised plan will be submitted. Mr. Gurnee suggests paying careful attention to the work limit and hay bales as the bank is real steep and erosion could still get through.
Motion made, seconded and unanimously carried to Close and Issue
7:12 David & Deborah Fischer (178 Wheeler Road) Replace and rebuild 10’ x 32’ deck in the same footprint - RDA
Resource Area: Inland Bank Leading to Ashumet Pond
Material submitted: Plot Plan 7/2/12 Paul Sparks Remodeling
[1:15:35] Paul Sparks from Paul Sparks Remodeling is representing for Mr. & Mrs. Fischer and he explains that they are proposing to remove and replace the sundeck in the same footprint. Agent McManus states that it is all pre-disturbed maintained turf in front of the deck.
Motion made, seconded and unanimously carried for a Negative Determination
- Town Meeting Articles – Agent McManus states that there are four articles to be presented at the Town meeting and it is mostly to change the language;
- The existing language in the bylaw that refers to Administrative Review Level II should be removed entirely; there is no such procedure anymore.
- Article 2 refers to the same language regarding Administrative Review Level II should also be removed entirely because it does not apply.
- Section 172-5 Section E will be requested for the wording to be replaced; where it says “issued and copies thereof filed with the Commission” to be replaced with “applied for local permits and proof of applications filed with the Commission”. Agent McManus states that the reason is that not all obtainable local permits are going to line up with the Commission’s meeting but they can supply proof of applying for permits and then it can be conditioned that the permit cannot be issued until all other local permits are received.
- Section 172-7; the agent reads the regulation for clarity for the record and then states that he would like to add additional language at the end of that section that will read “no new permit shall be issued for any project on a property that has an outstanding Certificate of Compliance”. Mr. Gurnee asks if it would be a conflict if an applicant has an Order of Conditions but would like to start a new project with a new Notice of Intent. Agent McManus states that it would not be a conflict; it would only require the applicant to close out any outstanding Order of Conditions before the Commission will review a new project. It will work well for the department’s efficiency as well as for the homeowner. There are times when the homeowner is trying to sell their house and they find out there is a lien on the
property at the last minute. The agent also states that it will also ensure that they are in compliance with the plans on file before they start any new projects.
Agent McManus states that these articles can still be amended on the floor at Town Meeting.
Tidewatch/Bayswater – cont’d
Chairman Fitzsimmons states that it reads in the Architectural Review Committee guidelines “No work will be allowed on Saturdays beginning June 30 through Labor Day” but that is the ARC and the Peninsula Council might be different.
Agent McManus mentions that Mr. Colasuonno from Bayswater would like to know what action the Commission will take regarding the back log of beach nourishment timeline and he suggests contacting Coastal Zone Management to get their opinion on what follow-up would be appropriate. They could possibly look at doubling up the nourishment; where they adhere to their yearly commitment and then doing a second nourishment at a different time of the year to catch up on what is owed. Vice Chairman Shaw asks if it should be relative to storm damage and the agent states that both properties are required to put down nourishment in anticipation of storm damage. Mr. Gurnee asks if that is additional nourishment and the agent confirms that it is additional; above and beyond what they are required annually. Chairman
Fitzsimmons would like to look at Tidewatch’s Order of Conditions to make sure they have firm information on the nourishment requirement. Chairman Fitzsimmons asks if the beach nourishment being placed on Bayswater property is going in front or behind the wall. Agent McManus says he believes that they were saying the first initial nourishment of 1500 yards will be placed on the seaward side and then from that point on, all future nourishment will go behind the piles so this way, they can build up the beach profile. Agent McManus states that when any kind of coastal bank nourishment is done, the immediate resources connected to it has to be protected which would be the coastal beach. The agent also states that time restrictions from Natural Heritage with piper plover habitat may very well be a legitimate concern and would be under Conscom purview. Agent McManus states that the attorney did bring up a good point though in which they do have a legal
basis to say that it is an enforcement issue and enforcement issues should be dealt with swiftly and quickly. Chairman Fitzsimmons says that since Town Counsel advised doing an amended Certificate of Compliance than it shouldn’t be considered an enforcement issue. Agent McManus states that it would have resulted in enforcement orders being issued if the two parties could not come to an agreement; one to Bayswater ordering the bank stabilization to be fixed and the second to Tidewatch to order them to catch up on the nourishment obligation.
Mr. Gurnee asks the Agent to confirm his next action which is to call Coastal Zone Management and the agent says that he will call them as soon as possible for their professional opinion and he will also contact Town Counsel.
Motion made, seconded and unanimously carried to adjourn the meeting at 8:43 pm. [1:46:15]
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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