Conservation Commission
Minutes of August 9, 2012
Public Hearings
Mashpee Town Hall - Conference Room 1
Commissioners: Chairman John Fitzsimmons, Vice Chairman Ralph Shaw, Brad Sweet, Mark Gurnee, Patty Jalowy, Lloyd Allen and John Rogers
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: July 26, 2012
- Adm. Review 043-2683: Substitute a previously approved swimming pool and patio in back of house with a 685 squ. ft. paver patio at 342 Monomoscoy Road
Resource Area:
Material submitted: Dane Residence 6/8/12 Maffei Landscape
Joe Theoharidis from Maffei Landscape explains that they are proposing to replace a previously approved swimming pool and patio with a paver patio for a total of 685 square feet. The proposed patio is smaller than the approved swimming pool & patio area.
Motion made, seconded and unanimously carried to approve the Administrative Review for 43-2683
- Adm. Review 043-2400: Add stairs from the ground to second floor deck & replace a 4’ x 4’ wooden hatch trap door with a 5’ x 6’ bulkhead for improved access to plumbing area at 12 Wheeler Road.
Resource Area:
Material submitted: Plot Plan – Hand Drawn 7/29/12 Owner
Robert Nahigian explains that they would like to add a set of stairs to the deck so that they can access the ground level from the deck. They would also like to add a bulkhead onto a small cottage on the property which would allow access to the basement. Agent McManus states that everything is within the previously approved footprint.
Motion made, seconded and unanimously carried to approve the Administrative Review for 043-2400
HEARINGS
7:00 Nicholas & Meghan Nardone **043-2703** (9 Compass Circle) Reconstruct and expand existing pool yard and landscaping which consists of removing existing wood deck, brick patio and replace with pavers, remove 12 trees, relocate existing pool fence, install retaining wall and mitigation plantings. Work also includes associated landscaping and minor grading - NOI
Resource Area: LSCSF, Buffer Zone to Coastal Bank, LUO, Salt Marsh and BVW
Material submitted: Site Plan 6/5/12 Warwick & Associates
[5:35] Barbara Frappier from Warwick & Associates explains that the property has patios, decks and mulch areas that are in disrepair and the owners would like to make it a safer area around the pool. They are proposing to remove the wooden deck and replace it with stone. Agent McManus states that the deck replacement work was already completed as it was a hazardous area. Ms. Frappier states that the patio will be expanded towards the back of the property in an area that is currently mulched. The applicant would like to move an existing chain link fence closer to the top of the coastal bank and remove 12 oak trees that are within close proximity to the house. Ms. Frappier states that
they are offering a wider buffer inside the fence which will be approximately 357 square feet of mitigation plantings and will also construct a small retaining wall to keep the grade level for the patio. Agent McManus confirms that the oak trees are all in close proximity to the foundation of the house with leaders right over the roof. All proposed changes are within a previously approved work limit and the only encroachment is the moving of the fence but they are planting mitigation in that area. Mr. Sweet is concerned about the area where the trees are being removed and what ground cover will be used. Mr. Nardone states that there will be no lawn on any of the property and plans on using wood chips.
Motion made, seconded and unanimously carried to Close and Issue
7:03 The Trustees of Reservations (South Sandwich Road) Maintain vegetation along “Boat Landing Beach” and “Seasonal Beach” in perpetuity which includes removal of all overhanging shrubs, branches and tree limbs - RDA **Cont’d to August 23rd @ 7:06pm**
[11:21] The applicant requested a continuance to August 23, 2012.
Motion made, seconded and unanimously carried to continue to August 23, 2012 at 7:06pm
7:06 William & Rebecca Power **Bylaw 12-01** (6 Deans Hollow Road) Tear down and rebuild a new three bedroom home with patio, steps, retaining walls, pervious driveway and landscaping – NOI **Cont’d to August 23rd @ 7:03pm**
[12:52] The applicant requested a continuance to August 23, 2012.
Motion made, seconded and unanimously carried to continue to August 23, 2012 at 7:03pm
7:09 Jeffrey Cohen (154 Fells Pond Road) Remove ten hazardous and declining trees and add various native landscaping areas – RDA
Resource Area: Buffer Zone to Inland Bank/ Fells Pond
Material submitted: Proposed Septic 6/17/11 (hand drawn) Ace Arboriculture
[13:41] Michael Hope from Ace Arboriculture explains that the homeowners are requesting approval to remove hazardous trees and replant the area with native plant material and also to add a small native screen between the two houses. Mr. Hope states that there is an area by the deck from previous construction that is disturbed soil and they would like to plant some native shrubs. Chairman Fitzsimmons asks about the hazardous trees and Mr. Hope states that all of the trees are approximately 11-14’ from the house and
hang towards and over the house.
Motion made, seconded and unanimously carried for a Negative Determination
- Tidewatch/Bayswater Update – Agent McManus explains that at the last meeting, the Commission had voted to send Enforcement Orders to both New Seabury Properties and Tidewatch Condominiums. At the July12th hearing, it was verbally agreed to have the filter fabric and 2 x 4’s removed from the piles on Bayswater beach and that has since been completed. Agent McManus states that at the last meeting he did not ask for a deadline date for Tidewatch for the beach nourishment to commence; it would be a mute point for Bayswater since their portion has been completed. Town Counsel stated that the Commission does not have the authority to tell Tidewatch to put their sand at a different location and if they wanted to then the Commission would require an Amended Order to do so. Agent McManus says that he spoke to Liz
Kouloheras from DEP to describe the project from the beginning when the two sides tried to work things out up to the current situation and Ms. Kouloheras agreed that the Commission was following the correct path. Ms. Kouloheras stated that having a verbal directive with Bayswater to have the filter fabric and 2 x 4’s removed was fine and did not require an Amended Order or Administrative Approval because it was a non-compliance issue that was resolved quickly.
Agent McManus states that Tidewatch owes a significant amount of beach nourishment and typically enforcement orders give two weeks for the notification period for the beach nourishment to commence. If no nourishment has taken place without some kind of compelling reason than the Commission can start issuing fines on a daily basis starting at the stipulated deadline. Two weeks from August 10th would be the issuance date for the Enforcement Order which two weeks from then will be August 24th as the compliance date to start the nourishment. The nourishment should take place twice a year; once in the fall and once in the spring. Tidewatch is required to place 1500 cubic yards once a year so the agent is recommending twice a year of 1500 cubic yards each to catch up. The agent
is not sure of what the access status is but states that Tidewatch is responsible to come up with their own access on their own property if access is not granted by New Seabury which will be as stated in the Enforcement Order. Chairman Fitzsimmons suggests allowing Tidewatch until August 24th to present a plan because if they decide that they would like to place the beach sand somewhere other than what it states in their current Order of Conditions than they will need to file an Amended Order of Conditions. The plans should include the nourishment schedule, where the sand will be placed and what access will be used.
Barry Fogel from Keegan Werlin is the representative for Tidewatch and states that they have been working with the Commission and working with New Seabury to coordinate the beach nourishment. Mr. Fogel states that they are still talking with New Seabury regarding the access, timing and quantity for beach nourishment. They had met with the Commission on July 12th and had made a lot of progress and was told that they would meet back at August 9th to carry it further but items were placed on the agenda for July 26th which they never received notice. Mr. Fogel states that there were some actions taken on July 26th without their presence and now Conservation Commission wants to direct Tidewatch through an Enforcement Order to bring a plan with all the information
required. Mr. Fogel states that Tidewatch will do that and that it is a reasonable approach but would prefer 30 days to submit such plan. Mr. Fogel would like to suggest that the plan contain an evaluation of the amount that has been provided over the years and a proposal for a catch-up process. Mr. Fogel states that he feels that the process is important because the Order of Conditions discusses beach profiling and making judgments about how and where to add nourishment based on what happens each year as the nourishment is provided. The profile will not change in front of the seawall at Tidewatch. Tidewatch has been having profiling done at the toe to see if there has been any scouring of the toe and how much sand would be needed in front of the wall. It was determined that the toe stones are stable and holding which is why Tidewatch was suggesting that it might benefit everyone if the sand was brought with coordination from New Seabury to their
property. Mr. Fogel states that the Order of Conditions says that in addition to using every effort to coordinate with New Seabury that any change of the beach nourishment will require an Amended Order so along with the plan that is now requested, they will include a request for an Amended Order to accommodate that. As far as Tidewatch is concerned, with its compliance, they will be very unlikely to appeal to Superior Court an Enforcement Order if it contained a condition that was to bring a plan with the quantity of what would be “caught up” and a proposal as to how it would happen. Chairman Fitzsimmons states that the Order of Conditions specifically indicates that the beach nourishment was to protect the bottom of the revetment. Mr. Fogel states that the revetment includes properties of New Seabury, Tidewatch and Colony Villas. He continues to say that Tidewatch has the ability to put sand in front of a number of properties in front of
the revetment. Mr. Fogel says that they were still talking to New Seabury about a global resolution over a number of matters; one of which was that they would accept sand on their property, past the revetment and if it requires an Amended Order then so be it but there was a provision in the Order of Conditions, both in the recent one and the one from 15 years ago to use “every effort to coordinate each nourishment with New Seabury”. Mr. Gurnee comments that beach nourishment in general recognizes that the point of it is not necessarily to protect the revetment or to make a beach in front of the property but to replace the sand that previously had washed away from the bluffs, which are now protected by the revetment, and to continue the appropriate flow of sand down the whole beach structure which is down to the Spit that was blocked off with this large wall. Mr. Fogel states that the nourishment has two purposes; one is to replace the quantity of sand
that the bank used to supply through erosion and also to protect the toe of the revetment but their consultant says, because of the stability of the toe stones and beach, it is a perceived benefit of starting the sand in front of New Seabury to create the beach there.
Mr. Fogel states that he spoke to Liz Kouloheras and Jim Mahala from DEP who said that in no uncertain terms that DEP did not approve the design of the timber boulder set up as is currently present. Mr. Fogel said that Mr. Mahala had told him that he told Tara Marden from Woods Hole Group that a minimum of one foot of spacing between timbers is what they would expect which is the two feet on center so if Woods Hole Group came before the Commission and told them that they had received approval for what they installed, than that is false information. Mr. Fogel also says that Ms. Kouloheras told him that she could write a letter to the Commission stating that this project does not meet performance standards and she’s not inclined to take enforcement action where a Certificate of Compliance has been issued. Mr. Fogel states that this is a regulatory decision that they may be making in their enforcement discretion but DEP told him that they did not approve this design and will not
approve this design. The second thing is the boulders in front of the wall; DEP told Mr. Fogel that if it is on the NOI plan and it was approved by the Commission and approved in a Certificate of Compliance than they will not step in at this point and take enforcement but Mr. Fogel says to the extent that the boulders are installed go beyond what is shown on the plan and is not approved work. Mr. Fogel states that to the extent that the Commission is issuing an Enforcement Order to Bayswater to remove the 2 x 4’s and fabric from behind, then the Commission needs to add a minimum, to bring this project back to the Order that was approved, than the boulders need to be removed to the point shown on the plan and the timbers changed to two feet on center.
Mr. Fogel states that they were trying resolve this with New Seabury since before the summer but then the seaweed issue arose and Tidewatch was willing to accept less if it happened quickly and New Seabury would not do it. Mr. Fogel now says the urgency to get something done that involves seaweed is long gone and so to the extent that this Board does not require New Seabury to correct the project to fit at a minimum of what the Notice of Intent shows; timbers 2 feet on center at a height above the beach that serves more as a drift fence than a wall then Tidewatch has asked him to evaluate what their options are if they were to go to court and look for a recourse if the Commission does not at least bring the project to the standards of the Notice of Intent. Mr. Gurnee asks Mr. Fogel what Tidewatch would achieve
or what the benefits would there be to have New Seabury’s plan match the original NOI. Mr. Fogel states that the idea behind the drift fence style or timber installation for toe protection was to stabilize the bottom of the envelopes without creating a solid barrier to the movement of water and sand and that is why DEP wanted two feet on center so that there would be a free movement of sand and water to and from the coastal bank. Mr. Fogel continues to say that Tidewatch has a beach easement for the people that own the condominiums at Tidewatch that allows them to go down those steps to a beach and if the project is not built properly, it is accelerating the wave energy and they are losing the sand which is exposing the coble layer. Mr. Fogel states that there is a performance standard that says no coastal engineering structure shall have an adverse affect on the flowing or function of the beach and Tidewatch is entitled as a beach easement holder to have
the regulations enforced properly.
Chairman Fitzsimmons states that DEP should be contacted to see where they stand. Agent McManus says they will clarify with DEP whether the project, in its current state, is a violation or not allowing performance standards to follow through; is it still allowing sand secretion to the beach.
Chairman Fitzsimmons states that it is unfortunate that these issues have not proceeded since earlier in the year so he suggests going ahead with the enforcement order/plan with Tidewatch and further discussing Bayswater after the agent speaks to DEP. Mr. Sweet asks if Tidewatch should come back on the 24th with their plan on how to fulfill the nourishment. Mr. Fogel asks for more time so that he can speak to his consultants to devise a plan; he asks for August 31st. The Chairman agrees so that it can be submitted prior to the first meeting in September.
Motion made, seconded and unanimously carried to approve a plan submittal deadline of August 31st and discussion at the September 13th meeting
- REMINDER: Richard Cook SOC Appeal – The superseding onsite is scheduled for August 22nd at 9:30am. They will start in Conference Room 1 for discussion from both parties and then proceed to an onsite. Ms. Jalowy asks if markers can be placed onsite and also suggests visiting Mr. Cook’s other operation in Ockway Bay.
- UPDATE: Johns Pond dock issues- Sakonnet Drive – Agent McManus explains that there have been a series of 10A floats converted into docks along the drivable portion of Sakonnet Drive. He would like to organize a sight visit with as many Commissioners that want to attend and take a look at the area. Sakonnet Drive is a paper road that abuts a portion of John’s Pond shorefront. Some portions of the road are under water but some are still drivable although it is unknown what the existing layout of the road actually is. Along one particular section, residents have anchored these walkways with cement blocks when they should be helical or mushroom bottom anchored. The Harbormaster is trying to bring them into compliance. Town Counsel has said that there are a lot of portions of Sakonnet
Drive where residents’ yards go right up to the water and it remains to be seen in the absence of professional surveying whether Sakonnet Drive still exists or is under water. Then there is an issue of where the portion of Sakonnet Drive that does exist; the homeowners have docks on the other side of the road. It needs to be legally clarified if they own up to the water or up to half of Sakonnet Drive but in the meantime, the Harbormaster has asked that the walkways/ramps be immediately removed. One woman in particular is refusing to remove the structure and has contacted an attorney who requested documentation that we may have authorizing the dock. The agent states that we have checked into it and we do not have any paperwork to provide to this attorney that will authorize the structure and he noted for the record that it is not our obligation to do research on her behalf. If she is making a claim than the burden of proof is hers.
- Mashpee National Wildlife Refuge: MOU/ CCP – The Mashpee National Wildlife Refuge is holding a meeting on August 10th if any of the Commissioners are interested. It will be at the Waquoit Bay Research Reserve at 2pm at the boathouse. They will be discussing the Memo of Understanding for the Partnership Refuge and also the Company Conservation Plan.
- 65 Seconsett Point Rd- Superseding onsite – Agent McManus had a superseding onsite with the Lingamfelter’s Notice of Intent; where the Commission denied the construction of a boathouse and additions to the existing home. The agent states that there is a 21 day deadline to issue the Order of Conditions. These Orders did not get issued within that time frame and Attorney Wall who was representing the Lingamfelters pointed to a legal precedent that states when Concom does not issue Orders within 21 days, all aspects of the bylaw are removed completely. DEP has no standards for flood zone. Mitigation requirements would also be dismissed. The agent states that it looks likely that this project will get a Superseding Order of Conditions for approval. The Lingamfelters are still willing to
provide mitigation as presented at the previous hearing. Agent McManus informs the Board that if Superseding Orders are issued, the Commission has the right to appeal them.
Agent McManus mentions that he will be on vacation the week August 13th through August 17th.
Mr. Gurnee asks about the kayak launch area at Pickerel Cove and Agent McManus states that they have met with the Town Manager, DPW Director and a representative from Mass Division of Fishing and Boating Access. Funding will be available for design next year.
Motion made, seconded and unanimously carried to adjourn the meeting at 8:14 pm. [1:19:34]
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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