Conservation Commission
Minutes of January 31, 2013
Public Hearings
Mashpee Town Hall - Conference Room 2
Commissioners: Chairman John Fitzsimmons, Brad Sweet, Mark Gurnee, Patty Jalowy, John Rogers and Steve Cook (Associate)
Staff Present: Drew McManus (Conservation Agent) and Kris Carpenter (Administrative Secretary)
Call Meeting To Order: 5:55 pm
The meeting was called to order with a quorum by Chairman Fitzsimmons at 5:55 pm.
There was no public comment.
Chairman Fitzsimmons states the meeting will be televised.
Pre/Post Hearing Agenda:
- Minutes: Approval of the following minutes: December 13, 2012 & January 10, 2013
- Land Stewardship (guest lecturers, upcoming events) – The Land Steward Program has arranged for four guest lecturers during February and March in the main conference room of the Town Hall at 7:00pm. The first speaker is Rick York who will speak of the shellfish propagation and nitrogen abatement scheduled for February 19th; Michael Wojtech who wrote a book titled Bark and will describe how to identify trees by their bark is scheduled for March 12th; James Turyk , a River Herring Biology and Conservation Specialist, will talk about herring runs and river herring biology is scheduled for March 19th; Matt Dudley a residential program coordinator from the Cape Cod Light Compact is scheduled for March 5th .
HEARINGS
6:00 Save Poppy Bay (0 Wading Place Road) Modifications to stabilize the coastal dune via a wooden zigzag sand drift fence**Continued from November 15, 2012**- AOC
Resource Area: Barrier Beach, Coastal Beach, LSCSF, Buffer Zone to Coastal Dune, LUO
Material submitted: Proposed Barrier Beach Dune Over Wash Stabilization 1/15/13 BSC Group
[3:05] Matthew Creighton from BSC Group explains that they presented at a previous hearing and the information tonight is an update. Mr. Creighton states that Natural Heritage requested that they remove the fence from the front beach and no longer have a path through the fence. Mr. Creighton says that there was an area of Ammophila that was wiped out when Sandy came through which now leaves an open flattened out area; they do not have any permits to restore it so it will remain as is. Agent McManus asks what the square footage of the fence is and Mr. Creighton explains the dimensions.
Motion made, seconded and unanimously carried to approve the request to amended the Order of Conditions for 43-2561
6:03 Donald & Teresa White **043-2720** (23 Waterline Drive North) Remove sixteen oak and pine trees from the site, install 1160 square feet of lawn within a previously cleared and mulched area **Continued from January 10, 2013**- NOI
Resource Area: LSCSF, Buffer Zone to Salt Marsh
Material submitted: Buffer Strip Restoration 1/8/2013 Vaccaro Environmental Consulting / Plot Plan of Proposed Landscaping 12/12/12 BSS Design
[7:25] Jack Vaccaro from Vaccaro Environmental Consulting explains that at the last meeting there was a displeasure over the number trees being removed so the homeowners have reduced the number. Mr. Vaccaro states that he submitted a revised plan that will save most of the trees within 50’ of the resource area but allow pruning of trees that are close to the deck (will consult with the agent). The trees that are being removed within the 50’ resource area are two pitch pines that are infested with turpentine beetle and two oak trees by the area of the sandbox. Bartlett Tree Experts submitted a comment that states the oak trees are not healthy and should be removed. Agent McManus asks if the
mitigation and lawn area that was on the original plan are remaining the same and Mr. Vaccaro confirms they are. The agent states the two letters; one from Bartlett Tree and the other from the abutting neighbor have been signed and placed in the file. Mr. Rogers asks how many trees are being removed and the agent states seven trees are being removed.
Motion made, seconded and unanimously carried to Close and Issue
6:06 Stuart McLeod (81 Seconsett Point Road) Rebuild damaged/rotting bulkhead wall in the same foot print ***WITHDRAWN – 1/31/13***- RDA
6:09 John Mullen **043-2721** (188 Pimlico Pond Road) Replace timber retaining walls and steps with stone masonry and to install a patio fire pit and stairs - NOI
Resource Area: Inland Bank, LUW
Material submitted: Buffer Strip Restoration Plan 1/16/2013 Vaccaro Environmental Consulting / Site Plan 1/7/2013 David C. Thulin
[13:40] Jack Vaccaro from Vaccaro Environmental Consulting explains the resource areas. Mr. Vaccaro states that there are three levels of retaining walls made from wood landscape ties which the homeowner would like to replace with masonry stone in the same footprint. The homeowner would also like to replace the timber steps on the left side of the house with granite steps. Mr. Vaccaro also explains that the homeowner would like to place a set of stairs and a fire pit/patio in the area up on the hillside between the deck and the first retaining wall. Mr. Vaccaro states there will be an increase in pervious surfaces so they have calculated an equivalent area of mitigation plantings. Agent
McManus questions the vista corridor that is shown on the plan but is not mentioned in the Notice of Intent and Mr. Vaccaro says there is no vista pruning requested and he will have the vista notation from the plan removed and resubmitted to the Conservation office.
Motion made, seconded and unanimously carried to Close and Issue pending receipt of revised plans eliminating the vista corridor.
6:12 Brad Sweet (13 Amy Brown Road) Remove three large Locust trees that are hazardous to dwelling and prune some front yard ornamental trees****Continued to February 14, 2013 @ 6:06pm****- RDA
[24:30] Applicant requested a continuance to February 14th.
Motion made, seconded and unanimously carried to continue to February 14, 2013 at 6:06pm
A. New Seabury – Enforcement Orders
Mark Gurnee gives a summary of the project stating that it has been problematic because of its uniqueness and lack of any history of success or failure for bank stabilization. Mr. Gurnee says that it has been on the marginal side of being acceptable although still an improvement so he has been documenting the project for the last three or four months. Mr. Gurnee took several pictures including pictures during the height of hurricane Sandy and states that the surf was not breaking over the wall but the water was above the base of the pilings and actively splashing over. There was a lot of sand loss at both ends and where the pilings were previously buried; they are now up about 6.5’ exposed. Most of the sand on the front side was lost during the storm and very minimal since then. Mr.
Gurnee says there is sand being damned up on the back side of the pilings; about 1’ – 1 ½’. Chairman Fitzsimmons states that he looked at it today and everything looked great. Mr. Gurnee says that there are little rocks getting stuck between the pilings and is concerned about the rocks long term because they will continue to pile up. He says there have been discussions of placing something between the pilings to hold them apart but the spacing is random and still getting jammed up with a bunch of rocks. It does not appear to be impeding the flow of sand though and that is what is important. Mr. Gurnee says at the end of the pilings as the same with other revetments/structure walls is a problem because of the erosion, especially after Sandy, and with this project the property next door lost their stairs. There is a very steep cliff that was badly eroded. Mr. Gurnee comments on a “mouse-bite” near the steps
at Tidewatch property where the sand is gone and for a while it was just heavy rock but is now covered with sand.
Barry Fogel, representative for the Board of Trustees for Tidewatch, briefly summarizes previous meetings and states that he thought after the last meeting it had been agreed upon the fact that there were boulders buried under the sand that were used as leverage for a length of 90’. Mr. Fogel says that one of their concerns is that since the boulders were placed, it appears that some of the smaller boulders tumbled out onto the beach creating a hazardous area and enhancing the wave energy that causes erosion. Mr. Fogel states that Tidewatch still requests the Commission to direct through some kind of Order that the boulders be removed from the full length of the wall. They (Tidewatch) are still an advocate for spacing the timbers with 2” spacers for top and bottom. Mr. Fogel states
that he would like to note that the third party consultant that the town engaged, Greg Berman, wrote back in October where he evaluated both Tidewatch and New Seabury’s project in which he spoke of the boulders and how they may be exacerbating wave energy should come out. Agent McManus reads Mr. Berman’s quote for the record and agrees that the boulders would be better served elsewhere. The agent says that Mr. Berman also mentioned the gravel that is accumulating behind the piles with each storm event and recommends 1” rubber spacers to ensure 1” spacing between the pilings. It will need to be monitored to be sure that the cobbles are not filling the voids and blocking the flow of water and sediment.
Robert Mills, representing Bayswater, states that he feels there is a couple of housekeeping matters that need to be attended to; an Enforcement Order had been previously discussed but since then, the 2 x 4’s and filter fabric have been removed. Mr. Mills says that he was under the impression that an Enforcement Order would be issued after the fact and then a Certificate of Compliance would be issued concurrently or immediately after indicating that they were in compliance. Mr. Mills states that after that happened, he thought the next step would be to consider the separation of the pilings but it may seem to be less an issue today than the last time everyone met. Mr. Mills states that some of the pilings are more than 2” apart. Mr. Gurnee states that there are many pilings that are not 2” and he is in agreement with Mr. Fogel about keeping the 2” spacing. Mr. Mills states they are not opposed to the rubber spacing but he feels that the first step should be completed first.
Agent McManus asks if he means the Enforcement Order and Mr. Mills confirms and states that they can then move on to the second step being the spacers. Mr. Mills says that in regards to the boulders that have been an ongoing discussion because the boulders were there and they relocated them as best they could to the location that they were taken from. Mr. Mills states that they recognize that the boulders have moved with wave action over the course of time and says that Joe Colasuonno said that it’s part of the annual maintenance.
Kurt Bosma, Coastal Engineer with Woods Hole Group, states that the surveyor had located some boulders originally but could not excavate the bank to see how many boulders were there. They suspected there were some and the plan simply stated that the boulders were not part of the design. The design read that if there were boulders as the bank was being uncovered than to place them as close as possible to where they were originally.
Mr. Fogel states there are minutes and recorded videos of prior meetings where these boulders were reviewed in great detail and determined that the boulders extended 90’ from the end of the revetment. Mr. Fogel states that they are not past this issue because there is still an extra 60-70’ of boulders and it was agreed upon that these boulders were not part of the design. Mr. Fogel says that Mr. Burman had commented that they are functioning as a wall.
Chairman Fitzsimmons states that the boulders seem to be the main issue right now. Mr. Colasuonno states that he feels the boulders are helping the wave action for the project but they had previously discussed the boulders should be tucked into the corner. Mr. Bosma states that he has no issue with removing the boulders and it would be feasible to relocate them in a good position but the question now is who will pay for it. Chairman Fitzsimmons states that the conclusion is to move the boulders to the corner and remove the ones that do not fit into the corner. Mr. Sweet states that if the boulders are going to be moved than there should be a plan/design submitted. Mr. Bosma says it is not simply moving the rocks; there needs to be an appropriate design with under layers and filter fabric.
Mr. Mills states that Bayswater gives their permission for Tidewatch to design and implement the work. Mr. Fogel says that it is agreed that the plan should have under layers and filter fabric and also whatever boulders cannot be incorporated into the corner should go off site. Chairman Fitzsimmons asks who will be preparing the plan and Mr. Fogel says that New Seabury will as it is their property. Agent McManus states that the Commission feels the boulders should be removed and the methodology to get it done would be for the Commission to issue an Enforcement Order to New Seabury dictating that the boulders be removed or relocated from the current location. An engineered plan must be generated to show how they will be relocated and it is not any concern of the Commission who pays for it.
Mr. Fogel comments on the timbers and requests the Commission to direct Bayswater to put the spacers in. Mr. Fogel also states that the plan shows two alternating rows of 12” diameter x 15’ long timber piles plus/minus 10’ of embedment but he had thought he heard from previous meetings that they were only able to drive them 5-7’. Mr. Bosma states that most of the piles were driven down 10’ but some could not be and were cut at the top so they wouldn’t extend too high. Mr. Colasuonno states that some of the poles have 6 inches between them and they will put the 1” spacers on but it will not constitute moving the poles. Agent McManus states that the spacers should be made a priority which will ensure that 1” spacing will always be maintained. Mr.
Colasuonno asks if it is 1” minimum and the agent confirms 1 inch. Mr. Gurnee says that he thinks it should be added that New Seabury should be diligent about keeping sand over the sand bags as it is critical for protection and critical for keeping sand on the beach. Mr. Gurnee states that it should be made a requirement to replenish when the bales are exposed. Chairman Fitzsimmons says that would involve changing the Order of Conditions and suggests letting it go for approximately a year or so and then they could determine what is needed in the future. Agent McManus states that they are required to profile and also notify the Commission for each time they replenish. The agent also says that one of the suggestions from Mr. Berman was to have quarterly profiling instead of annual profiling.
Agent McManus states the issue now is to authorize the issuance of two enforcement orders; one to recognize the removal of filter fabric and 2 x 4’s from New Seabury property and the second to order the removal of the boulders from their current location; whether to be relocated or removed completely. If the boulders are to be relocated than it should be accompanied by a Notice of Intent and engineered plan. This enforcement order will also include the installation of rubber spaces to ensure a minimum of 1” spacing.
Motion made, seconded and unanimously carried to approve the issuances of both enforcement orders as stated by the agent
B. Tidewatch – Beach Nourishment
Agent McManus states that Mr. Berman’s report suggests that it does not do any good to attempt to figure out what the parties involved were thinking in the 1993 Order of Conditions and how they had come up with the 1500 cubic yards per year. The agent says that he believes there was some kind of professional input to arrive at that amount but the recommendations from Mr. Berman are all in the report. The agent states that the Order of Conditions [file # 43-1166] contains no profiling information, notification dates and no staking of any kind for the record. Mr. Fogel had submitted slips from E-Z Doze It showing delivery of sand to New Seabury; 28 yards per load. Agent McManus states that although that is proof of delivery, the Order of Conditions has specific orders of beach profiling, seven-day
prior notification, staking in the field as well as sand grain analysis and none of this documentation has been submitted since 1993.
Mr. Fogel states that he would like summarize what he knows; the Order 43-1166 that was issued in 1993 did not have a beach nourishment requirement but it was amended in 1995 where the 1500 cubic yards was added. Mr. Fogel says that at that time, New Seabury owned the condominiums. In 1997, the Order of Conditions was issued for 43-1552 for revetment work which carried forward the 1500 cubic yards but the prior Conservation Agent issued documentation that stated to hold off the nourishment until a regional nourishment plan was issued. The records from BSC Group who was working with New Seabury at the time included a summary of the beach nourishment that had been done during that period which summarizes approximately 1700 cubic yards was placed during the course of 1998, 1999 & 2000. Mr. Fogel
says in 2000, a partial Certificate of Compliance was submitted because some of the condo units were being sold and then a complete Certificate of Compliance for 43-1552 was issued in 2001 with perpetual conditions that did not include the beach nourishment. He states that for over 10 years, 2001 to 2011, when the current Order of Conditions 43-2644 was issued that there was no beach nourishment obligation during that time but even if there had been, they had given Drew records from E-Z DOZE IT from some revetment repair around 2004-2005. Mr. Fogel states that E-Z Doze It brought in about 4200 cubic yards at that time so there is a history of about 6000 cubic yards brought in between 1998 and 2005. Mr. Fogel states that Mr. Berman’s report concurs with the analysis that Les Smith, Coastal Geologist from Epsilon Associates and Don Monroe from Coastal Engineering, did where they determined that coastal bank retreat translated into a mitigation requirement
would have been the equivalent of 360 cubic yards annually. Mr. Fogel states that this is consistent with the other Order of Conditions that the Conservation Board issued to other properties further east. Mr. Fogel states that there have been Certificate of Compliances issued for all but one of the properties east of Tidewatch that eliminated beach nourishment requirement as a perpetual requirement which may be contributing to the shortage of material for the whole system. Mr. Fogel says that the current Order of Conditions that has the 1500 cubic yards is an open Order and based on the information that they provided and the information that Mr. Berman concurs with; it is their suggestion that they would propose to file a request for a Certificate of Compliance for the project that would put the 360 cubic yards annually in as a perpetual requirement for Tidewatch as well as the annual profiles and related provisions. Mr. Fogel notes that the requirement
should be for a minimum of 360 cubic yards based on profiling. Mr. Fogel states that there is a condition in the Order to coordinate with their neighbors on beach nourishment which they are prepared to do; they have tried to negotiate access with New Seabury which is a pending item and most likely waiting for resolution of other items. Mr. Fogel says that they are prepared now to add 360 cubic yards to New Seabury to contribute to stabilization of the core envelopes and add sand on the beach where Tidewatch owners have an easement.
Agent McManus states the Orders for 43-1552 does have an ongoing condition for beach nourishment; special condition #15 states that it shall be extended beyond the Certificate of Compliance in perpetuity. Mr. Fogel states that when you do the math; 360 cubic yards which is what they believe to be the appropriate calculation over a 17 year period, would translate to approximately 6800 – 8000 cubic yards that has been provided. Although not annually spread out, Tidewatch and its predecessors have already provided an average of about 300-360 cubic yards annually. Mr. Gurnee states that 4000 cubic yards has already been lost in one year. Mr. Fogel says that some years they do not lose any and other years they lose a lot so it is the long term average that is calculated.
Agent McManus states that the documentation that Mr. Fogel submitted summarizes that Tidewatch will begin to place 1500 cubic yards annually between September 15th and April 15th on the revetment at Tidewatch if coordination has been received from New Seabury/Bayswater and a portion of that volume will be placed on the coastal bank and beach at Bayswater. Mr. Fogel says that report is from August and is out of date. There has since been a report issued in January 2013 that supersedes the August 2012 report which has the analysis from the coastal geologists that Tidewatch hired. The agent reads a report from the Phoenix Group of various sand deposits during the years of 1998 – 2000 but none contain any specific dates. Agent McManus says that he does not doubt all the sand
deliveries but because there is still a lack of profiling information, it is hard to determine if it applies to the Order of Conditions requirements or if it applied to the revetment repair. Mr. Fogel states the Order of Conditions 43-1552 supersedes 43-1166. The agent states that he will contact Town Counsel to see if one Order of Conditions supersedes another Order that was issued prior with the annual 1500 cubic yards of beach nourishment.
Don Monroe from Coastal Engineering states that they had been hired by Tidewatch in 2009 over concern of the revetment so they had started profiling at that time. Mr. Fogel says that they can submit the profiling documentation which shows a very small amount of profile change in front of the toe stones.
Mr. Fogel states they propose to have a perpetual condition in a Certificate of Compliance for 360 cubic yards annually along with the profiling requirements. Agent McManus reads the ongoing conditions from 43-1166. Mr. Fogel states that Mr. Berman suggests a 125% catch-up of 450 cubic yards. Chairman Fitzsimmons states that Mr. Berman actually wrote in his report that it is up to the Commission to determine if it should be 360 cubic yards or 1500 cubic yards or even somewhere in between. The Chairman continues with Mr. Berman’s report which says that since 2005, approximately 2,500 cubic yards has been denied to the coastal system and Mr. Berman’s suggestion is to not stretch out the “catch-up” part over 10 years. Mr. Fogel states that that paragraph is from an earlier
memo and is not in the final conclusion from January 29th which suggests that the Conservation Commission may want to consider applying a multiplier of 125% (to 360) equally to 450 to the catch-up volume in order to assist the resource recovery. Agent McManus states that it will come down to a vote from the Commission on how relevant Mr. Berman’s input is. The agent would like to clarify from Town Counsel if one Order of Conditions nullifies a previous Order of Conditions.
Tara Marden from Woods Hole Group believes she can explain the 1500 cubic yard requirement for Tidewatch. Ms. Marden explains that she has a lot of clients in that area since 1999 and she states that she monitored the reconstruction of the revetment 2005. Many of her clients have beach nourishment requirements; one in particular has a revetment of 120’ long with a beach nourishment requirement of 330 cubic yards per year. Ms. Marden states that there was a study done in the early 80’s of the erosion rates by Dave Aubrey who used two sets of photographs and came up with two average erosion rates between two different time frames; 1938 to 1962 the bluffs were receding at approximately 2 feet per year. When most of the structures were being built in the 70’s and 80’s, the bluff
erosion increased to almost 4 feet per year. Ms. Marden also says that two international scientists from Woods Hole Group also did a thorough investigation and the numbers that they came up with for beach nourishment for homeowners on Triton Way, which was filed as an ENF (Environmental Notification Form) with NEPA in the Department of Environmental Protection, were 2.8 cubic yards per linear foot of revetment per year. Ms. Marden states that every person along Triton Way that applied for a permit had the same exact nourishment requirement and if you use that same calculator (2.8 cubic yards per linear foot) than that is the 1520 cubic yards per year for Tidewatch. Ms. Marden states that she only just submitted the report to Mr. Burman who in response to her said that he thinks it makes sense and that he wished he had received it before. Ms. Marden also states that in 1997 Woods Hole Group met with Rebecca Haney of CZ Management, Jim Mahala of DEP, Bob Sherman of
the Mashpee Conservation Commission, Norm Hayes of BSC Group and Bob Hamilton of The Woods Hole Group who went through the numbers again and issued a memo that was specific to certain people on Triton Way that said they were going to maintain the 2.8 cubic yards per linear foot for the beach nourishment based on the studies of the past.
Agent McManus states that there are two issues; one is for legal counsel to clarify an ongoing condition in a COC and whether or not that is nullified by a subsequent OOC and the other is for Ms. Marden to submit her information to the Commission in better form.
Tim Shea, resident of Tidewatch, comments on other properties that do not have beach nourishment and would like to request to the Commission to apply the same standards to them for the same amount of nourishment at the same time each year which could help the system.
Chairman Fitzsimmons states that it is a complicated issue and asks for a continuance to review the new information.
Motion made, seconded and unanimously carried to continue to give all parties the option to review new information
- Americorps Week: May 20-24th
Americorp will be sending their entire fleet of volunteers and among the projects are: Rick York with his shellfish propagation program, to build several kiosks for conservation parcels and install multiple pollinator gardens along with conducting a massive cleanup of John’s Pond. Mr. Gurnee asks if Mr. York’s shellfish program should be permitted and Agent McManus says that he will look into it.
Agent McManus states that the gates have been installed and locked. One of the gates might need to be moved or at least supply a key to a private land owner. The agent says the gate is located such as one side is on DCR property and the other is Mashpee but further down the dirt road is a privately owned parcel.
Motion made, seconded and unanimously carried to adjourn the meeting at 8:07 pm. [2:08:53]
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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