Conservation Commission
Minutes of September 26, 2013
Public Hearings
Mashpee Town Hall
Waquoit Meeting Room
Commissioners: Ralph Shaw, Mark Gurnee, Robert Anderson. John Rogers and Brad Sweet, Louis DiMeo (Associate Member)
Staff Present: Drew McManus (Conservation Agent) and Judy Daigneault (Recording Secretary)
Call Meeting to Order: 5:55 p.m.
The meeting was called to order with a quorum by Acting Chairman Shaw at 5:55 p.m.
There was no public comment
Pre/Post Hearing Agenda:
Approval of Minutes: August 22, 2013
Brad Sweet moved, seconded by John Rogers to approve the minutes of August 22, 2013. Vote was unanimous.
Administrative Approval, 138 Waterway (Installation of pool within existing patio layout)
Attorney Michael Khoury represented the prospective purchasers of the property, Brian and Nicole Clark.
Attorney Khoury explained that one of the conditions of the buyer’s purchase and sale agreement is confirmation that a permit will be available for the construction of a swimming pool in accordance with the plan submitted. He stated in 2001 an Order of Conditions was issued and the work permitted was demolition of the existing residence, construction of new 4 bedroom residence with pool, septic system and retaining walls. The pool was never constructed but a patio and a spa were constructed in the location where the pool was to have been installed. A Certificate of Compliance for this Order of Conditions was issued by the Conservation Commission on January 28, 2003. The buyers wish to install a pool in the same location as the patio and spa. He referred to a letter from the pool installer indicating that
all components of the pool will be located within the retaining wall and patio area.
Agent McManus said the Order of Conditions have closed but given the unique circumstances that the pool was previously approved, those Orders still address the pool so there is no need for an Amendment. He noted that the pool was not presenting any additional ground disturbance or any additional encroachment to the resource area so there was no need to go through an Amendment order of request. Mr. McManus suggested that Administrative Review would be the best avenue for this proposal. He said it could be approved administratively and the plan would be added to the record showing that the pool is part of the property layout.
No Public Comment.
Mr. Sweet moved to approve the administrative approval of the 138 Waterway modification, seconded by Mr. Rogers, Vote unanimous.
HEARINGS
6:00 Patricia A. Cowhig, 3 Bight Circle. Proposed installation of vinyl sheet bulkhead landward of the coastal bank bordering Popponesset Creek. NOI
Resource Area: LSCSF, buffer zone to coastal bank/salt marsh
Material Submitted: BSC plan of proposed bulkhead
Matt Creighton, BSC Group, represented the Cowhig’s request to install a vinyl sheet bulkhead. Mr. Cowhig was concerned about losing his land. Mr. Cowhig’s bulkhead would be connected with the neighbors’ bulkhead. Proposal calls for a 120 foot long vinyl sheet pile bulkhead tied in with the neighbors’. Mr. Creighton reviewed the plan. The bulkhead will go on top of the coastal bank, keeping the salt marsh and sandy coastal beach areas intact. Everything would be installed from the water side from a barge. The height of the wall would be anywhere from 6 to 8 inches.
Agent McManus noted that normally when it comes to bulkheads a side profile view is shown on the plan of record. Mr. Creighton said he would submit one. Mr. McManus stated he would recommend a continuance until receipt of the revised plan showing exact location of the dead-men. Commissioner Gurnee requested that the trees also be shown on the revised plan.
Agent McManus asked if there were any considerations given to a soft solution. Mr. Creighton said their objective was not to come into contact with the resource area. There was a discussion about the beach area. Agent McManus said he believes sea grass is supposed to be planted there. He recommended a continuance.
No comments from the public.
Following a brief discussion, Mr. Anderson moved to continue the hearing for Mr. and Mrs. Cowhig, 3 Bight Circle, to the October 10 meeting at 6:00 p.m., seconded by Mr. Rogers. Vote unanimous.
6:03 Robert O. and Karen A. Nahigian, 12 Wheeler Road. Proposed installation of gas line by National Grid. RDA
Resource Area: Buffer Zone to Freshwater Wetland/Bordering Land Subject to Flooding
Material Submitted: Mashpee Assessor’s map of 12 Wheeler Rd (edited)
Robert Nahigian explained to the Commissioners he has been working on building a house since 2006 and it is time to heat it. The proposal calls for installation of a gas line down the driveway. He shares a driveway with a neighbor and he has an easement. The neighbor has sent him a letter giving him permission for the gas line. Agent McManus distributed the letter from the neighbor. Mr. Nahigian stated that he will contact Dig Safe before proceeding with the proposal. Agent McManus recommended a Negative Determination.
No comments from the public.
Motion made by Mr. Anderson, seconded by Mr. Rogers for a Negative Determination. Vote Unanimous.
6:06 Bayswater Seaside II LLC, 108 Shore Drive West. Proposed construction of vinyl fence on property line. RDA
Resource Areas: Buffer zone to coastal bank
Materials Submitted: Plan of proposed fence (Woods Hole Group)
Tara Marden, Woods Hole Group, represented Bayswater and requested permission to allow for construction of a vinyl fence on property located at 108 Shore Drive West. She explained the project is to permit a previously constructed Edgartown Style vinyl fence along the property line between 108 Shore Drive West and 94 Shore Drive West. The fence is approximately 377 feet long, of which 100 feet lies within the buffer zone of the coastal bank. She noted the rail system of the fence is 6’ tall by 8’ wide and the posts are 7’ tall. The applicant requested that Fire Chief George Baker view the fence while it was under construction to make sure that the fence did not impede Fire Department access. The fence has already been installed. The Fire Chief determined that the fence created
little or no impediment to Fire Department access. Agent McManus has also visited the site to view the fence. The purpose of the fence is to keep people off of the coastal bank. Agent McManus recommended a Negative Determination.
No Comments from the public.
Motion made by Mr. Anderson for a Negative Determination, seconded by Mr. Rogers. Vote was unanimous.
6:09 David P. Twomey, 34 Spoondrift Way. Proposed construction of a retaining wall to minimize erosion.
Resource Area: Land Under Ocean, Coastal Bank, LSCSF
Material Submitted: 34 Spoondrift Way
Mark Burtis, Little River Dock Construction, represented the Twomey’s. The existing stone armament was licensed by DEP under license 6722. Mr. Burtis stated that the stone revetment wall has failed. He explained that the project calls for construction of a wooden retaining wall to minimize the existing erosion. The stones on the bottom would be pulled up and moved to the back and a wood bulkhead wall would be constructed to traverse the entire length of the property. Agent McManus noted there is significant washout. It has a standard Chapter 91 License and recommended the RDA. Mr. Sweet said it would be helpful if one snapshot of the front of the house was provided so they could figure out exactly where the project is. Mr. Gurnee was concerned about the trees. Mr. Burtis said
he doesn’t cut the roots. Mr. McManus said the Commission could add Conditions to the RDA. Mark Burtis said he puts native gravel crushed behind the wall and then plantable soil on top. The fabric cloth is put up against the wall to help with filtration. Mr. Gurnee said he would like to see these details on the drawing. Agent McManus requested a revised plan along with a planting list which is a requirement in the Commission regulations.
Mr. Gurnee asked why this proposal was filed under an RDA. Mr. McManus said it was because it had a Chapter 91 license. He said that if the Commission feels it should be a NOI, it is within their purview to do so. Mr. Anderson said the Commission needs to establish if this proposal comes under an RDA or NOI. Agent McManus noted the Commissioners have two choices. They can issue a positive determination which would require a submission of a Notice of Intent or issue a negative determination which would not require a Notice of Intent and allow the project to go forward as an RDA. Agent McManus said one of the main purposes of a Notice of Intent is that it gives the Commission the legal authority based on a recording of a legal document to legally enforce the Conditions. It also covers a lot of other
aspects of the job, such as ensuring that debris is properly disposed of and mitigation plans survive for a certain period of time. All of these things get written into an Order of Condition which gets recorded. The Commission does not have that authority with an RDA filing, which makes it much more difficult for the Commission to enforce if a project is not done correctly. Mr. Anderson questioned RDA vs. NOI. He was hesitant to say all projects touching the resource area will need an NOI permit. There was much discussion and Mr. Sweet recommended this project should be a NOI as well as others further down the agenda.
No comment from the public.
Motion made by Mr. Sweet to issue a positive determination, seconded by Mr. Rogers. Vote was 4-1 with Mr. Anderson voting in the negative.
6:12 Peter and Linda Connly, 172 Waterway. Rebuild fixed pier and floatation dock with gangway with the same foot print.
Resource Area: Land Under Ocean, LSCSF, Salt Marsh
Material Submitted: 172 Waterway
Mark Burtis, Little River Dock Construction, was representing the Connly’s. This is an old dock dating back to the ‘60s. Everything would be removed and a dock would be built within the same footprint. The dock would be elevated and salt grass would be installed. The applicant addressed the Harbormaster’s concerns regarding the identification of the property address. Agent McManus stated that if he finds violation of the performance standards during his inspections, he will notify the Commission. Agent McManus recommended a negative determination.
No comments from the public.
Motion for a Negative Determination was made by Mr. Sweet, seconded by Mr. Gurnee. Vote unanimous.
6:15 Robert J.V. and Donna Roche, 6 Great River Road. Rebuild bulkhead wall within the same footprint. RDA
Resource Area: Coastal Bank, Buffer Zone to Saltmarsh
Material Submitted: 6 Great River Road
Mark Burtis, Little River Dock Construction, represented the Roche’s request to rebuild a bulkhead wall within the same footprint. The wall is eroding from the front. He said the following hearing goes hand in hand with this proposal. The navy wall would go a little bit above the elevation. He said he built similar walls under RDAs. The salt grass builds up in front of those walls. Agent McManus asked the Commissioners to think about other projects coming before them the importance of establishing a decision which would apply to similar projects that occur in these resource areas. Agent McManus recommended a positive determination.
Mr. Anderson was concerned about changing the rules and said he would prefer to come out with clear guidance of what is an RDA and what is an NOI. Agent McManus said the rules are not being changed or altered. The reason he recommends filing an RDA is based on his uncertainty in assessing a particular project without the Commissioners’ input. This allows the Commissioners to allow the proposal to proceed as an RDA or to determine that the application should be a NOI based on its proximity to a resource area. An RDA’s purpose is to allow the Commission to ascertain whether or not a project should be conditioned based on the potential impacts to the resource area. It is a decision-making mechanism. He said he understands the Commissioners’ position that they want to be able to oversee
the project.
Public
Mr. Robert Roche, homeowner, was under the impression when he applied for this wall in the late ‘90s that he would be allowed to maintain it and said that he was a little bit confused. He agreed with Mr. Anderson regarding his opinion on looking at projects on their own merit. He didn’t understand why he is not able to maintain this wall and improve it without going through the NOI process. He said a lot of the marsh grass is being created due to the fatigue of the wall.
Agent McManus said this project is replacing what is currently in place. If Mr. Roche wants to take a maintenance approach then he could present with that type of petition. Mr. Burtis said the reason they are building a wall is because of the erosion and a yearly history of maintenance. Agent McManus explained there would be a change in the application for an NOI with a minor inconvenience, which allows the Commission to have more oversight on the project. Mr. Roche said he understands. Mr. McManus just wanted to make it clear that nothing is being changed in the regulatory language.
Motion made by Mr. Sweet to issue a positive determination, seconded by Mr. Gurnee. Vote was 4-1 with me Anderson voting in the negative.
6:18 Jeanne C. Mantel, Trustee, 8 Great River Road. Rebuild bulkhead wall within the same footprint. RDA
Resource Area: Coastal Zone, Buffer Zone to Salt Marsh
Material Submitted: 8 Great River Road
Mr. Mark Burtis, Little River Dock Construction, was representing the Mantel family. Mr. Burtis stated this project is similar to the one in the previous hearing. Agent McManus recommended a positive determination (project should be conditioned).
No comments from the public.
Motion made by Mr. Sweet to issue a positive determination, seconded by Mr. Rogers. Vote was 4-1 with me Anderson voting in the negative.
6:21 Brian J. and Dawnmarie Jadul, 25 Ocean Bluff Drive. Proposed construction of pool and deck as well as an elevated walkway to provide beach access. NOI
Resource Area: Coastal Bank, Coastal Dune, Coastal Beach LSCSF
Material Submitted: 25 Ocean Bluff Drive
Scott Goddard, Goddard Consulting, was representing the applicants along with Mike Coutu of Sudbury Design Group. DEP has issued file number 043-2747. He presented a plan of the present conditions and a plan of the proposed conditions.
Mr. Goddard said this is part of the New Seabury area and sits high up on a coastal dune. The resource areas are land subject to coastal storm flow, coastal beach, coastal bank and coastal dune. Mr. Goddard reviewed the existing plan. He then reviewed the proposed project to construct a negative edge pool and deck in the existing backyard patio and lawn area as well as to construct an elevated walkway through the existing vegetated coastal bank and dune to the beach. He said the pool and deck are proposed within the 100 foot buffer zone to coastal bank and the walkway is within the protected coastal bank and coastal dune area. The walkway will consist of specific decking to allow sunlight to reach the vegetation underneath and prevent erosion. Some vegetation would be removed from the coastal bank and dune
to allow for pilings to be installed. He explained a small amount of dune grasses may be impacted by foot traffic from the walkway to the coastal beach. An erosion control barrier will be placed alongside the extent of construction for the pool and deck to protect the bank and dune. All the work will be using the existing landscaping to reconfigure the landscaping. A new access point will be created from the residence out to the beach area through an elevated walk and deck system with a viewing deck and a space for storage. A fence going around the whole site will be installed. Mr. Goddard showed a graphic of the proposed final project.
Mike Coutu, Sudbury Design Group, said this project that will be completely done by hand. The pool will elevated slightly. A salt base system for the pool will minimize the amount of chlorine chemicals that will be used. Installation of a cartridge filter system will minimize any chemical infiltration into the buffer zone. The proposal is scheduled to appear before the ARC (New Seabury Architectural Review Committee) on Tuesday. He noted the houses are very close together and neighbors cut across their terrace to access the beach. This proposal will stop that practice so they have their own access to the beach.
Agent McManus had concerns about the walkway and its width. The Commission, when it comes to regulation 29, tries to promote the implementation of 4-foot pathways from beginning to end. There are provisions that allow for paths that are wider than 4 feet which can be approved under an RDA or NOI. Mr. McManus said he could not endorse a proposal for two deck areas along the length of this walkway. He said that would result in more removal of vegetation along the coastal bank which could destabilize the bank and increase erosion. If an applicant asks for clearing beyond what is in the regulations, he must demonstrate compelling need (aka request a waiver of the requirements). The regulations encourage minimal invasion of vegetation removal in a resource area. Regarding the storage area, Agent McManus
felt there could be other accommodations, such as side railings on the upper portion without building an entire deck area. Agent McManus stated he would not recommend approving this project. He would recommend a continuance or denial. If the Commission voted to continue, the applicant would need to come back with a revised plan that shows a 4-foot wide walkway. At the top of the bank there is a row of ornamental plantings that would be encroached upon. It is up to the Commissioners whether they consider the proposed storm water infiltration system as mitigation for the pool encroachment closer to the top of the coastal bank. This site has a history of unauthorized vista clearing. There are a lot of stunted trees on the bank so if the applicants wish to maintain that view, Agent McManus recommends submission of an NOI application to continue to maintain the established view corridor. They could amend their application to include this. Agent McManus had questions on the
fencing which would create more disturbances on the coastal bank. He said that as much of the vegetation on the coastal bank as possible should be protected. Mr. Coutu said he knows the applicants would have no problem modifying the fence and they are more than willing to do what the Commission recommends to protect the mitigation. Agent McManus recommended a continuance based on his comments. Mr. Gurnee reiterated among the changes are a 4-foot walkway and mitigation plantings. He also stated that the Commission does not permit observation platforms on the bank or large platforms on the beach. There was a discussion how far the fencing will go down the bank.
No comment from the public.
Motion made by Mr. Sweet to continue the hearing until October 10, at 6:03 p.m., seconded by Mr. Rogers. Vote was unanimous.
Agent McManus requested that the Commissioners release funds for two conservation land signs which have degraded over time. Jehu Pond Sign and David G. Sharpe Santuit Pond Conservation Area sign. Estimate is $800 per sign which includes installation.
Motion made by Mr. Sweet to release $1,600 from the Acquisition and Land Account for the replacement of the Jehu Pond Sign and David Sharpe sign. Seconded by Mr. Gurnee. Vote unanimous.
Agent McManus stated he needs a roll call vote to discuss the Shore Drive West Projects.
Roll call to authorize this request. Mr. Rogers, yes; Mr. Sweet, yes; Mr. Shaw, yes; Mr. Anderson, yes; Mr. Gurnee, yes.
Mr. McManus referred to a letter from Mark Gildea representing the occupants of 118, 124 and 126 Shore Drive West. He said that the Conservation office has 21 days to issue permits (from the date that the Commission approves them). The applicants are requesting an extension until Thursday, October 31. They are voluntarily waiving the 21 day statute. After consulting with legal counsel, Agent McManus said there is a case law that a Commission could, if the applicant voluntarily is willing, extend the 21 day issuance deadline and if it became a matter of public record and all interested parties were notified. He sent a letter to Mr. Gildea. The request before the Commission is to extend the issuance date to October 31. The reason for the extension is to allow the applicants an opportunity to
negotiate with Tidewatch and avoid an appeal.
Motion to approve the request of the Liatsos, Pinchin, and Southwich to extend to October 31, seconded by Mr. Gurnee. Vote was unanimous.
Motion made and seconded and unanimously carried to Adjourn.
Meeting adjourned 8:10 p.m.
Respectfully Submitted
Judy Daigneault
Recording Secretary
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