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Conservation Commission Minutes 03/27/2014
Conservation Commission Minutes
March 27, 2014
Mashpee Town Hall
Waquoit and Ockway Meeting Rooms

Commissioners: Board Members Ralph Shaw, John Rogers, Mark N. Gurnee, Brad Sweet, Robert Anderson, Dale McKay, and Associate Member Louis DiMeo.

Staff Present:  Conservation Agent Andrew McManus and Administrative Secretary Cynthia Bartos.

CALL MEETING TO ORDER:  5:55 p.m.   The Meeting was called to order with a quorum by Acting Chairman Ralph Shaw at 5:55 p.m.

PRE/POST-HEARING AGENDA:  

Minutes:   Approve March 13, 2014 Minutes.
Motion: Brad Sweet made a motion to approve the Minutes of March 13, 2014, seconded by Mr.  Rogers.  Vote was unanimous.

Administrative Review: 403 Great Oak Road, SE 43-2481. Proposed changes: locate dwelling further away from the Resource Area and cantilever deck with concrete pier footings.
Matt Costa, Costa Associates, represented the request and stated that the new house will be further away from the wetland.  There will not be a change in the limit of work.  The Board of Health has approved the proposed septic system.  

The Agent said that the scope of the changes is minor and is within the previously approved work limit.  The proposed house will be located further away from the resource area with a smaller footprint.  This coastal bank is by slope definition only and not a sediment source for downdrift resource coastal areas; therefore, there will be no adverse effect with the proposed cantilevering of the deck.  He recommended approval of the Administrative Review.  

Motion: Mr. Sweet made a motion to approve the Administrative Review, seconded by Mr.  Rogers.  Vote was unanimous 6-0.    

HEARINGS:

6:00  Ann Marie Dumais, 372 Monomoscoy Road.  Proposed pier, ramp and float.  Continued from January 9, 2014 at request of engineer.  NOI.

Resource Areas:  Land Under Ocean, LSCSF (Land Subject to Coastal Storm Flow), Salt Marsh, Bordering Vegetated Wetland, Coastal Bank, Land Containing Shellfish.

Mark Burtis, Little River Boatyard, represented the Applicant and said that the homeowner bought this waterfront property with the intent of building a pier, ramp and float.   It will consist of a 12’x48’ elevated fixed pier with a gangway down to a float with 12 piles on Great River.  Harbormaster Stephen Mone has approved the proposal.  Shellfish Constable Rick York requested additional piling for the float stops.  He explained that the float stops are constructed to allow for shellfishing during low tide.  

Mr. Burtis said the presence of a waterline that goes from South Cape Beach Estates to an easement in close proximity to the proposal poses a potential problem.  The exact location and depth of the waterline is unknown, but he will take great care to avoid it.  
The Agent read the following letter from Andrew Marks, Operations Manager of the Mashpee Water District addressed to the project Engineer:
“At your request, please consider this letter the opinion of the Mashpee Water District regarding the proposed dock at 327 Monomoscoy Island Road. As you know, there is an HDPE water main under the property that continues under the river and over the mainland.  Unfortunately, it is impossible to know the exact location of the water main.  If the water main is damaged, it would be impossible to repair.  As discussed, I believe with great care and proper methods damaging the water main can be avoided.  I feel confident if you are able to work with the contractor installing the dock and they follow your advice the dock can be installed without any problems.”

Following up on this letter, the Agent learned from Mr. Marks in the event the water main is damaged, that water to Monomoscoy Island would have to be shut off and the replacement pipe would cost from .5 million to 1 million dollars.  

The Agent said that the design of the dock meets the performance standards for the resource areas.  He said that there should be restriction on the size and location of the boat.  He suggested a demonstration of the jet washing on a similar material pipe showing that it won’t damage the pipe by using that methodology in the field, contacting Dig Safe and posting insurance to cover any damages that may occur during installation of the dock and pier.  If the Board approves the project, the Agent said that Conditions can be included in the Order of Conditions to ensure safe construction, such as hiring of outside consultants under M.G.L. Chapter 44 Section 53G to monitor the project; that the Conservation Department will work closely with the Building Department; that the project is contingent upon Building approval, and that all reasonable steps will be taken to avoid damaging the water line.  He said that he would ask for the Commissioner’s input after compiling a list of Conditions.  The Agent also recommended seeking Town Counsel advice.  If the Board denies the project, the Decision could be based on lack of sufficient information (lack of specific locale of the water pipe).

Mr. Anderson said that this is the owner’s project and that it is the responsibility of the Building Department to ensure safe construction.  Mr. McKay expressed concern with disturbance to the bottom and the potential for damage to the environment.  Mr. Burtis said that some of the sediment has to be displaced.  The Agent said that there are exemptions in the local wetland bylaw and State Wetlands Act when public utilities are involved.       

Shellfish Constable Rick York said that the float is in shallow water and he would require that boats be restricted to docking on the south side of the dock and that draft shall be limited on the north side to less than two feet of draft.  

Motion:  Robert Anderson made a motion to close and issue, contingent upon obtaining Town Counsel opinion and assurance from the Building Department that this project can proceed safely, seconded by Mr. Sweet. Votes: 4-2.  Motion passed.

6:03  Robert Roche (Applicant), 37 Seconsett Point Road.  Proposed demolition of existing structure and construction of new single-family home and reconstruction of existing beach access stairs. (Patricia O. Schmitt: Owner of record).  NOI.

Materials submitted:  Board of Health letter.  House plans.

Resource areas:  Coastal Dune, buffer zone to coastal beach, Land Under Ocean.

Mr. Michael Borselli, Falmouth Engineering, and Attorney Brian Wall represented Mr. Roche, who was also present.  Plans call for demolition of the existing dwelling which is in land subject to coastal storm flowage and is within 100 feet of the coastal bank.  The new home is larger in order to accommodate utilities (which are located in the basement) and will be located 7 to 8 feet further away from the coastal bank.   It will meet current building standards and FEMA flood standards.  No alteration of naturally vegetated areas of the buffer zone is proposed.  The existing turf that separates the house from the top of coastal bank will be significantly enhanced with indigenous plantings.  Approximately 1200 square feet of grass and lawn will be replaced with native woody vegetation.  Dry wells will also be installed.  A new septic system that will accommodate four bedrooms will also be an improvement.  The Board of Health has approved the proposal and granted Variances in accordance with Title V regulations.  The beach access stairs will be reconstructed in the same footprint.

The Agent said that some aspects of the project, such as the proposed stairs and patio landing, will encroach into the setback.  The bank is armored and does not provide sediment source to coastal beach or coastal dune.  This ACEC designated area contains eel grass remnants.  There is absence of a naturally vegetated buffer strip.  He said that allowing for encroachment of a landing stairway and patio in exchange for mitigation is in the spirit of the waiver requirements.  The project meets the performance standards for coastal bank.  He suggested close and issue, contingent upon submission of a detailed landscape plan identifying plantings and spacing of plantings prior to issuance of the Order of Conditions.

Public Comment:
Attorney Theodore Schilling represented abutters, David Bernstein and Susan Howard and Gary Larino who are opposed to the large size of the proposed house.  He submitted photos of the house plans.  Attorney Schilling expressed concern with flooding issues and said that the neighbors would prefer a smaller house that would be outside the 50-foot buffer.  

Susan Howard, abutter, expressed her opposition to the size and scope of the proposal.  

Motion: Mr. Sweet made a motion to close and issue pending receipt of a landscape mitigation plan, with Mr. McKay seconding the motion.  Vote was unanimous 6-0.

6:06  John R. & Dorothy J. Malloy and George F. & Ruth Malloy, 110 Whippoorwill Circle. RDA. Proposed septic system upgrade.  Engineer requests continuance to April 10, 2014.  

Motion: Mr. Sweet made a motion to continue the application to April 10, 2014 at 6:12 p.m. with Mr. Rogers seconding the motion.  Vote was unanimous 6-0.

6:09  Gooseberry Island Trust and SN Trust, 0 Gooseberry Island and 0 Punkhorn Point Road.  Proposed construction of a bridge and driveway to provide vehicle access to Gooseberry Island from property located at end of Punkhorn Point Road.  NOI.

Material submitted: GIS map

Resource Areas:  Land Subject to Coastal Storm Flow (Velocity and A-Zones), Land Under Ocean, Salt Marsh, Bordering Vegetated Wetlands, Coastal Bank, Tidal Flats, Buffer zone to Rare Species Habitat (Priority and Estimated NHESP).

Acting Chairman Ralph Shaw asked everyone to limit their comments on this proposal to Conservation Commission issues only.

Jack Vaccaro, Vaccaro Environmental Consulting, accompanied by Attorney Brian Wall presented the proposal.  Gooseberry Island Trust owns the island and SN Trust owns the 800-foot long strip of land along the mainland shore (running from the southern tip of Punkhorn Point Road to a point about 350 feet north of Punkhorn Point Road), essentially the entire shorefront of the channel.  The strip of land includes an area at the east end of Punkhorn Point Road that is used as a launching point.  Gooseberry Island is 3.5 acre uninhabited island separated by a narrow channel.  The island consists of forested upland and salt marsh along its perimeter.  There was a small cabin on the Island and out building that were destroyed by hurricanes in the 1950’s.

The Applicants’ lawyer, Attorney Boudreau did an extensive title search and included his opinion as to ownership of the island and the narrow strip of land in the application.  It is described in an old deed on file at the Barnstable County Registry of Deeds, but is not on a plan.  Attorney Wall said that he would provide the Board with a copy of the deed.  The Agent said he would like to see the land court documents and the property boundaries displayed in the field and have that shown on a plan within a reasonable distance to the project.  He specified that the plan should show where the boundary of Conservation land is in relation to applicant’s land.  

Discussing the resource areas, Mr. Vaccaro said there is a 40-foot strip of water submerged at low mean water; next to that is an intertidal mud flat of about 40 feet; next to that is a salt marsh on the mainland and the island.  There is a narrow band of bordering vegetated wetlands on either side of the proposed bridge.  Most of Gooseberry Island has coastal bank that reaches a maximum height of 11 feet in one area.  There is also a small area of coastal dune at the southern tip of the island.  The entire project is located within land subject to coastal storm flowage.  A shellfish survey was conducted.  Utility work will take place within the priority habitat and estimated habitat which extends down Punkhorn Point Road and ends before the proposed bridge.  Maximum elevation of the island is 16 feet.  There will be approximately 200 square feet of impact on the resource area.  

Mitigation: The area of disturbance at the end of Punkhorn Point Road will be restored with 500 square feet of saltmarsh restoration along as well as a larger area of 1300 square feet of restoration on the island.  

Mr. Vaccaro said that the bridge will allow for development of a house on the island.  There will be a clearance of five feet from mean high water for the bridge. The 200 foot structure will be supported on span support with each span support located 14 feet apart.  Each support will consist of three 14” piles for a total of 39 piles.  A 12x12 connecting timber at the top will have stringers fastened to the header.  This will support the decking material which will be steel grate to allow for light penetration.  The Bridge will be built out progressively from Punkhorn Point Road so that there will be no construction equipment in the saltmarsh or channel.  There will be timber abutments on either end of the bridge.  The bridge is designed to support fire and other emergency access vehicles.  It will be 11 feet wide with no arch.  A 3-foot rail will be constructed above the 9-foot deck elevation.  

Utilities will be installed beneath the bridge with conduits for gas, cable, electric, telephone on either side of the bridge.  Drainage from the road will be captured by a sloping road profile and vegetated swales on the sides.  The road bed will be 8 inches of compact subgrade with a crushed shell surface.  Care will be taken to remove as few trees as possible to accommodate the 20-foot wide corridor for the driveway.  

Mr. Vaccaro discussed the shellfish survey.  At every pile location one cubic foot of sediment was scooped and the material was passed through a ¼ inch sieve.  There are rib mussels along the saltmarsh edge, but very little shellfish were found.  Quahogs were found in the subtidal area of the channel.  Mr. Vaccaro said that the densities were not significant enough for residential or commercial harvesting purposes.   He said that the Minutes concerning the Tribe’s aquaculture grant around Gooseberry Island are ambiguous.  

In response to the Agent’s request for clarification of the mitigation figures, Mr. Vaccaro said that he will prepare a spreadsheet.  The Agent recommended submission of more substantial and detailed mitigation plans.

The Agent read the letter dated March 27, 2014 from Eileen M. Feeney, Fisheries Habitat Specialist from the MA Division of Marine Fisheries into the record     

Mr. Vaccaro said that he has never found soft shelled clams in this kind of deep muck.  Mr. McKay said that he saw white soft shells and rib mussels in the area and wondered if the survey is accurate.  

The Agent inquired about the following:
  • clarification regarding the staging area reference in the narrative and the impact of heavy equipment being stored overnight;
  • clarification regarding sediment transport and waterflow and the impact of the piles on those dynamics of the area;
  • consultation with a coastal geologist because of the velocity zone;  
  • contacting the Cape Cod Commission about the proposal;
  • research to determine if there are any wetland restrictions included in the Deed.
Mr. DiMeo asked if the Applicant would consider arching the bridge, therefore requiring less pilings.  Mr. Vaccaro said that the Applicant wanted to maintain a low profile and that 5 feet of clearance is standard.

Public Comment:
Mr. George Greene submitted a copy of a downloaded GIS plan showing the lines of the shellfish grant surrounding the island.  He said that the landing and Punkhorn Point Road have been used for centuries by the Wampanoag to fish.  He said that the potential development of the Island with a septic system will threaten the shellfish grant.  He asked the Board to consider the impact that the bridge will have on the shellfish grant and others navigating through the channel.  He said that he agrees with the Division of Marine Fisheries letter and challenged the results of the shellfish survey.  Mr. Greene said that reduction of nitrogen (shellfish propagation) plays a part in protection of the environment.

Shellfish Constable Rick York said that the Minutes of the Board of Selectmen meeting when the Board originally issued the grant show that the creek is definitely in the grant.  He said that he can provide the document.  He also said that the pilings would displace 22 square feet of bottom that would decrease the productivity of the shellfish farm.  

Mr. John Weltman, owner of 80 Punkhorn Point Road says that the land court shows he owns up to the marshland.  Mr. Weltman said that he has the right of way to the middle of the road and that SN Trust does not own the road.  He said that the bridge would disturb both the shellfish and shore bird habitat.  

Mr. Stephen Ide, at 57 Punkhorn Point Road, said that he is opposed to the proposal and that bridge noise would be detrimental to the wildlife habitat in the area.

Ms. Jesse Little Doe, Vice Chairman of the Mashpee Wampanoag Tribe, said that the grant does include the channel.  The Town is in the process of assisting the Tribe to apply to the State to acquire certain parcels of land as Tribal land, and not just as a grant.  She said that the value of the land is of a people whose blood and bones have been here for thousands of years.  Ms. Little Doe asked the Board to consider all of the issues involved.

Attorney Schilling asked if the Applicants have paid any taxes on the marsh.  He said his title search shows no granted right of way for the island.    He said that the Applicants have no right to be on the road and have no right to bring utilities to the island.  He quoted from Chapter 130, Section 105 regarding restrictions within marshes.  He said that the Applicant would need a Chapter 91 license, Coast guard approval and Department of Army Corps of Engineer approval.  

Mr. Antone Perry, said that he has seen otter, deer, coyote and cottontails on the island and that the proposal would destroy their habitat.

Vernon Lopez, Chief of the Mashpee Wampanoag Tribe, said that he is 91 years and 9 months old and that Gooseberry Island is a sacred place.  He remembers hunting and fishing on the island and is very sentimental about all of the land that he considers as Wampanoag home land.  He said it would be a shame to put a home on Gooseberry Island.

Another member of the audience said that she has summered in Mashpee for 20 years.  She asked how a bridge could be put on such a shaky foundation.  She said she paddleboards in the area and is 5’4” and won’t fit under the bridge.

The Agent recommended a continuance and reiterated the list of items that the Applicant must submit to the Board:
  • additional research into how well the Bridge would withstand conditions in the velocity zone;
  • consultation with a coastal geologist;
  • detailed mitigation plans;
  • clarification on land ownership and abutter rights in this area.  
  • staking in the field conducted by a professional land surveyor of the boundary of conservation land in the area.
Attorney Brian Wall said that he will provide the requested information.  He responded to the Tribe’s claim that it owns the land in the area.  He said that the Commonwealth of Massachusetts owns the land below the extreme low tide mark and the upland property owner owns the land in the inner tidal mark.  The Tribe was issued the aquaculture grant, but they do not have ownership of the land.  He said that the Applicant is appealing the ZBA decision, but this does not prevent the Applicant from pursuing Conservation Commission permits.  Plans are for a single family home, thus the reason for the bridge to the island.

Motion: Mr. Sweet made a motion to continue the hearing to May 8, 2014 at 6:00 p.m. with Mr. Gurnee seconding the motion.  Vote was unanimous 6-0.  

6:12 Cotuit Solar, LLC, 36 Savannas Path.  Proposed addition to an existing dwelling. RDA.

Resource Area: Riverfront associated with Quaker Run

Mr. Conrad Geyser represented the proposal and said that it is outside the 50- and 100-foot buffer from the flagged wetland.  

The Agent said that he flagged the wetland a few years ago.  Since then he discovered that the DEP considers Quaker Run Road as riverfront.  Riverfront does not have a buffer zone, but rather inner and outer riparian zones.  With the designation of riverfront, the Agent said that the applicant will need a plan from a wetland consultant or engineer showing the 200-foot setback from the river.  The Agent told the Applicant to cease any further vegetation/tree removal in that area.  He recommended a continuance.  

Motion:  Mr. McKay made a motion to continue the hearing to April 10, 2014 @ 6:18 p.m. with Mr. Rogers seconding the motion.  Vote was unanimous 6-0.

6:15  Warren Q. and Kim R. Fields, 25 Taffrail Way.  Proposed retaining wall and invasive species management.  Continued from March 13, 2014.  Engineer requests another continuance to April 10, 2014.  NOI.

Motion:  Mr. Gurnee made a motion to continue the hearing until April 10, 2014 at 6:15 p.m. with Mr. Rogers seconding the motion.  Vote was unanimous 6-0.

Akram E. and Marta O. Rafla, 45 Little Neck Lane.  Proposed reconfiguration of existing driveway, walkways and landscaping.  RDA

Resource Area:  Coastal Bank and buffer zone to Coastal Bank.

Ms. Mary LeBlanc represented the application and stated that it is a very small site with very limited parking.  The proposal will eliminate parking on the dead-end street.  The entire site slopes down the coastal bank.  A small retaining wall, gravel mulch and drainage across the front of the house will help solve the drainage problems.  Expanding the driveway will require a retaining wall, and prevents the road runoff from the coastal bank.  Mitigation plantings required were calculated at 372 square feet; the proposal calls for over 500 square feet of native plantings.

The Agent said that the coastal bank is vegetated and serves as vertical buffer to storm damage.  The proposal is an enhancement and will help to prevent storm damage and runoff damage.  There will be no adverse impact to bank stability, habitat, runoff regimes, etc).  The driveway expansion will be inside previously disturbed areas.  Footprint will not be increased.  He recommended close and issue.  He reminded the Applicant to display the DEP number and address for the existing pier, ramp and float in perpetuity on the most seaward pile, the float and the ramp as per Mashpee Harbor Master recommendations and Conservation requirements.

Motion:  Mr. Sweet made a motion to approve the proposal with Mr. McKay seconding the motion.  Vote was unanimous 6-0.

Administrative Review:  0-Rear Wading Place Road, 43-2561.  Proposed beach grass planting.
Mr. Brad Holmes represented the Applicant and stated that the proposal calls for additional planting (beach grass) on the spit in order to stabilize the side of the dune that faces the creek.  

Mr. Anderson asked if a snow fence or other preventive measures would keep people from going into the dune area.  The Agent said that there are restrictions in terms of what can be installed because of the rare species inhabiting the area.  He suggested signs/symbolic fencing to prevent people from walking on the dune grass.  The Agent said there is some channel washout and erosion.  

Mr. Sweet made a motion to approve the Administrative Review with Mr. Gurnee seconding the motion.  Vote was unanimous 6-0.

16 Spoondrift Way & Cape Cod Docks violation: seawall installation
At Mr. Gurnee’s suggestion, the Agent investigated and confirmed that unpermitted work was being conducted on the retaining wall at 16 Spoondrift Way.   The Agent visited the site and ordered an immediate cease and desist.   The Agent said this violation was especially egregious due to the fact that the homeowner had recently received Conservation Commission approval for other work (house demo/reconstruction) further away from the bulkhead area.  The Agent calculated fines according to the nature of the violations and recommended fining the homeowner $600.  The homeowner has been told he can amend the existing Order of Conditions to permit this most recent work.  He will have to submit an engineered plan and pay after-the-fact permit fees.

Jennifer Henry, Cape Cod Docks, said that her company performed the unpermitted work and installed a vinyl bulkhead in front of the existing timber bulkhead.  She apologized for taking the homeowner at his word that he had a permit for the bulkhead work.  The Agent recommended fining Cape Cod Docks the maximum of $300 for two days of unpermitted work for a total of $600.  

Mr. Sweet made a motion to approve the recommendations of the Agent to fine homeowner Richard Cleary and Cape Cod Docks $600 each, with Mr. Gurnee seconding the motion.  Vote was unanimous 6-0.

Garner Farley Bogs: Town Counsel letter to current grower: Notice to Quit Occupancy and Use.
The Agent said that Attorney Costello sent the letter to Mr. Bottomley and demanded removal of his equipment from the parcel.  A new lock has been put on the gate to the parcel.

Request:  Cancel April 24, 2014 Public Hearings.
The Agent said that he is requesting cancellation of the April 24th public hearing due to unavoidable personal obligations.  Mr. Sweet made a motion to cancel the public hearings with Mr. Rogers seconding the motion.  Vote was unanimous 6-0.

Upcoming workshops:
  • Cape Cod Erosion Control Workshop - April 9th from 8-3 at the Marriott Courtyard,
707 Iyannough Road, Hyannis. Breakfast and lunch included.
  • DEP Revisions to Wetland Protection Act (Wetlands, Waterways and Water Quality Certification) - April 14th, from 1-3 p.m. at DEP Southeast Regional Headquarters,
20 Riverside Drive, Lakeville 02347. The street sign is clearly visible; 2nd building on the right.  Directions: www.mass.gov/eea/docs/dep/about/directions.pdf.

The Agent told the Board that the Conservation Department would pay the enrollment fee if they are interested in attending the upcoming workshops.

Pickerel Cove: Update on fire/tree damage.
The Agent said that a group of children notified the Fire Department of a fire in the recreation field of Pickerel Cove. The Fire Department suspects that fireworks caused the fire.  The Agent said that the burning went all the way to end of the field, but stopped before the forest.  The Agent investigated a neighbor’s report that someone cut trees on the pond side of the parcel.  He suggested leaving the trees right where they have landed since they now block access to illegal ATV use.

At 9:15 Mr. Shaw made a motion to end Open Session and enter into Executive Session to discuss the Lopez/Lando, 42 Fells Pond enforcement.  He announced that Open Session would not be reconvened.  Mr. Sweet seconded the motion.  Vote was unanimous 6-0.

Respectfully submitted,



Cynthia Bartos
Administrative Secretary