Conservation Commission
Minutes of May 8, 2014
Public Hearings
Mashpee Town Hall
Ockway Meeting Room
Commissioners: John Fitzsimmons, Bud Shaw, Mark Gurnee, Brad Sweet, Robert Anderson, Dale McKay and 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 Chairman John Fitzsimmons at 5:55 p.m. He announced that the meeting is being televised.
There was no public comment.
Pre/Post Hearing Agenda:
Approval of Minutes: March 27, 2014 and April 10, 2014.
Motion: Mr. Anderson moved to approve the minutes of March 27, 2014, seconded by Mr. Shaw. Vote 5-1 with Mr. Fitzsimmons abstaining.
Motion: Mr. Anderson moved to approve the minutes of April 10, 2014, seconded by Mr. Sweet. Vote 5-1 with Mr. Sweet abstaining.
Ted Tye (National Development Corporation) Proposed Conservation Restriction: Bridges to Mashpee Project.
The Agent informed the Commissioners he submitted the Conservation Restriction document to Town Counsel for review and Town Counsel made some minor revisions. For the most part, he was satisfied with the wording. There are no outstanding issues. There are no wetland resource areas in the parcel and the Town has the right to enter the parcel upon notification of the land owners. The Agent noted the parcel would be best served by setting it aside for wildlife habitat and groundwater protection. Mr. DiMeo questioned access for emergency vehicles and the access to the High School. The Agent stated that issue is not under the purview of the Conservation Commission and covered by other Town Boards and the Site Plan Review Committee.
No comment from the public.
Motion: Mr. Shaw moved to accept the proposed restriction, seconded by Mr. Sweet. Vote 6-0 unanimous.
HEARINGS:
6:00 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. Continued from March 27, 2014 at the request of Commission to allow Applicant opportunity to research/submit documents. NOI
Resource Area: 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)
Materials Submitted: Revised Bridge Plan.
Mr. Jack Vaccaro, Vaccaro Environmental Consulting, accompanied by Attorney Brian Wall and Tom Bunker from BSS Design presented the project. Jack noted this meeting was continued from the March 27 meeting at which time there was much comment from the public and the Commissioners. Mr. Vaccaro stated there were several issues the Commissioners wanted additional information. He pointed out the revisions and plan submittals and referred to the revised bridge plan. The height of the bridge has been adjusted from 5 feet to 7 feet. It is not an arched bridge but gives the effect of an arch. Mr. Vaccaro said they have also, based on the recommendation of the Agent, determined to increase the salt marsh restoration to 2400 square feet.
Mr. Vaccaro said another outstanding issue includes the question of ownership of the SN Trust parcel on the east end of Punkhorn Point Road, which Attorney Brian Wall will address. They also consulted with a coastal geologist to assess how the bridge will affect the water circulation and the associated impacts of sediment distribution as it may affect land under ocean and the shellfish. Another issue was the whether the proposed bridge will withstand flooding in the event of storms, which Tom Bunker will address.
Attorney Brian Wall representing the Applicant said the State Regulations require the Notice of Intent to be signed by the owner. Attorney Wall said he submitted a letter along with a copy of the deed of record and also included a stamped plan prepared by Mr. Bunker showing, in his opinion, the land is owned by SN Trust. Attorney Wall distributed a letter from Attorney Daniel Briansky stating that, in his opinion, SN Trust is the owner of the land in question and also attached to the letter the Owner’s Policy of Title Insurance. Attorney Wall said research indicates the Massachusetts Legislature passed a special Act and Resolve approving a bridge at this location to Mr. Tynsdale. It was never actually built but the legislation is still on the books. Attorney Wall felt the Applicant has met
the burden of putting forth some credible evidence. Attorney Wall asked the Commission to make a finding that they have met their burden of proof to show SN Trust is the owner of the property.
Attorney Wall, in response to the Commission’s request as to whether or not this project is subject to a mandatory review by the Cape Cod Commission, stated since the proposed bridge will serve only one dwelling, the proposed project does not trigger mandatory DRI review.
Attorney Wall referred to the DEM Restriction Order and stated the proposed bridge will be a driveway/roadway that provides access to the island and is of minimal practical width. It will not destroy existing vegetation, will not alter patterns of tidal flow, will not obstruct the movement of sediment or alter the coastal wetland. Therefore, the bridge is an allowed activity and use under the DEM Restriction Order.
Attorney Wall referred to the Aquaculture Grant. He said the right to plant, grow, and take shellfish in this channel does not preclude a bridge and they can co-exist. He questioned if the grant is actually at this location due to the fact the license simply states the grant is located at Gooseberry Island, which is a very indefinite description.
The Agent stated he did confer with Town Counsel and Town Counsel’s recommendation is to view the land ownership issue in regards to the evidence put forth. The Agent stated that he believes the burden of proof has been met and the Commission should focus on the environmental aspects on how the project relates to the performance standards of the wetland resource areas under Chapter 172 bylaw and 310 CMR State Wetlands Protection Act. The Agent expressed his concern the Commission did not receive any correspondence from the Cape Cod Commission on the proposed project. Attorney Wall said he will ask the Cape Cod Commission for a letter.
Public Comment
George Green, Assistant Director of the Natural Resource Department for the Mashpee Wampanog Tribe, spoke about the shellfish grant which was licensed by the Board of Selectmen and the State of Massachusetts and has just been renewed for another 14 years. He said the bridge is going to take 28 square feet of shellfish beds base and under the regulations, the Commission should not approve anything that will interfere with the productive shellfish area. He said this property was taken into the custody of the Conservation Commission and asked who paid taxes on this property and stated that he was concerned as to why the Commission did not ask these questions. He also commented the Applicants did work on the road without a permit and the channel is used by boat traffic. Mr. Green said the bridge will interfere with
the Tribe’s shellfish propagation project. He said that putting a house on this property will interfere with the nitrogen reduction for the town of Mashpee and the ability to reduce nitrogen in the bay and reduce the sewering of Popponesset. Mr. Green questioned the board overriding the Zoning Board of Appeals. He stated that the project will also affect the wildlife habitat and asked the Commission to deliberate these issues.
Steve Ide questioned if Mr. Wall condones the behavior of his client in trying to intimidate the abutters. He stated he has never been on the Island. He also questioned Mr. Wall’s opinion and the process in which he got abutters to sign letters.
Attorney Schilling, representing the abutters at 84 Punkhorn Point Road, questioned the color of title and stated it is not recognized in the State of Massachusetts. He said that his clients are claiming this marsh and their deed runs to the waters of Popponesset Bay. He said he did a title search from 1877 to date and in his opinion SN Trust does not have title. He left a copy of his discussion for the record. He said the assessors map shows the Town actually owns where this dock (bridge) is being proposed. He has no doubt that the title is not in SN Trust. He referred to a letter given to the Agent regarding the prescriptive right. There is no right of way for Punkhorn Island. Land Court did not grant it in 1955. He questioned the opinions of the other attorneys involved. He
spoke about the adverse effect on shellfish and navigation. Attorney Schilling believes the project should have a DRI review due to the fact it has regional impact. He referred to the list of roads and Punkhorn Point Road is a private road. He reiterated color of title is not recognized in the State of Massachusetts and title of insurance is not credible evidence.
The Agent recommended going with Town Counsel’s opinion and stated this is not the proper forum to discuss ownership and the Conservation Commission should deliberate over the environmental impacts.
Robert Wolpe asked why Town Counsel wasn’t present. The Agent said he made it clear what the purview of the Commission is and the Conservation Commission is not the proper forum to follow up on this. Mr. Wolpe spoke about the ownership of the property. Mr. Wolpe was reminded again that the Commission is not going to deal with the ownership question. Mr. Wolpe questioned why the Commission is going forward with the project. The Agent said there are other regulatory Boards that need to review this project. He also stated that Town Counsel will be following this proposal. He stated that, under Regulation 3 section 5, all other applicable boards and commissions have to have their permits issued before Conservation can close on a hearing.
Gina Marie Mariano was representing Mr. Weltman and Mr. Atkins at 80 Punkhorn Point Road. She read a letter opposing the application to construct a bridge and driveway to provide vehicle access to Gooseberry Island from Punkhorn Point Road. The letter with the attachments was entered into the official record.
Mr. Wolpe addressed comments made at the last hearing. In November 2013, the road at Punkhorn Point was re-graded by the Applicant illegally without permission. At the after-the-fact hearing, the Commission determined that the Applicant met the performance standards. Mr. Wolpe said the Applicant “did a lot wrong”. During the summer he said he observed the Applicant clearing on Gooseberry Island within 100 feet of the wetlands. Mr. Wolpe also spoke about navigation. The channel is a sandy bottom, it is also beautiful, and should remain recreational. This is a very important part of the community. Mr. Wolpe also commented on the shellfishing cages and the proximity where the bridge is being proposed. He said this matter is important to the Town as far as the wetlands,
estuary, and the Mashpee River are concerned. Mr. Wolpe stated the Applicant should be required to tell the Town, from the Town Manager on down, what the project completely entails.
Dr. McCloud spoke about the marshland and how was it surveyed. In 1950, the Town was offered the opportunity to buy Gooseberry Island and they refused it. He said if this proposal is approved, it will be a big mistake. He said he would like to see more details of the title.
Mr. Tom Bunker, BSS Design, said they have reviewed the design of the bridge. It is designed to withstand vehicular traffic and also strong enough to withhold storm surges and storm waves. The bridge design relies on three pile bents spaced 14’2” apart. He said their recommendation was to use galvanized steel gratings for the deck surfaces. The open gratings minimize shading effects to marine vegetation and prevent damage during storms from waves. It was Mr. Bunker’s opinion the proposed bridge has minimized any potential for adverse environmental impacts or to cause any harm to the environment or to neighboring properties as a result of storm damage. The Agent said he reviewed the documents regarding the strength of the bridge and the design. The Commission requested an
additional certified plan on the design of the bridge.
Mr. Vaccaro said if the Commission prefers to continue this hearing so they can submit structural plans, they will put off their discussion on the issues of water circulation. The Agent reiterated the Commission would like to see a final plan stamped by a structural engineer which would include water flow and sediment distribution. The Agent also requested a signed letter from the Cape Cod Commission indicating they did a surface review and attest to the fact that this does not trigger a DRI.
Mr. Vaccaro pointed out the salt marsh restoration areas on a map and calculated 2200 square feet to replant the footpath area. He submitted a salt marsh restoration plan. The Agent recommended when it comes to the actual salt marsh restoration, if the project is approved, that there be some professional oversight when it comes to mitigation which can be conditioned.
George Green, speaking as the Barnstable County District Supervisor, said the Town of Mashpee received a grant from NRCS to do mitigation on Mashpee Neck Road to reduce runoff from the road.
Steve Ide questioned the noise that will be coming from the bridge.
Rick York, Mashpee Shellfish Constable, asked if the bridge could be designed to reduce the pilings so it would not impact the shellfish.
Mr. Vaccaro requested a continuance of the hearing to June 12, 2014 at 6:00 p.m.
Motion: Mr. Shaw moved to continue the hearing until June 12, 2014 at 6:00 p.m. at the request of the applicants. Seconded by Mr. Sweet. Vote unanimous.
6:03 Aldo R. and Sandra Esposito 25 Sand Dollar Lane. Proposed installation of a patio area using pavers and field stone, RDA
Resource Area: Buffer zone to coastal bank/bordering vegetated wetlands
Materials Submitted: Plot Plan and Photos of 25 Sand Dollar Lane
Sandra Esposito, owner, presented the project stating she wanted to put in a patio using pavers and fieldstone. The Agent noted the plot plan did not show where the patio was going and suggested the hearing be continued. He also noted the Applicant would also need to describe whether there is going to be excavation, if any fill is going to be brought in, if any vegetation is going to be removed and, if so, where will it be specifically transplanted. The Agent also requested she note how the proposed area will be leveled (graded) to accommodate a patio. The Agent requested that John Clancy, Contractor, submit all the information on how he is going to install the patio and to make sure he is not going to leave any exposed soil and runoff down the bank.
No Comment from the public.
Motion: Mr. Sweet moved to continue the hearing at the request of the applicant to June 12 at 6:12, seconded by Mr. Shaw. Vote unanimous 6-0
6:06 New Seabury Beach Club, 68 Mid-Iron Way. Proposed removal of hazardous trees RDA
Resource Area: Buffer zone to freshwater wetland
Materials Submitted: Assessors Map, Plot Plan, Photos of 68 Mid-Iron Way
David Hatfield was representing the New Seabury Beach Club. He said they are asking permission to remove 6 trees which are leaning toward their fitness center building. The trees will be cut to grade with no ground disturbance. Everything will be moved off site. The Agent said if these trees were to come down they would do significant damage to the building. The trees are within the buffer zone and the resource area is fresh water wetland. He recommended a negative determination. The Agent addressed the fact that grass and leaves are being dumped and asked if he could keep a watch on this.
No Comment from the public.
Motion: Mr. Shaw moved a negative determination, seconded by Mr. Sweet. Vote unanimous. 6-0
6:09 Joseph R. Watson and Shelley B. Lee-Watson, 415 Monomoscoy Road. Proposed modifications to existing licensed dock. NOI
Resource Area: Land Under Ocean, Land Containing Shellfish
Materials Submitted: Project Location Map, Photo of Site Vicinity, Engineering Plan, David Thulin, P.E.
Jack Vaccaro, Vaccaro Environmental Consulting, was representing the Applicants who were present. Jack said the property is located near the southern end of Monomoscoy Island. The application is to increase the size of the float by adding a second float. The additional float will measure 8’ by 25’ and will be installed in line with the existing float. He explained the construction will be performed from a work barge from Little River. It was noted there are no plans for the existing old float. The Agent felt more damage would be done if it was removed. Mr. Vaccaro stated the Applicant has two boats therefore, the reason for the new float. Mr. York, Shellfish Constable, asked about the licenses. Mr. Vaccaro said everything is licensed except for the proposed
float.
No Comment from the public.
Motion: Mr. Gurnee moved to Close and Issue, seconded by Mr. Sweet. Vote unanimous. 6-0
6:12 Irma Fountain, Trustee, 89 Horseshoe Bend Way. Proposed removal of Hazardous tree RDA
Resource Area: Buffer zone to Land Under Waterbody (Johns Pond)
Materials Submitted: Plot Plan and Photo of 89 Horseshoe Bend Way
Irma Fountain, Trustee, said her proposal is to cut down a tree because it proposes a hazard. She said Connolly Tree service confirmed this. The Agent requested that she get a letter from Mr. Connelly stating the tree is a hazard and recommended a negative determination.
Motion: Mr. Shaw moved for a negative determination, seconded by Mr. Sweet. Vote unanimous. 6-0
6:15 Lynn Giachetto, Trustee, 9 Chart Way. Proposed landscape modifications RDA
Resource Area: Land Under Ocean, Salt Marsh
Materials Submitted: Pictures of Existing Dock and Proposed Dock
Chuck Giachetto stated he would like to replace the existing dock with an aluminum dock. The proposed dock is the same size and will be in the same location along with addition of a 2’ by 6’ feet return toward the house. The Shellfish Constable, Mr. York, noted the existing dock is licensed and suggested the Applicant put float stops on it. Mr. Giachetto said the reasoning for the addition is because he has a large boat. The Agent said the Conservation Commission and Harbormaster require the chapter 91 permit number be displayed and that the property address be displayed. All docks and piers are required to have the property address displayed on the most seaward pile and all portions of the float. Mr. Giachetto said he would take care of it. It was also noted that the plans need to be
resubmitted for a new Chapter 91 license. The Agent recommended a negative determination with the condition that float stops be added to the proposed return.
No Comment from the public.
Motion: Mr. Shaw moved a negative determination, seconded by Mr. Sweet. Vote unanimous. 6-0
6:18 Louis J. and Louise M. DiMeo, 5 Compass Circle. Proposed landscape modifications.
Resource Area: Buffer zone to coastal bank/bordering vegetated wetland.
Materials Submitted: Proposed Condition Site Plan, Photos of 5 Compass Circle
Louise DiMeo, homeowner, stated he and his wife would like to add approximately 160 feet along an existing pool deck. She said the stone deck is very narrow and it is a safety hazard around the pool. The Agent recommended the bushes that will be taken out should be replanted on the outside of the fence which will enhance the natural vegetation in this area. The Agent said the plan is not clear in terms of materials and overall footprint of what is being proposed. Mrs. DiMeo requested a continuance in order that she may submit a more detailed plan.
No Comments from the public.
Motion: Mr. Shaw moved to continue the hearing to May 22 at 6:06, seconded by Mr. Sweet. Vote unanimous. 6-0
6:21 Mark and Heidi Whelan, 104 Pimlico Pond Road. Proposed seasonal dock NOI
Resource Area: Land Under Water Bodies (Johns Pond), NHESP mapped habitat
Materials Submitted: Engineered plans, Assessors Map and Photos and Maps of the area of 104 Pimlico Pond Road
Mark and Heidi Whelan, homeowners, were present and Mrs. Whelan described the proposed dock manufactured by FWM Docks. The dock frame is maintenance free and is made of marine grade aluminum and stainless steel. The design makes for easy seasonal installation and removal. The dock will be a pole driven dock. The dock sections will be carried to the site and placed on the lake shore bottom and off season the dock will be removed. The Agent said Natural Heritage is in the process of reviewing the proposed dock. He said there is already a pathway to get to the dock and noted if there is any substantial clearing the Commission is to be notified. There is no issue from the Shellfish Constable. The Harbormaster had no issue with the proposal. The Agent recommended a Close and Issue and
reminded the Applicants that Chapter 91 needs to be notified.
No Comment from the public.
Motion: Mr. Shaw moved to close and issue, seconded by Mr. Sweet. Vote unanimous. 6-0
6:24 Theodore C. Eli and Maureen E. Creedon, 14 Pem Lane. Proposed construction of attached garage and modifications to existing driveway RDA
Resource Area: Riverfront (outer riparian to Mashpee River)
Materials Submitted: Site Plan prepared by J.E. Landers-Cauley PE dated 4/10/14, Photos of 14 Pem Lane
Jack Landers was representing the applicants and said they are within the 200 ft setback from the river and they are entirely out of the 100’ buffer. The applicants are proposing to build a garage. Jack said they are building it over the footprint of the driveway and part of the walkway. He felt they are going to at least have to lift the pine. The Agent said there is no proposed increase in living space and the Board of Health stated no application is necessary because there is no increase in living space. It is within the riparian zone and it is entirely hardscaped and there may be some minor limbing of the white pine. The Agent also noted it meets the performance standards on the river front. There is no impact to water quality and no impact to the river. The RDA was previously
authorized by this commission but the RDA expired. The Agent recommended a negative determination.
No Comment from the Public.
Motion: Mr. Shaw moved a negative determination, seconded by Mr.Sweet. Vote unanimous 6-0
6:27 Charles and Janet Nirenberg 28 Triton Way. Proposed change of access to allow for maintenance of existing revetment wall RDA.
Resource Area: Coastal bank (armored)/buffer to coastal bank.
Materials Submitted: Construction Site Plan Revetment Construction prepared by Falmouth Engineering dated September 21, 2008, Photos of 28 Triton Way.
Tara Marden, Woods Hole Group, representing the applicants explained the existing rock revetment located on the property is in need of maintenance as a large armor stone at the base of the revetment has become dislodged. The repair work will be performed under DEP File NO. SE 43-2256 as there is a maintenance in perpetuity condition listed on the Certificate of Compliance. The construction access was along the coastal beach from Dean’s Pond to the northeast. Due to the narrowing of the beach, this access in no longer an option and therefore requesting a change of access through this RDA. Tara stated the proposed access will be from the top of the coastal bank at the Nirenberg’s property. Tara said once the armor stone has been repaired, the small woody plants and beach grass will be replanted and
the two panels of chain link fence will be re-installed. The vegetation along the 15’ way to water will be replanted. The Agent said this is covered under 43-2256 which comes with a maintenance and perpetuity clause for revetment work. Vegetation impacted will be replanted except for the willow which is affecting the pool. That will not be replanted and the Agent recommended a negative determination.
No comment from the public.
Motion: Mr. Shaw moved a negative determination, seconded by Mr. Sweet. Vote unanimous. 6-0
6:30 Kathleen Pelusi, 67 Meadowbrook Road. Proposed construction of single family dwelling, garage and driveway. RDA.
Resource Area: Buffer zone to LSCSF
Materials Submitted: Proposed Single Family Home & Septic System Site Plan, Photos of 67 Meadowbrook Road.
Jack Vaccaro, Vaccaro Environmental, represented the Applicants and described the project which is to construct a single family home involving some clearing within one hundred feet of a bordering vegetated wetand. The Agent asked what is being proposed within the 100 ft. buffer. Jack said it will be a lawn area subject to the standards. The Agent will include conditions with the RDA and recommended a negative determination. The Agent noted the property needs to be staked.
No Comment from the Public.
Motion: Mr. Shaw moved a negative determination, seconded by Mr. Sweet. Vote unanimous. 6-0
6:33 Jeffrey and Whitney Brown (Applicant) 89 Whipporwill Circle. Proposed construction of extension to an existing pier and reconfiguration of existing ramp and float. Owner of record. Christopher J. and Ann J. Salvo Trustees, Engineer requests continuance to 5/22/2014 at 6:03 p.m. NOI
Motion: Mr. Shaw moved to continue this hearing until May 22, 2014 seconded by Mr. Sweet. Vote unanimous. 6-0
Administrative Review – William P. Tommassino and Deborah D. Thornton, 196 Waterway SE 43-2714 – Maintenance pruning of trees. Continued from April 10, 2014 – no one in attendance to represent applicant.
The Agent referred to the plans previously given to the Commissioners. It is a property that is currently under an Order of Conditions, hence the request for an Administrative Review. The Agent noted it is a hazardous situation. Mr. Allenby, Arborist, said plans call for removal of two diseased pitch pines and trimming of one white oak. He also asked permission to get rid of the dead wood from the trees that are over the house. The Agent Googled the area in order for the Commissioners to see its location. The Agent said it is maintenance pruning with no impact to the creek or any coastal bank. He recommended approval of the Administrative Request.
No Comment from the Public.
Motion: Dale McKay moved to approve the administrative request. Vote 5-0-1 with Mr. Anderson abstaining.
Jehu Pond Guardrail Installation.
The Agent referred to a price quote from a contractor regarding installing a wooden guardrail at Jehu Pond. He referred to pictures with the boulders and said the proposal includes moving the boulders to the inside of the parking area and replacing the boulders with a wooden guardrail. The cost estimate is approximate $5400. No permitting is required but the project requires the Commissioners’ authorization to release funds from the Lands and Maintenance account to pay for the work. AmeriCorps will be doing some of the work along with DPW.
Motion: Mr Shaw moved to release the funds from the lands and maintenance account, seconded by Mr. Sweet. Vote unanimous. 6-0
Scheduling of a site visit to Jehu Pond for possible canoe/kayak launch site. The Agent stated he will be contacting the Commissioners to schedule a site visit to Jehu Pond to look at a possible canoe/kayak launch site.
Santuit Pond Herring Run Update The Agent noted the herring are having a hard time getting up the new fish ladder. He didn’t know if it is the design or the number of herring. Marine fisheries are looking at the design because in years past they were getting up and over the fish ladder quicker. He suggested the Commissioners go down and take a look.
Motion: Mr. Shaw moved to adjourn the meeting, seconded by Mr. Sweet. Vote unanimous. 6-0 Meeting adjourned at 9:15 p.m.
Respectfully submitted,
Judy Daigneault
Recording Secretary
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