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HomeMy WebLinkAbout2017-7-26Minutes for JuIv 26 2017 adol2ted Aug. 9 CONSERVATION COMMISSION PUBLIC MEETING 2'R thm Beach Road Nantucket, Massachusetts 02554 �` v �6 www nantucket- ma.gov Wednesday, July 26, 2017 ..-t 4 Fairgrounds Road, Training Room — 4:00 p.m. C, Commissioners: Andrew Bennett(Chair), Ashley Erisman(Vice Chair), Ernie Steinauer, David LaFleur' Ben Champoux, Ian Golding, Joe Topham (� Called to order at 4:07 p.m. Staff in attendance: Jeff Carlson, Natural Resources Coordinator; Joanne Dodd, Natural Resources Office Adn`estrat`rl,_ Terry Norton, Town Minutes Taker Attending Members: Bennett, Erisman, Steinauer, Champoux, Golding, Topham Absent Members: LaFleur Late Arrivals: None Farlier Departure: Golding, 5:32 p.m. Agenda adopted by unanimous consent *latter has not been heard 1. PUBLIC MEETING A. Announcements and Public Comment — Carlson: July 27 at 6 p.m., the Board of Health is having a presentation on regulations passed in last couple of years pertaining to wells and septics. fl. PUBLIC HEARING A. Notice of Intent 1. Nantucket Islands Land Bank —17 Commercial Wharf & Unnumbered Lot New Whale Street (42.2.4 -7 & 8) SE48 -2885 (Cont 09/06/2017) 2. 'Mary D. Starr — 19 East Creek Road (55 -60) SE48 -2985 (Cont 08/09/2017) 3. Steven T. & Erin P. Freeman — 93 Baxter Road (30 -10) SE48- 2984 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Art Gasbarro, Nantucket Engineering & Survey — This is for the coastal stabilization of the upper bank; last hearing was left with staff to seek counsel on fines. The fine of $4,2000 in penalties will not be contested and is accepted as a condition. Glen Wood — The Les Smith, Epsilon, the engineer for `Sconset Beach Preservation Foundation (SBPF), reviewed the plans and found them acceptable; if they had an issue, they would have already put something in their records. Given this is a pre -1978 structure and there is no swallow habitat, it is approvable by Massachusetts Department of Environmental Protection (DEP). Public Maureen Phillips, 30 Long Pond Drive, Nantucket Coastal Conservancy (NCC) Edie Ray, Aliacomet Avenue D. Anne Atherton, NCC Rick Atherton Discussion (4:08) Champoux — Feels ripping it out will do more harm than good but he doesn't want people to think they can get away with it. A $5000 fine is virtually a slap on the wrist. Steinauer — Agrees with blr. Champoux. This is an emotionally wrought location on the island and we can't let our feeling about SBPF get in the way. We need to stick with the regulations and the bylaw. Golding — The primary issue is how they behaved and ConCom sending the signal that doing work without a permit is okay. He feels it is complete conjecture to say that the DEP would approve this. The owner acted illegally and should pay the penalty. Erisman — If we permit this within the SBPF project area, that might cause passing blame. Feels it should be permitted as a single project area and it should be removed and SBPF reapply with their engineer's review-. Bennett — He can see both sides: the house is permissible but he can't understand why it wasn't brought to ConCom for a permit. Stated he is beginning to lean toward asking it be pulled out as well. Topham — The contractor as well as the owner should be held accountable. Wood — The commission has the authority to penalize the contractor as well; the by law says "any person." Gasbarro — He doesn't think the work was done out of flagrant disregard, it was done out of fear of losing the house. This owner purchased the property in 2007. Champoux — The owner must have known the threat of possibly losing the house to erosion when he bought it. He still feels ripping it out would cause more damage than good. Wood — The owner has already moved the house. Stated that if this is denied at this level, on behalf of his client, he will appeal to DEP based upon the permissibility of the project under the Protection Act; he believes the DEP will approve it. Discussion about how to look at the project, legally or permissibility, and how to handle future similar incidents. Discussion about the enforcement process and how weak it is and ways to improve it. Page 1of5 Minutes for July 26 2017 adopted Aug. . 9 Phillips — Read the Federal Environmental Protection Agency- (EPA) regulations in regards to enforcement. Feels assessing a small fine will damage the ConCom's credibility; the work should be removed and the owner pay a fine; the fine would be compounded by the cost of removal. She does not agree that the DEP would automatically counter the ConCom ruling. Ray — Noted she has not evaluated that specific area for swallow nests but she has other areas along the bluff. It's concerning that some people will think the board is "making an example" of the property owner. It is important to treat everyone equally- and it shouldn't matter how much money the have in regards to a fine. The geo -tube project was an experiment and other areas are looking to that project to consider a similar structures for their property; she wonders if ripping it out or leaving this in would affect the data being collected from the SBPF geo -tube project. Personally, she is in favor of pulling it out and having the propem owner apply for a permit. Erisman — lygrees with his Ray about the geo - tubes; we are getting information off of that. Wood — Comparing this to the EPIC is not close; this commission doesn't have the fining apparatus they hare. Said he could get something in writing from SBPF about the compatibilm of this with their structure. Golding — Would like Town Counsel to render a decision on how best to decide this. D. Atherton — Referenced a point her NCC letter about the concern for the resource area, suggested the commission consult a professional whether or not this could be removed without damaging the resource area. Wood — This is an NOI for a project; the question is whether or not the project is permissible; he hasn't heard one reason why it wouldn't be permitted. Erisman — She had asked for information about how much sand and type of sand was put down; that hasn't been provided. We normally ask for that in consideration of similar projects. Ray — To the point it looks okay; we don't know for a fact what was used to put this together. D. Atherton — Asked when the enforcement order would be addressed. Wood — The projects construction is detailed in the NOI plan. We've complied with the enforcement order by bringing in the NOL Gasbarro — Coming back to the Performance Standards 205.13.1 relating to a coastal engineering structure, based upon the assemblage of materials, this is a soft solution and there is no other alternative on this property. Erisman — Feels that essentially this single structure now has two coastal engineering structure systems; asked if that is unusual. Feels this should have been done as an amendment to the SBPF permit; in heu of that, would like something in writing from their engineer stating there are no adverse impacts on their project. Bennett — He doesn't need any more information to make his decision. Steinauer — Doesn't see how this affects the SBPF geo -tube project; it's at the top of the bank. He feels the commission should find that this is coastal engineering structure based upon posts driven into the bank and location of hanging into the air; that would preclude it showing up in front of even- house. R. Atherton — It is of interest of the commission to go back to the Memorandum of Understanding with SBPF addressing liability. Wood — Requested a two -week continuance. Staff George Pucci, K &P P.C., said that the penalty should be included in the order and, per the Town bylaw", be referred back to the date the order was issued at $50 a day. _\ separate enforcement order would have to be issued to the contractor; then a citation issued. This commission is tasked with protecting the resource area; other enforcement actions have been used to bring a project into compliance with the performance standards to protect the interests outlined in the bylaw. This commission needs to look at this in regards to protecting the resource area; that hasn't been done to a satisfactory- level. Looking at this in the sense of issuing permits, you look at the conditions that are to be abated; a pre -1978 structure qualifies for protection and they would be eligible for whatever is necessary to protect the structure. Normallv, you look at protecting the toe first then addressing the upper bank. He will arrange for Town Counsel to be present at the next hearing and will set up a site visit. \lotion Continued to 8/9/2017 by unanimous consent. Vote N/A 4. Nantucket Islands Land Bank — 231 Polpis Road (26 -28) SE48 -2981 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Mark Rits, Site Design Engineering — This is to remove the existing structure, removal of invasive species, grade, replicate wetlands etc. Have since received letter from Massachusetts Natural Heritage (\I H) ruling no take. Might need a small amount of fill for the grading. Excavation for the replication would be from the upland side. Nantucket Islands Land Bank will come up with a limited planting plan and allow much to come in naturally. Public None Discussion (5:34) None Staff The intent is to eliminate the bamboo then see what native growth comes back; they would come back with an amendment if necessary. Have everything needed to close. Motion Motion to Close. (made by: Steinauer) (seconded by: Champoux) Vote Carried unanimously Page 2 of 5 Minutes for July 26, 2017, adopted Aug- _9 5. *Robert C. & Cherise R. Bransfield — 78 Millbrook Road (57 -23) SE48 -2989 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Art Gasbarro, Nantucket Engineering & Survey — For installation of a pool and fence outside the 50 foot buffer and plants within the 50 -foot buffer. Temporary dewatering would occur outside the 100 -foot buffer. He will provide a landscape plan showing the fence outside the 50 -foot buffer. The bottom of the pool will be 2 -feet above ground water. Public Edie Ray, Miacomet Avenue Discussion (532) Erisman — The shrubs within the 50 -foot buffer should be native species. Ray — Asked if the dewatering would be specified in the plans and if the pool maintenance operator has something stating no chemical has been added prior to dewatering. Staff Reviewed the wetland line and is in agreement with the plan. We've talked about what happens with drainage and discharge; we have the condition that the discharge/ drainage is outside the area of the concern and all chemical treatment is to cease three weeks prior to the draining. This can be conditioned that the treatment log is submitted to the office. Have everything needed to close. Motion Motion to Close. (made by: Topham) (seconded by: Champoux) Vote Carried unanimously 6. *%William A. Carson Trustee — 23R Clifton Street (49.3.2 -2) SE48 -2988 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Mark Rits, Site Design Engineering — There is a wetland resource area on an abutting propern; ancillary structures are outside the 50 -foot buffer; the septic system and main house are outside the 100 -foot buffer. Proposing removal of phragmites and Japanese knotweed and planting native species; will clip and drip late to the season or early next season. Public None Discussion (5:41) None Staff Have everything needed to close. ,\lotion Motion to Close. (made by: Champoux) (seconded by: Topham) Vote Carried unanimously 7. * The Estate of Patricia S. Walsh — 46 Shimmo Pond Road (43 -77) SE48 (Cont 08/09/2017) 111. PUBLIC MEETING A. Minor Modifications 1. Joan D. Prate] Nantucket Trust — 12 North Liberty Street (42.3.4 -171) SE48 -2963 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Representative Jeff Blackwell, Blackwell & Assoc. — Replace a patio with a wood deck outside the 50 -foot buffer. Staff Recommend issue as a Minor Modification. Discussion (5:45) None ,\lotion Motion to Issue as a Minor Modification. (made by: Steinauer) (seconded by: Champoux) Vote Carried unanimously 2. -,\lonomoy, LLC — 20 Monomoy Road (54 -154) SE48 -2952 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Representative Art Gasbarro, Nantucket Engineering & Survey — Work is within buffer zone to bordering vegetated wetland and coastal bank; this increases the footprint of the structure with a corner of the deck within the 50 -foot buffer. The overall project is still a net benefit. Staff Recommend issue as a Minor Modification. Discussion (5:47) None Motion Motion to Issue as Minor Modification. (made by: Champoux) (seconded by: Steinauer) Vote Carried unanimously B. Certificates of Compliance 1. Wingspread 86 Realty Trust — 8 Wingspread Lane (27 -17.3) SE48 -2848 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Staff For residential construction; only a part of the lawn is within the buffer zone. It is in compliance. Discussion (5:51) None Motion Motion to Issue. (made by: Champoux) (seconded by: Topham) Vote Carried unanimously 2. Haulover, LLC — 165 Wauwinet Road (7 -1.1) SE48 -2907 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Staff Need to continue this; need to check in with the Board of Health. Discussion (5:52) None Motion Continued to 8/9/20127 by unanimous consent Vote N/A Page 3 of 5 Minutes for July 26, 2017, adopted Aug. 9 3. Merrill A. McCluskey — 110 Orange Street (55- 401.1) SE48 -2980 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Staff This was in response to an Emergency Certification for broken sewer pipe; it is fixed. Discussion (5:53) None Motion Motion to Issue. (made by: Steinauer) (seconded by: Topham) Vote Carried unanimously 4. Kobacker — 12 &14 Monomoy Road (54 -51 &142) SE48 -949 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Staff The work was never done. risking to invalidate the order Discussion (5:54) None Motion Motion to Invalidate SE48 -949. (made by: Champoux) (seconded by: Topham) Vote Carried unanimously C. Orders of Condition 1. Nantucket Islands Land Bank — 231 Polpis Road (26- 28)SE48 -2981 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Staff Standard conditions for herbicides and irrigation and photo monitoring. Will add Condition 24 about a licensed arborist. Discussion (5:54) Champoux — A licensed arborist should oversee all tree removal. \lotion Motion to Approve as amended. (made by: Topham) (seconded by: Chamoux) Vote Carried unanimously 2. Robert C. & Cherise R. Bransfield — 78 Millbrook Road (57 -23) SE48 -2989 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Staff Will add Condition 22 about plantings and no cultivars. Discussion (5:58) Erisman — Condition for native plantings within 50 -foot buffer and no cultivars. Motion Motion to Approve as amended. (made by: Champoux) (seconded by: Erisman) Vote Carried unanimously 3. William A. Carson Trustee — 23R Clifton Street (49.3.2 -2) SE48 -2988 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Staff Noted an error: needs to add Finding 2 about the main dwelling, septic, and drivewav being outside the buffer. Discussion (6:01) None Motion Motion to Approve as amended. (made by: Steinauer) (seconded by: Topham) Vote Carried unanimously D. Extension Requests 1. Lower Pocomo Nominee Trust — 88 Pocomo Road (15 -42) SE48 -2690 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Staff .asking to extend one year. Discussion (6:03) None `lotion Motion to Issue the one -year extension. (made by: Champoux) ',seconded by: Steinauer) Vote Carried unanimously 2. Blue Shutters Realty- Trust — 4 Hulbert Ave (42.1.4 -2) SE48 -2582 Sitting Bennett, Erisman, Steinauer, Champoux, Topham Staff Have already issued two one -year extensions; they are asking for the last one -year extension. Discussion (6:05) Motion Motion to Issue the one -year extension. (made by: Steinauer) (seconded by: Topham) Vote Carried unanimously E. Other Business 1. Conveyance of properties — 55 Warrens Land Road, 84R Union Street, 3 Mioxe's Pond Road Sitting Bennett, Erisman, Steinauer, Champoux, Topham Staff It took a long time to get the wording for the motion correct. The properties are co -owned by ConCom and the Town; the motions are to convey- them to Nantucket Islands Land Bank. Read the Planning Board motions for conveyance. Discussion (6:06) Discussion about the possibility of putting conservation restrictions on the Wood Propem . Motion Motion to Approve conveyance of the Wood Property at 55 Warrens Landing Road. (made by: Steinauer) (seconded by: Topham) Vote Carried unanimously Motion Motion to Approve conveyance of 84R Union Street and 3 Mioxe's Pond Road. (made by: Steinauer; (seconded by: Champoux) Vote Carried unanimously 2. Approval of Minutes 07/12/2617: Adopted by unanimous consent Page 4 of 5 Minutes for JuIv 26 2017 adopted Aug. 3. Enforcement Actions (6:18) a. Staff will be sorting out the issue of fines on other enforcement actions with Town Counsel. The Board of Selectmen recently adopted their timeline for annual Town Meeting; Staff and Town Counsel will work on draft language for a Town warrant article in regards to strengthening ConCom's ticketing procedures and fines. The draft should be read,, for the commission by Labor Day; the article needs to be in by January 2018. 4. Reports: a. NP &EDC, Bennett b. Mosquito Control Committee, Erisman 5. Commissioners Comment a. Steinauer — Noted that there are a lot of bats on the island; we need to ensure mosquito treatment doesn't injure them and other insect eating birds. b. Bennett — On the railroad -bed bike path, someone was asking about the pull off. 6. Administrator/ Staff Reports a. None Motion to Adjourn: 6:33 p.m. Submitted by: Terri- L. Norton Page 5 of 5