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HomeMy WebLinkAbout2017-8-9Commissioners Minutes for August 9, 2017, adopted Aug. 23 CONSERVATION COMMISSION N A N i U K; PUBLIC MEETING T 0 W �J L= E R r 2 Bathing Beach Road Nantucket, Massachusetts 02554 A www.nantucket- ma.gov 2017 AUG 24 AM 8' 29 Wednesday, August 9, 2017 4 Fairgrounds Road, Training Room — 4:00 p.m. Andrew Bennett(Chair), Ashley Erisman('ice Chair), Ernie Steinauer, David LaFleur, Ben Champoux, Ian Golding, Joe Topham Called to order at 4:04 p.m. Staff in attendance: Jeff Carlson, Natural Resources Coordinator; Joanne Dodd, Natural Resources Office Administrator; Terry Norton, Town Minutes Taker : \ttending Members: Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham :Absent Dlembers: None Late Arrivals: None Earlier Departure: None \genda adopted by unanimous consent *Matter has not been heard I. PUBLIC MEETING A. Announcements and Public Comment Edie Ray — Thanked the commission for looking at conditions on Smith's Point. It will be open to driving within a couple of days; asked the public to be mindful of the driving in the flats. Noted there is a fresh set of tire tracks on the mud flats so it has to be someone with a vehicle already on the Point. 11. PUBLIC HEARING A. Notice of Intent 1. Edwin Snider RT — 1 Brock's Court (42.3.4 -84) SE48 -2834 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Arthur J. Heath, for the Fraziers — This is about the unpermitted move of the house and putting the house on a crawl space rather than a full basement. At the last hearing, Mr. Paul Feldman had requested new testing on the premises; contacted Dan Malloy and Mark Rits, Site Design Engineering, who to provide information relevant to this application. They submitted documents explaining why they have properly delineated the wetlands; their delineation is based upon the historical delineation. Noted the area was changed long before the Fraziers acquired the property; the buffer zones have long since been tampered with. Pointed out that the N OI relates to actions of a prior owner and asked that the NOI be approved and an Order of Conditions be granted. One idea was to have joint visits to reach a mutually- agreeable decision; however pointed out a historic pattern of joint visits followed by "strident" letters. Mark Rits, Site Design Engineering — This was initially delineated by David M. Haines, Haines Hydrogeologic Consulting in the late 1990s early- 2000s. The delineation has been looked at over the years by experts and confirmed. Read a decision from Laurentide Environmental. The wetland line is slightly up gradient from that approved by Mr. Haines and reflects changes over the years; in the 1950s, there was a barn in the site of the current wetland. The area has been maintained as lawn for an extended period of time. The delineation done by Laura Schofield of Schofield Brothers of Cape Cod has been approved by the commission technical consultant. In fact the previous move relocated the house away from the wetland. Noted there is no adverse impact on water flow or the resource area. Feels if the previous owner had made the requests to the board it would have been approved. Libby Frazier Public Paul Feldman, counsel for abutters Marsh Fader, 36 Liberty Street David M. Haines, Haines Hydrogeologic Consulting Bruce Griffin, New England Environmental, Inc., wetland scientist for abutters Discussion (4:07) Erisman — She was under the impression that it wasn't one of the neighbor's counsel that would go on site; she recalls it as Staff. Also in regards to the previous owner, there are a number of outstanding enforcement orders issued against the current owner. Rits — As far as the issues of the enforcement order for work since the house was moved, those have been rectified. He believes the well put in for foundation draining was cut and capped. Reviewed the three n-pes of testing done on the property. Champoux — Confirmed whether or not some of the testing not done by Schofield was looked at by a third - party wetland scientist. There are some non - conclusive findings; we should request complete information to delineate the wetlands once and for all. Bennett — We are not in full agreement about the delineation; by approving this would approve the Page 1of8 Minutes for .august 9 2017, adopted Aug. 23 Erisman — She feels this should be denied due to lack of receiving requested information; the NOI would be resubmitted so that everything is clear; this has been going on for two rears. Steinauer — Asked what it means if this is denied in regards to moving the house. Heath — With respect to approving the move of the house udthoat being bound by the delineation, that would be acceptable to his client. Pointed out that the house was moved to a better place in regards to the wetlands, the alternative options are to move the house back into the wetland or demolish it; neither is reasonable. They want delineation of the wetlands across all properties; asked the commission that any conditions be only upon the delineation within the parcel. Erisman — We've been asking for the information of wetland delineation -within that propem- only and haven't gotten it. Rits — Reiterated that the house was moved away from where the pervious patio is now and the impact is less. By any standard, what was done previously- is a benefit to the resource and its buffer. Steinauer — He understands the concern about the wetland line but we wouldn't gain anything by starting over; this has been an extensive hardship on not only the commission but the neighbors. Doesn't believe starting over is the civic - minded thing to do. He's okay with approving it as a net benefit but not approving the wetland line. Discussion about the repercussion of approving this as 'Mr. Steinauer has suggested of approving with the current delineation. Rits — Once this is approved, they can work with Mr. Carlson on any outstanding issues. Feldman — What he has just heard would create a precedent that would turn wetland protection on its head. The applicant has the burden to present the delineation to the ConCom. He does not think ConCom should write a condition that says they "don't need the delineation line." Suggested a third alternative: look at the evidence, which is in the record right now, to make a decision. His client's wetland scientist can explain the need to establish the jurisdictional wetland so the buffer zone can be accordingly revised. Noted that Mr. Bruce Griffin's evidence of hydric soils is in the record. The :Massachusetts Department of Environmental Protection PEP) notes state there is no evidence of models; but -Mr. Griffin found oxidized rhizosphere, which is a type of modeling. There is also vegetation that supports the wetland line. He feels the information is not coming from the applicant because it supports the abutters argument that the delineation should be redrawn. The previous owner did not get a permit to move the house. However, the current owner has taken on multiple projects and improvements on this property over time, all without coming to this commission: deck, retaining wall, and a bluestone patio, which is in his opinion impervious. No one is going to make the Fraziers move the house, but the commission can, and should, make them get rid of the deck, retaining wall, and patio. \1r. Griffin is willing to present back -up evidence for his findings. Earlier today, he submitted a response to the information the commission received on Friday, which he feels is unresponsive to what the commission asked; reviewed that response. There was an enforcement action about a chicken coop, which the commission told the Fraziers to remove out of the wetland boundary; it was put on the patio during the winter and no-,v it is back in the same place. In the spring, the landscaper trenched, piped, and connected throughout the lawn area rather than simply pumping out the crawlspace. On the propem today, the entire lawn has been fenced without an NOI; this is a brand new violation. This has been going on for two rears. Steinauer — Suggested approving the move of the house with the requirement for an NOT for all the other work and the delineation. Several commissioners stated they want the delineation before approving this. Discussion about the information that was provided and approved by the third -pan consultant and subsequent information provided and how to proceed. Heath — The applicant is willing to have Ms Schofield evaluate the information provided by -Mr. Griffin. Fader — .-About V12 years ago, when additional samples were taken, those samples came from several properties. The people from different organizations gathered to make the decision as to whether or not the soil was hydric. Haines — Clarified that his delineation was done for the Pratel propem- for estate management purposes; he stands by that delineation but not any others. He did not go onto this property because he did not have permission; he drew a straight line between two points on properties that he could access, that line cross this property. Heath — In regards to the January 7, 2016 visit, there is a response to that information. Believes there is some miscommunication going on; they met with \1r. Carlson and decided that a lot of information was in the file but scattered. The letter consolidates that information; they did not do additional testing because he didn't think it would be productive. Feldman — No one has said they disagree with the hvdric soil findings; this notion there is a disagreement between the two scientists' information is wrong. Photos of the soil are in the record. Bennett — The idea of approving the house move without the delineation is not going to happen. Erisman — We have requested other soil information and that request should be held to the applicant. This should be denied due to requested information not being provided.. Griffin — Stated that his test pits were decisively- hydric. He cannot attest to -Is Schofield's test pits. Topham — Wants a drop dead date. Other commissioners are ready to close. Page 2of8 Minutes for August 9 2017 adopted Aug. 23 Frazier — Asserted that they never received notification that new holes were necessary. Erisman — Stated that request was made very clear. Staff Some issues have been addressed and others have come up; the only outstanding question is the status of the foundation draining system. The approval could include findings that the delineation is not approved but that the move has no adverse impact on resource areas. Could including findings; simple draft something that makes it clear the delineation is not being approve, just the project at hand. Anything new that came in would require a complete delineation of the resource areas. You are weighing the impact of the activity- versus the performance Standards; the buffer zones are set up to help give a framework and guideline to where the impacts start to appear. On sites where the buffer is disturbed, it's harder to quantify the impact. Need to keep an eye on what interests are not being protected. Two grounds for denial are: denial due to lack of information that was requested or denial based upon the project can't be conditioned against adverse impact. ConCom can't deny a project based upon it being a violation; it must be denied based merits and standards as related to the impact on the resource area. The commission can continue this to a specific date and if it goes beyond that, it will be denied. Drainage in this neighborhood is an issue. We need to define this area so everyone knows what this corner looks like. Motion Motion to Close. (made by: Erisman) (seconded by: LaFleur) Vote Carried 6 -0 / /Golding recused 2. Mary D. Starr — 19 East Creek Road (55 -60) SE48 -2985 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Art Gasbarro, Nantucket Engineering & Survey — Asked this be continued for two weeks. Public None Discussion (5:47) None Staff None Motion Continued for two weeks without objection. Vote Carried 3. Steven T. & Erin P. Freeman — 93 Baxter Road (30 -10) SE48 -2984 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Art Gasbarro, Nantucket Engineering & Survey — This is the third hearing; he submitted supplemental information in response to the first two public hearings; reviewed that information: material inventon-, dimensions, and `Sconset Beach Preservation Foundation (SBPF) impact letter, and a letter explaining why this is not a coastal engineering structure (CES). Per a 25 -point analysis, he concluded there is no adverse impact on the protected interests. Asked the commission to look at the regulations and the protected interests. The area is now quite stable and revegetating. He consulted with Ornithologist Bob Kennedy, PhD, about the swallows; Mr. Kennedy did not find evidence that this area provided them quality habitat. A vegetated bank promotes bio- diversity and habitat. He did an alternative analysis in regards to what would happen if this were removed or if other means had been used. Glen `Food Public D. Anne Atherton, Nantucket Coastal Conservancy (NCC) Edie Ray Maureen Phillips, NCC Discussion (5:53) Steinauer — Even though the swallows are not listed as endangered, aerial insectoids is one of the most rapidly declining birds in the Commonwealth. The commission has permitted similar installations in gullies; but the number of 4X4s needed to support this qualifies it as a structure. A pre -1978 house qualifies for protection. Feels this should be approved but declared a structure. Wood — Combining in the wood posts, this might bevviewed as a structure; but looking at the unique situation, the board could find this as not a structure. The house is pre -1978; they won't object to the commission finding it a CES. Erisman — During the site visit, she was trying to judge how much beach grass is actually- living in the soil conditions; it looked like 40% of the bugs were dead. She also questions if this is in fact stabilizing the bluff, to truly stabilize, the bank needs to erode a little. Golding —Noted that in 2014 the property owner went to the Board of Selectmen (BOS) requesting to land swap, which was turned down. There is a Jan 19 2016, Historic District Commission trench permit for a driveway- catch basin. He doesn't understand why the owner didn't come before this commission. In his opinion, this is an enforcement issue. It is represented that if this is pulled out, it will negatively damage the bluff. If we don't ask that it be removed, it affects ConCom's relationship with the Island. Pulling it out affects only the owner. Steinauer — He believes ConCom still has to evaluate this based upon performance standards. We can only ask that it be removed because it doesn't meet a performance standard. The pre -1978 house qualifies for structural protection. Given the alternative, he prefers this over any other hard structure; it is minimally invasive. We have numerous findings that provide credibility in not approving similar work anywhere else. Talking to Mr. George Pucci, Town Counsel, the TNIassachusetts Department of Environmental Protection (DEP) will probabh Page 3 of 8 Minutes for August 9, 2017, adopted _iue. 23 overrule ConCom if we deny this; if that happens, ConCom cannot condition it or deny a similar project elsewhere. Asked what standards commissioners think this is not meeting. Erisman — Looking at performance standards, she believes this w II have an adverse impact on the bluff, which really needs to erode; now it can't. Golding — The bluff is not at a 30 degree angle of repose. It was a perfect habitat for bank swallows before this work was done, but it isn't now. Swallows established themselves quickly once and area becomes a naked, vertical bluff. Wood — Mr. Kennedy's report was based on historical data and a recent site visit; he determined this area %vas not appropriate bank swallow habitat. D. Atherton — An assertion was made that referenced 1\1r. Kennedv's report, which is based on what he saw on June 20, 2017; that was after the structure was put in. Photos from March _April show- the habitat as it existed at that time. In June, the property did not contain suitable nesting-, that suitable habitat didn't exist because of this installation. Not only is this illegal but it destroyed wild -life habitat. Erisman — It looks like they took out the fence. Gasbarro — The fence was relocated landward. Going back to the report filed with the original application, since 2005, Mr. Kennedy has submitted evidence of over 95 possible habitats along the bluff up to Hoicks Hollow and he lists the number of swallow nesting cavities in that area; none have been at this location. Golding — Argues that before this installation, this was suitable habitat. Gasbarro — That argument is flying in the face of an expert who has been studying the area for years. Steinauer — Mr. Kennedy has been studying the bluff for man- years and determined this site has not been used for nesting; just because it's a vertical bank doesn't make it ideal for nesting; there are other criteria. Wood — In Mr. Kennedy's opinion, the bank was over steeping and susceptible to collapse and so not adequate for nesting. We've debated this for too long; this needs to close tonight. Erisman — She was surprised at the number of posts holding the jute at the top of the bluff, she doesn't know - how many there are. Also she wants to ensure the sand on the front of this is appropriate for the top of the bank. Ray — She has studied bank swallows; they are very ephemeral; the colonies can get large with the young prospecting nearby suitable areas. A successful colony will produce young that want to breed near their natal area. With the structure and planting there, this area is precluded as a nesting area. If this structure is allowed to be extended along the bank, other prospective areas will be destroyed. Phillips — NCC discovered the work was being done and brought it to the attention of ConCom and the photos say much. No one questions Mr. Kennedy-'s work, but he says "there is no suitable habitat." That comports with what Ms Atherton and Ms Ray are saying, when Mr. Kenned- looked at the area, everything had changed. His opinion was clearly limited to what was happening on June 20. She believes that it is completely irrelevant to talk about what other people might do in the future. The contractor and owners had knowledge of their legal requirements. We need to put a stop to the attitude of flaunting the requirements of regulatory boards. Wood — Mr. Kennedy's report shows 650 linear feet of area, to include 200 feet to the north and 300 feet to the south, that he determined did not contain suitable habitat for bank swallows. The general area reflects what this area looked like. Erisman — Looking at the "unsuitable" area, she wonders if that is because of the geo -rube project that altered the area above it. She does not feel the performance standards are met. Golding — He also does not feel performance standards are met. Bennett — He feel the standards are met except for the bank swallows. Champoux — On page 4 of Mr. Kennedy's report, it states the area doesn't contain suitable habitat due to the lack of vertical space of five feet or more; it doesn't go into the other criteria. He'd like to hear from Mr. Kennedy what that other criteria is. Erisman — That's on page 1 of the report. Steinauer — What looks strange is how much of this is undercut. This bank is not designed to erode. Erisman — It's the same performance standard for the area. Doesn't feel the project makes the bank more stable. The sand being used is not appropriate where this bank is giving out silt and clays. Gasbarro — Another question to ask is what is the most reasonable alternative to protect this pre - 19-'8 house. We feel this is the most reasonable alternative as well as it meets performance standards. Champoux — We've permitted something close to this with the exception of the posts. Steinauer — There are many reasons that make this a unique case; by approving this project, we can set criteria that prevent it in other places. If we are overruled, we will lose that. We took care of the enforcement order because was asked they file an NOI, which they did. Bennett — Agrees with \Ir. Steinauer. Erisman — The findings have to include something about double coastal engineering structures. There's a lot going on at this property. In her opinion, the beach grass wasn't looking successful; it will need to be replugged. Page 4of8 Minutes for August 9 2017 adopted Aug. 23 Staff Talked to Mr. Pucci; all applications must be evaluated against the performance standards; a denial must be conditioned in relation to the performance standards. We have to deal with the N OI as to whether or not the structure meets performance standards or can be conditioned to meet performance standards; as a separate action there are procedures in place to deal with enforcement. A classic example is the violations of 8 - -99 Eel Point Road; a large discussion was whether or not the structure could meet performance standards; it was found it could not so it was removed; a follow up was an NOI for a structure that could. Doing something illegally is not grounds for denial; that's what enforcement powers are for. For us to re- engineer this project is beyond our scope at this point. The commission can still fine them. Have everything needed to close. Motion Motion to Close. (made by: Steinauer) (seconded by: Champoux) Vote Carried unanimously 4. * The Estate of Patricia S. Walsh — 46 Shimmo Pond Road (43 -77) SE48 -2990 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Art Gasbarro, Nantucket Engineering & Survey — This is first step for a Chapter 91 license for a structure that's been in existence since 1971: an elevated timber pier, walkway, and steps to the beach. Public Edie Ray Richard Atherton. Discussion (7:05) Erisman — Confirmed that it was put in prior to the requirement for a waterways license. Ray — asked if the public way has to be American's with Disabilities Act (ADA) accessible. Atherton — Asked if it is reasonable for this commission to be aware where the access would be cited. Staff They need a valid order of conditions to file for a Chapter 91 license. This is a permit to maintain in -kind a previously- existing structure. 1 benefit to the license is the public accessibility. Typically Chapter 91 does not require ADA compliance; that would have to be asked for through the licensing process. Anytime there is a modification asking for public access, they have to ask ConCom for it. Noted that Roads and Rights -of Way Committee maintains a list of public accesses. Have everything needed to close. ,\Iotion Motion to Close. (made by: LaFleur) (seconded by: Steinauer) Vote Carried unanimously 5. * Nantucket Pond Coalition — Eastern Shore of Hummock Pond (81;85 -N /A) SE48- (Cont 08/23/2017) 6. * Lee Real Estate, Inc — 15 Aurora Way (56 -447) SE48 -2993 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Don Bracken, Bracken Engineering, Inc. — This is for residential development in a newly created subdivision. There are two bordering vegetated wetlands: one on the property and one south of the property. Going back to 1950s, most of the lot has been disturbed. All structures will be outside the 50 -foot buffers. The lot slopes from west to east, from elevation 27 to elevation 24. A water test showed ground water to be at elevation 22.2. Both foundations will be above the water table but they need waiver to allow a 1.3 -foot separation from ground water. Some grading will be raised around the house. Within the 25 -foot buffer will be revegetated with native brush. This will be tied into Town sewer and water. Public None Discussion (7:00) Bennett — Asked if there will be irrigation. Bracken — Temporary irrigation within the 25 -foot buffer. The 25 -foot buffer will be marked with posts to prevent mowing. Staff Have everything needed to close. \lotion Motion to Close. (made by: Steinauer) (seconded by: Topham) Vote Carried unanimously 7. * James M. & Linda P. Waterbury — 7 Willard Street (41 -64) SE48 -2991 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative David M. Haines, Haines Hydrogeologic Consulting — This is for an at -grade addition to an existing house. There is a bordering vegetated wetland on abutting Nantucket Conservation Foundation land. Footings %will be within two feet of the water table so will be requesting a waiver; also asking for temporary dewatenng. Public None Discussion (7:14) Erisman — Any lighting should be directed away from the resource area. Staff Have everything needed to close. Motion Motion to Close. (made by: Topham) (seconded by: LaFleur) Vote Carried unanimously Page 5 of 8 Minutes for :August 9. 2017. adopted Aug. 23 8. * Gloria Grimshaw — 22 Quidnet Road (21 -33) SE48 -2992 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative David M. Haines, Haines Hydrogeologic Consulting — This is for a su imming pool and ancillary structures outside the 50 -foot buffer. Most work is within exiting lawn. The deep -pool test for septic showed a 10 -foot separation between the pool and groundwater. _Asked to continue for the Massachusetts Natural Heritage ruling. Public None Discussion (7:18) None Staff He conducted a review of the wetland; it was correctly verified. This would be conditioned to discharge away from the resource area. \lotion Continued for two weeks without objection. Vote N /A 9. * North Nominee Trust — 73 Easton Street (42.4.1 -109) SE48 -2994 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Jeff Blackwell, Blackwell and Associates, Inc — This is to lift the structure above the flood plain. Resource is land subject to coastal storm flowage and bordering vegetated wetland. Requested waiver for 2 -foot separation from groundwater; will be pumping temporary dewatering into Town sewer. Public None Discussion (7:22) None Staff Have everything needed to close. Motion Motion to Close. (made by: Steinauer) (seconded by: LaFleur) Vote Carried unanimously 10. * Sayles 103 Washington Trust — 103 Washington Street (55.1.4 -37) SE48 -2995 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Paul Santos, Nantucket Surveyors — This is a commercial structure within land subject to coastal storm flowage and within the 50 -foot buffer to a saltmarsh to the east across Washington Street. The work is to replace and reconfigure two elevated walk -in coolers and associated loading docks. No grade change. Public None Discussion (7:25) None Staff Have everything needed to close. Motion Motion to Close. (made by: Champoux) (seconded by: LaFleur) Vote Carried unanimously III. PUBLIC MEETING A. Requests for Determination of Applicability 1. Wade Cottages Nominee Trust — 7 Gully Road & off Gully Road (73.1.3- 121,122,123) Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative David M. Haines, Haines Hydrogeologic Consulting — Resource area delineation for three lots in Cod Fish Park: land subject to coastal storm flowage, coastal dune, and dune field. Public None Discussion (7:31) None Staff The bluff doesn't qualify as a coastal bank; it doesn't intersect the dune field, at this time. Recommend this be issued as a Positive 1,A confirming boundaries \lotion Motion to Issue as recommended. (made by: Steinauer) (seconded by: Topham) Vote Carried unanimously B. Minor Modifications 1. Rabil — 141 Cliff Road (30- 1,2,3,4,5,6,7) SE48 -2972 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Paul Santos, Nantucket Surveyors — This modification reduces amount of footprint from the original permit. Reviewed the changes. The removable, aluminum beach stairs are not part of this application. Reviewed the planting plan for wetland replication required by Condition 22. Public None Discussion (7:36) Erisman — Blue River Heather is not native. Staff The conditions state no cultivars. Recommend this be issued as a minor modification. Motion Motion to Issue as a minor modification. (made by: Steinauer) (seconded by: Champoux) Vote Carried unanimously Page 6 of 8 lfinutes for august 9 2017 adopted Aug. 23 C. Certificates of Compliance 1. Haulover, LLC — 165 Wauwinet Road (7 -1.1) SE48 -2907 (Cont 08/23/2017) 2. Old North Wharf Cooperative, Inc — 12,14,16,18,20, &22 Old North \X'harf (42.3.1- 251, 252,253,254,255, &256)SE48 -2 -5- Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Staff This was for replacement of an existing bulkhead; work is completed. Recommend this be issued. Discussion (7:42) None ,\lotion Motion to Issue. (made by: Steinauer) (seconded by: LaFleur) Vote Carried unanimously 3. White — 47A West Chester Street (41- 227.1) SE48 -2925 4. White — 47A West Chester Street (41- 227.1) SE48 -2865 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Staff SE48 -2925 dealt with cleaning up areas that had been cleared and the structure; SE48 -2865 was to install a patio and spa. Everything is in; the restoration area looks nice. Under SE48 -2865, recommends keeping the ongoing condition which requires monitoring for two more reports. Discussion (7:43) None \lotion Motion to Issue both- with the ongoing monitoring condition on SE48 -2865. (made by: Steinauer, (seconded by: LaFleur) Vote Carried unanimously D. Orders of Condition 1. Edwin Snider RT — 1 Brock's Court (42.3.4 -84) SE48 -2834 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Topham Staff Asked for direction in drafting a positive or negative order of condition. If this is denied, they can come back because they would be providing different information. He will look into additional violations in the interim. Discussion (7:45) Erisman — Asked that this be denied on the basis of lack of requested information. Consensus agrees. \Iotion N /.1 Vote N/A 2. Steven T. & Erin P. Freeman — 93 Baxter Road (30 -10) SE48 -2984 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Staff The piping is part of this application. He drafted one each. Reviewed the approval draft. He will add Finding 4 declaring it a CES to protect the structure. Will add Finding 5 about this parcel not being bank swallow- habitat. Will add conditions that all plantings must be maintained at a 75% success rate and replacement tubes require ConCom applications. Discussion (7:50) Gasbarro —The piping is a critical part of this in keeping the run -off from eroding the bank. Steinauer — There needs to be findings that this is a CES, not bank swallow habitat, and the house can't be moved. Golding — The personal observations of three people indicate that this could have been bank swallow habitat. Erisman — Mr. Kennedy indicated there was 650 feet that wasn't suitable habitat, not just this site. She wants a set of failure criteria included in the Order of Condition; she's concerned about how- poor the beach grass looks already. She also noticed an invasive species starting to seed up there. Champoux — We need to ensure that if this collapses it will be cleaned up. Golding — He doesn't think the pre -1978 section is absolute; he wants to hear from Town Counsel. Steinauer — The Act reads, "pre -1978 structures shall be protected by CES" not "should be." Erisman — She wants to know about the two separate CES projects; this property already qualified for protection with the fourth geo -tube. Now it has this project. Bennett — Noted that there is another site with two projects; there is the terracing and an old bulkhead that could be argued as a pre - existing CES. Staff — Read the performance standard for coastal banks in regards to pre-1978 structures. The State _pct doesn't include "public infrastructure" included in the local act. Golding — He feels this goes against "all sorts of interests" and would like Town Counsel to talk about exceptions. He's concerned other similar requests will cut off all access to public beaches. Some of the pre - 1978 structures have been altered; he wants to know if the regulation applies to interior and /or exterior alterations. Erisman — Under the local definition, she's concerned that the Town could use Baxter Road being endangered as an excuse to put this sort of structure all along the top of the bluff because the road is public infrastructure. She feels Mr. Kennedy's opinion opens a dangerous door; she's not convinced this is stabilizing the bank; the sand being used is not what is normally found at the top of the bank. She feels there are performance standards this does not meet. There needs to be failure criteria. \lotion Continued for two weeks without objection. Vote N/A Page 7 of 8 Minutes for August 9 2017 adopted Aug. 23 3. The Estate of Patricia S. Walsh — 46 Shimmo Pond Road (43 -77) SE48 -2990 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Staff Will change Condition 18 about maintenance requiring a ConCom permit. He doesn't believe Public access is within ConCom jurisdiction; it's not covered by the Wetlands Protection Act. Discussion (8:23) Erisman — .Asked about maintenance. Golding — Asked about adding something on public access. Motion Motion to Issue as amended. (made by: Stemauer) (seconded by: LaFleur,) Vote Carried unanimously 4. Lee Real Estate, Inc — 15 Aurora Way (56 -447) SE48 -2993 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Staff Will add Condition 21 about redirecting lighting away from the resource area. Discussion (8:28) None Motion Motion to Issue as amended. (made by: Stemauer) (seconded by: Topham) Vote Carried unanimously 5. James M. & Linda P. Waterbury — 7 Willard Street (41 -64) SE48 -2991 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Staff Will add Condition 19 about redirecting lighting. Discussion (8:30) None Motion Motion to Issue as amended. (made by: Champoux) (seconded by: LaFleur) Vote Carried unanimously 6. North Nominee Trust — 73 Easton Street (42.4.1 -109) SE48 -2994 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Staff No conditions. Discussion (8:30) None Motion Motion to Issue as drafted. (made by: Champoux) (seconded by: Steinauer) Vote Carried unanimously 7. Sayle 103 Washington Trust— 103 Washington Street (55.1.4 -37) SE48 -2995 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Staff No conditions. Will add Condition 19 requiring all ramps to allow flow through. They can come in for a minor modification if the plan needs to be changed to allow flow through. Discussion (8:31) Champoux — There was question about whether or not the loading dock would have flow through; asked if that should be a conditioned requirement. Motion Motion to Issue as amended. (made by: Champoux) (seconded by: Steinauer) Vote Carried unanimously 8. Rabil — 141 Cliff Road (30 -1 -7) SE48 -2972 (Reissue) Sitting Bennett, Erisman, Stemauer, LaFleur, Champoux, Golding, Topham Staff This was recorded with a typo; that needs to be corrected and the Order of Conditions recorded again. Discussion (8:34) None Motion Motion to Re -Issue as drafted. (made by: Steinauer) (seconded by: LaFleur) Vote Carried unanimously E. Extension Orders of Conditions 1. Liberty Realty Trust — 36 North Liberty Street (41 -265) NAN -113 Sitting Bennett, Erisman, Steinauer, LaFleur, Champoux, Golding, Topham Staff Asking for a one -year extension. Discussion (8:35) None Motion Motion to Approve a one -year extension. (made by: LaFleur) (seconded by: Topham) Vote Carried unanimously F. Other Business 1. Approval of Minutes: 07/26/2017 _adopted by unanimous consent. 2. Enforcement _-Actions a. None 3. Reports: a. None 4. Commissioners Comment a. None 5. administrator /Staff Reports a. He will be scheduling a public discussion on regulations and by -law adjustments to enforcement. Motion to adjourn: 8:37 p.m. Submitted by: Terry L. Norton Page 8 of 8