HomeMy WebLinkAbout2017-11-29Minutes November 29 2017 adopted Dec. 20
CONSERVATION COMMISSION
PUBLIC MEETING
2 Bathing Beach Road
Nantucket, Massachusetts 02554
www.nantucket-ma.gov
Wednesday, November 29, 2017
4 Fairgrounds Road, Training Room — 4:00 p.m.
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Commissioners: Andrew Bennett(Chair), Ashley Erisman('ice Chair), Ernie Steinauer, David LaFleur,
Ben Champoux, Ian Golding, Joe Topham
�_auect to order at 4:UU p.m.
Staff in attendance: Jeff Carlson, Natural Resources Coordinator; Joanne Dodd, Natural Resources Office Administrator
.Attending Members: Bennett, Erisman, Steinauer, Golding, Topham
Absent Members: LaFleur, Champoux
Late Arrivals: None
Earlier Departure: None
Agenda adopted by unanimous consent
'Matter has not been heard
1. PUBLIC MEETING
A. Announcements — Next meeting is December 20, 2017; the one after that is January 10, 2018
B. Public Comment — None
IL 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 (12/20/2017)
2. 12 North Road Trust — 12 North Road (43-82) SE48-3022
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Documentation Site and topographical plans, photos, requisite departmental reports and correspondence.
Representative Kevin, Dale, Vaughan, Dale, Hunter and Beaudette, P.C. — This is a proposal to repair an existing and
permitted coastal erosion structure (CES); the board asked for further information. In 1999, the board ruled to
permit construction of erosion barrier to protect the pre -1978 structure. Over time, the structure was
renovated and resited on the property
Stan Humphries, LEC Environmental — Explained the work to repair and stabilize the existing CES.
Seth Wilkinson, Wilkinson Environmental
Bob Perry, Site Engineer
Public Emily Molden, Nantucket Land Council
Discussion (4:03) Erisman — Confirmed whether or not rubble will be removed.
Steinauer — Feels leaving the stones behind the bulkhead is inappropriate; asked the advantage to leaving it.
Wilkinson — To facilitate percolation.
Golding — The substantial improvement of the structure removes it from statutory protection and that should
be noted and this project conditioned accordingly.
Dale — When a CES was approved, it met the requirements; although it was renovated, the central portion of
the pre -1978 structure remains on the property and was incorporated into a new structure. In his opinion
ConCom has the authority to allow this work.
Bennett — In 2003, the remaining part of the original structure was approved for removal and construction of
a new dwelling.
Erisman — The rubble is not beach compatible and would introduce unnatural minerals to the beach. We don't
know what's in that rubble.
Bennett — This as an initial design would not go over well. He understands the percolation issue but that is a
large layer of stone and looks like trash.
Steinauer — Questions how all the rubble would be removed
Dale — Noted that much of the stone was pre-existing.
Humphries — Contends that the water filters through the sand so wouldn't introduce contami_-tants into the
environment.
Dale — They will look at this again to ascertain the condition of the rubble and how best to remove or deal
with it.
Bennett — The three components of this project are the bulkhead, the Wilkinson's array, and the unpermitted
deck on the bank.
Steinauer — This is not a landing for the steps and should be outside the no -build buffer. In the past -,ve've
limited these to 6X6.
Erisman — The deck is a structure and so not appropriate.
Wilkinson — Suggested moving it outside the 50 -foot buffer.
Page 1 of 6
Minutes November 29 2017 adopted Dec. 20
Perry — He inspected the rubble; there are only a few discrete locations that have material that should not be
there. It is a mix of mica, granite, and slate. The discrete material could be manually separated and removed, the
bulk of the material would be difficult to remove and does provide a back -fill function. He dug a lot on the
beach looking for evidence of sheeting.
Golding — He questions whether or not the house is entitled to protection. Looking at the aerial, the bulkhead
is impeding keeping the beach open. His gut reaction is to let nature takes its course.
Dale — Wonders if there's a way to allow the repair to the bulkhead and also restore the beach by providing
nourishment.
Erisman — Sand from a pit is not beach sand; using that continues to alter the environment.
Bennett — We have allowed the use of pit sand in the past.
Steinauer — Asked when the renovation work on the house came before the commission.
Dale — Admitted that unpermitted work was done about one year ago of putting stone behind the bulkhead.
Steinauer — Need to find a way to allow public access along the beach.
Erisman — Most high tides, the water is hitting the bulkhead inhibiting public access.
Wilkinson — Stated he looked at possibly removing the bulkhead in favor of a softer solution; he could not
find a safe or practical way to do that.
Bennett — At the first hearing, a concern about flanking was brought up.
Perry — The east end has sheeting so the flanking issue is not critical.
Molden — Since this is being continued, urged the commissioners to go through all the previous orders.
Looking at previous orders, nourishment has been an on-going monitoring condition; read a finding in regards
to nourishment being used to minimize the adverse affect of the project.
Dale — Asked to continue to Jan 10, 2018 to allow them to look into chapter 91 and nourishment issues.
Staff Grandfathering is a difficult issue to resolve when conditions, under which the previous permit was issued,
have changed.
Typically a Chapter 91 license requires passage over or around the structure. We could required in the Order
that they obtain a property Chapter 91 license.
Motion Continued to January 10, 2018 by unanimous consent.
Vote N/A
3. lleisenberg - 30 Wauwinet Road (20-18) SE48-3018 Cont (01/10/2018)
4. 36 Lily Street, LLC — 36 & 36B Lily Street (42.4.3-93 & 94) SE48-3005
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Documentation Site and topographical plans, photos, requisite departmental reports and correspondence.
Representative Brian Madden, LEC Environmental — Reviewed additional information provided in regards to land subject to
flooding, proposed fill, run-off storage volume, and the driveway. No structures are proposed 'within the 50 -
foot buffer to the vegetated wetland; we are proposing to revegetate portions of the wetlands currently
occupied by lawn and wholly restore the 25 -foot buffer with native species so requesting a waiver for that
work. The structures will be on slab but the piles will not have 2 -foot separation from groundwater and are
requesting a waiver for that.
Public Emily Molden, Nantucket Land Council — Same concerns as last time about fertilizer and herbicide in the
run-off going into the stormwater system and ultimately into the Harbor.
Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP for the Lown -s at 40 Lily Street, Wests at 35 North
Liberty Street, and Grays at 32 Lily Street— They appreciate the changes. This is a complex site with
topography and drainage; the main concern is the area of the driveway run-off work as intended. Would like
the Order of Conditions recognized the need for on-going maintenance and monitoring to ensure the system is
working and peastone is not washing out.
Discussion (4:46) Erisman — Asked if the driveway would be edged sufficiently to retain the peastone.
Madden — There is a little lip that will be manipulated to prevent that; there will be edging to prevent leaking
to the side. Will accept a condition of no use of fertilizer in the restoration areas.
Staff Have everything needed to close.
Motion Motion to Close. (made by: Golding) (seconded by: Topham)
Vote Carried unanimously
5. Flint Hills Partners, LLC — 74 West Chester Street (41-478) SE48-3017 Cont (12/20/2017)
Page 2 of 6
Minutes November 29, 2017, adopted Dec. 20
6. Thirty -Nine Hulbert LLC — 39 Hulbert Avenue (29-19) SE48-3035
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Documentation Site and topographical plans, photos, requisite departmental reports and correspondence.
Representative Paul Santos, Nantucket Surveyors — This was continued for a file number. This is all within land subject to
coastal storm flowage; there is timber bulkhead that acts as a coastal bank. The application is to elevate the
structures to be compliant with current flood -zone requirements. There will be no change in grade along the
roads; a 1 -foot change of grade will occur within the courtyard. Asking for a waiver because additional steps
will occur within the 25 -foot no -build area, which is alreadv developed. The cottage was renovated and the
garage added four or five years ago prior to the 2014 flood zone changes. All the structures .vill have flow-
through foundations.
Public None
Discussion (5:00) Steinauer — We should condition that all hazardous material be stored above the flood plain.
Erisman — There are a lot of ornamentals on this property require fertilization; no use of fertilizers should also
be in the conditions.
Topham — Confirmed that the grade change will not significantly change the capacity of the land to manage
flood waters and not require any retainage.
Erisman — Asked about the amount light on the house and from the windows on the harbor side.
Santos — He doesn't have an answer for that.
Staff It doesn't trigger a waiver request because the performance standards say the capacity of the land to hold flood
waters not be altered.
A condition can require all lighting be directed away from the harbor.
Have everything needed to close.
Motion Motion to Close. (made by: Golding) (seconded by: Steinauer)
Vote Carried unanimously
7. Philips Trustee — 19 East Tristam Avenue (31-4.1) SE48-3034 Cont (12/20/2017)
8. Shawkemo 1, LLC — 36 Shawkemo Road (27-3) SE48-3032
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Documentation Site and topographical plans, photos, requisite departmental reports and correspondence.
Representative Brian Madden, LEC Environmental — At the last hearing, concern was raised about the northeast corner of
the retaining wall for the pool being within the buffer; that has been revised to keep it outside the 50 -foot
buffer. The area will be planted with native bayberry. The project represents a net benefit. Massachusetts
Natural Heritage (NINH) ruled no adverse affect/no take.
Public None
Discussion (5:o9) None
Staff Have everything needed to close.
I lotion Motion to Close. (made by: Steinauer) (seconded by: Topham)
Vote Carried unanimously
9. Powers Revocable Trust — 164 Hummock Pond Road (65-13.1) SE48-3031
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Documentation Site and topographical plans, photos, requisite departmental reports and correspondence.
Representative Brian Madden, LEC Environmental — Reviewed proposed changes to the project and additional input as
requested: remove/relocate additional structures and restore their footprints, refined the wetland boundary.
Don Bracken, Bracken Engineering — Addressed the septic system, which was initially approved outside the
100 -foot buffer to the wetland; those boundary lines have changed.
Public Emily Molden, Nantucket Land Council — Asked the ratio of the wetland restoration area. Would like to
ensure everything is brought into maximum compliance. Would like the septic plans included with this filing,
asked when the septic was last inspected.
Discussion (5:12) Erisman — Asked about the timeline for knotweed removal and restoration.
Madden — Cutting in June and September.
Erisman — Asked if any soil testing has been done; a lot petroleum products, machinery and vehicles have
been stored on this property.
Madden — To his knowledge, no soil testing has been done; much of that has been removed. Ther will
provide more information shifting the driveway to avoid the wetland boundary.
Erisman — Would like a list of plants to be submitted prior to work starting.
Bracken — He did a test pit up front that showed mottling up to 25 inches.
Madden — The wetland restoration ratio is 2.5:1. Asked to continue to December 20.
Staff He asked Mr. Madden about the southern property line; we're also dealing with a site where nothing has ever
been permitted. The concrete pad, gravel drive, and several buildings should have been permitted. When we
adopt the plan, we are permitting in place. Noted that a building on the southeast side of the lot was built on a
filled-in resource area.
He'd be interested in knowing the actual groundwater at the septic system prior to drafting the order of
conditions. There should be a finding that references when the septic was installed it was outside the buffer.
:Motion Continued to December 20, 2017 by unanimous consent.
Vote N/A
Page 3 of 6
Minutes November 29 2017 adopted Dec. 20
10. Dupuis — 41 Millbrook Road (56-69&70) SE48-3030
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Documentation Site and topographical plans, photos, requisite departmental reports and correspondence.
Representative Mark Rits, Site Design Engineering — Reviewed the project. Abutters raised concern about run-off mainly to
the east; to address those issues will put a retaining wall around the patio and create a swale between the wall
and property line and install two catch basins to an infiltration chamber on the east and north sides outside the
100 -foot buffer.
Public Paul Quirke, 39 Millbrook Road — He still has concerns about the effect of the emptying of the pool and run
off on the wetlands, and the abutters.
Jeff Ballinger, owner 39 Millbrook Road — Noted how close everything is to the property line. Shares Mr.
Quirke's concern about pumpout of the pool.
Discussion (5:41) Golding — Asked about fill that might have been put in where the pool is proposed; a pool expert told him
that a pool built in an area that was previously filled is potentially unstable and recommended a cement pad
underneath to support it.
Rits — Looking at the existing grade between this and the abutting properties, it looks like there was as much as
four feet of fill; the pool will sit on native material below that. Noted the proposed location for the silt fence.
Current elevation is between 27 & 28 and the wetland is between 19 & 17; he estimates groundwater is around
10 with the pool well outside two feet of that. They will accept any conditions in regards to the pump out of
the pool; also the patio is pervious and they are providing infiltration.
Erisman — Wants any lighting around the pool conditioned to be directed away- from the wetland.
Bennett — Suggested perhaps some sort of drainage provided within the patio.
Further discussion about mitigation of run-off.
Golding — Putting a pool right up against the 50 -foot buffer, puts additional pressure on the wetlands; that
should be minimized as much as possible.
Rits — They will pursue the idea of minimizing the grading adjacent to the patio and wall and additional
plantings. Asked for a continuance to December 20, 2017.
Staff None
;Motion Continued to December 20, 2017 by unanimous consent.
Vote N/A
11. *David E. & Lisa B. Auer — 4 South Cambridge Street (59.4-11) SE48- Cont (12/20/2017)
12. *Shimmo Pond Road Nominee Trust — 46 Shimmo Pond Road (43-77) SE48-3037 Cont (12/20/2017)
13. *Annette AI. Hurd et al —10 Brant Point Road (31-4.1) SE48-3036
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Documentation Site and topographical plans, photos, requisite departmental reports and correspondence.
Representative Don Bracken, Bracken Engineering — This is within land subject to coastal storm flowage; the proposal is to
remove an existing deck and construct an addition and enclose the existing covered porch; no changes to
grade.
Public None
Discussion (6:05) None
Staff Have everything needed to close.
Motion Motion to Close. (made by: Topham) (seconded by: Steinauer)
Vote Carried unanimously
14. *Patrice M. Calnen & Robert W. Calnen, Jr — 334 Madaket Road (60-141) SE48-3038
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Documentation Site and topographical plans, photos, requisite departmental reports and correspondence.
Representative Arthur D. Gasbarro, Nantucket Engineering & Survey — This is for work within buffer to eroding coastal
bank to pick up and move them as far from the bank as possible. The existing foundation would be removed
and the area backfilled with clean sand. The septic is still about 30-40 feet from the bank; at such time as it
becomes compromised, would look into a tight tank or another option.
Public None
Discussion (6:09) None
Staff We could condition a trigger that when the leech trenches get within a certain distance of the bank it requires a
visit with the commission to determine the next course of action. One goal of the Town is to get permits in
place so that if septics get perilously close, we've already talked about removal.
Have everything needed to close.
Motion Motion to Close. (made by: Steinauer) (seconded by: Topham)
Vote Carried unanimously
Page 4 of 6
Minutes November 29 2017 adopted Dec 20
B. Amended Orders of Conditions
1. Oak Hollow Realty Trust — 12A Oak Hollow Road (56-128.1) NAN-116
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Documentation Site and topographical plans, photos, requisite departmental reports and correspondence.
Representative Don Bracken, Bracken Engineering — The resource is a vegetated wetland. No change in the limit of work or
the driveway towards the wetland side. The cottage was originally placed as 100 feet from the wetland; a
revision is to place it 86 feet away and to accommodate that relocation, the driveway is being reconfigured.
Also will be relocating the well.
Public None
Discussion (6:13) Erisman — Asked if the depression along the driveway would be planted.
Bracken — It would be with grass but not mowed.
Staff Recommend this be closed and issued.
Motion Motion to Close and Issue. (made by: Steinauer) (seconded by: Golding)
Vote Carried unanimously
2. 96 Squam Road, LLC - 96 Squam Road (12-33) SE48-2979 Cont (12/20/2017)
3. Matthew Holt - 98 Squam Road (12-36) SE48-2898 Cont (12/20/2017)
I. PUBLIC MEETING
A. Requests for Determination of Applicability
1. Doerte Neudert — 18 Dukes Road (41-62)
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Documentation Site and topographical plans, photos, requisite departmental reports and correspondence.
Representative Don Bracken, Bracken Engineering — This is for abandoning the septic and tying into the sewer system. No
wetlands on the property but across the street and to the southeast.
Discussion (6:17) None
Staff Recommends a Negative 3 for work in the buffer zone.
Motion Motion to Approve as a Negative 3. (made by: Steinauer) (seconded by: Topham)
Vote Carried unanimously
2. Abbott D. Weiss — 49 Red Barn Road (63-15)
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Documentation Site and topographical plans, photos, requisite departmental reports and correspondence.
Representative Paul Santos, Nantucket Surveyors — This is for the replacement of a technically failed septic. Will abandon the
existing tank, within the 100 -foot setback, and leech pit and build a new code -compliant system outside the
100 -foot setback to an eroding coastal bank. The existing leech pit will be abandoned in place and filled with
sand.
Discussion (6:18) None
Staff Recommends a Positive 2A on the coastal bank and Negative 3 for work in the buffer zone.
Motion Motion to Approve as a Positive 2A and Negative 3. (made by: Steinauer) (seconded by: Topham)
Vote Carried unanimously
B. Certificates of Compliance
1. 21 Massachusetts Avenue Nominee Trust — 21 Massachusetts Avenue (60.3.1-312) SE48-2860
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Staff This is for installation of a tight tank, which was installed and is in compliance. Recommend issue.
Discussion (6:21) None
Motion Motion to Issue. (made by: Erisman) (seconded by: Topham)
Vote Carried unanimously
2. Ward — 99 Squam Road (12-29) SE48-2152
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Staff For construction of a foot path from Squam Road to the beach; recommends issue.
Discussion (6:22) None
Motion Motion to Issue. (made by: Topham) (seconded by: Golding)
Vote Carried unanimously
C. Orders of Condition
1. 36 Lily Street, LLC — 36 & 36B Lily Street (42.4.3-93 & 94) SE48-3005
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Staff Will add Condition 22 prohibiting fertilizer use within the restoration areas and requiring an annual report on
the amount of fertilizer used. Mosquitoes fall under public health.
Will add Condition 23 requiring temporary sheeting on the driveway prior to construction for pedestrian use.
Will add Condition 24 requiring an annual report on the condition, function, and maintenance of the driveway.
Discussion (6:22) Erisman — Asked if it's possible to track when the property is sprayed for mosquitoes.
Discussion about the peastone and sheeting over the driveway during construction.
Motion Motion to Issue as amended. (made by: Steinauer) (seconded by: Topham)
Vote Carried unanimously
Page 5 of 6
Minutes November 29 2017 adopted Dec. 20
2. Albert Rabil, III & Tamara Lee Rabil — 141 Cliff Road (30-1,2,3,4,5,6 & 7) SE48-3026
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Staff This is for an erosion control structure, a version of the Wilkinson array, and has the same conditions as similar
projects. Reviewed the conditions. Noted an error on reference to the site plan.
Discussion (6:29) Golding — About the transepts, noted a typo.
Motion Motion to Issue as amended. (made by: Golding) (seconded by: Steinauer)
Vote Carried unanimously
3. Thirty -Nine Hulbert LLC — 39 Hulbert Avenue (29-19) SE48-3035
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Staff Fertilizer is already conditioned requiring an annual report.
Will add a condition requiring the as -built plans to include the elevations of all grades.
Discussion (636) Erisman — Asked for a condition on fertilizer use.
Topham — Asked the fill.
Motion Motion to Issue as amended. (made by: Topham) (seconded by: Steinauer)
Vote Carried unanimously
4. Shawkemo I, LLC — 36 Shawkemo Road (27-3) SE48-3032
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Staff Pretty straight forward.
Discussion (6:38) None
\lotion Motion to Issue. (made by: Golding) (seconded by: Steinauer)
Vote Carried unanimously
5. Annette M. Hurd et al — 10 Brant Point Road (31-4.1) SE48-3036
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Staff No special conditions.
Discussion (6:40) None
Motion Motion to Issue. (made by: Golding) (seconded by: Steinauer)
Vote Carried unanimously
6. Patrice M. Calnen & Robert W. Calnen, jr — 334 Madaket Road (60-141) SE48-3038
Sitting Bennett, Erisman, Steinauer, Golding, Topham
Staff Will add Condition 19 triggering when they have to come back to the commission.
Will note that the relocation of the structure is permitted due to erosion of the coastal bank.
Discussion (6:41) None
Motion Motion to Issue as amended. (made by: Golding) (seconded by: Steinauer)
Vote Carried unanimously
D. Other Business
1. Approval of Minutes 11/15/2017: Approved by unanimous consent.
2. Enforcement Actions - None
3. Reports:
a. CPC, Golding
b. NP&EDC, Bennett
c. Mosquito Control Committee, Erisman
4. Commissioners Comment
a. Golding — Ms Molden pointed out there hasn't been any monitoring reports for 20 years on sand nourishment; asked
if the office needs software to track monitoring reports. Carlson — We need some regulator- authority for
enforcement; that's why monitoring reports are now added to the agenda. The data base on monitoring reports
associated with issued permits only goes back about two years. To go back before that they would have to go through
every file and they don't have the staff for that. Another issue is the number of orders that reference previous orders; if
it's not referenced on the latest certificate, the property owner is free and clear. Reviewed the steps necessary to create a
bylaw and establish enforcement fines to include a public hearing.
b. Erisman — Asked if it's possible to get the Worchester Poly -technical Institute to do a study of wetlands to quantify
the amount of encroachment that's been allowed and how the wetland lines have changed. Carlson — A lot of the
historic wetland lines have changed and not all delineators are good. We didn't require soil information until 2000; also,
our requirements are different than the Army Corps of Engineers. A build -out study_ would be interesting.
5. Administrator/Staff Reports
a. Two years ago there was a non-binding vote at town Meeting to establish a 3 -mile buffer around the Island to
protect us from commercial fishing. In the last year, a court decision came out in favor of ConCom; Province
Town is having problems with commercial hydraulic dredging off their coast; their ConCom passed a regulation
prohibiting hydraulic dredging of land under the ocean out to three miles and the judge upheld the wetlands
protection act over the commercial fisheries. He's looking into how to make that work to protect the habitats
around Nantucket.
Motion to Adjourn: 705 p.m.
Submitted by:
Terry L. Norton
Page 6 of 6