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HomeMy WebLinkAbout2018-10-3ConCom Minutes for October 3 2018 adopted Oct.17 CONSERVATION COMMISSION PUBLIC MEETING 2 Bathing Beach Road Nantucket, Massachusetts 02554 www nantucket-ma.gov Wednesday, October 3, 2018 4 Fairgrounds Road, Training Room — 4:00 p.m. Commissioners: Andrew Bennett(Chair), Ashley Erisman(Vice Chair), Ernie Steinauer, David LaFleur, Z Ben Champoux, Ian Golding, Joe Topham -. Called to order at 4:06 p.m. �p Staff in attendance: Jeff Carlson, Natural Resources Coordinator; Joanne Dodd, Natural Resour5a Office Administrator; Terry Norton, Town Minutes Taker i Attending Members: Bennett, Erisman, Steinauer, Champoux, Golding, Topham CP � Absent Members: LaFleur_ Late Arrivals: None Earlier Departure: None Agenda adopted by unanimous consent *Matter has not been heard I. PUBLIC MEETING A. Announcements B. Public Comment — None II. PUBLIC HEARING A. Notice of Intent 1. 21 Crooked Lane, LLC —1 West Chester Street Ext. (41-480 portion) SE48-3064 Withdrawal Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Discussion (4:06) None Staff None Motion Motion to Accept the Withdrawal. (made by: Champoux) (seconded by: Topham) Vote Carried unanimously 2. E. Garrett Bewkes III — 67 Squam Road (13-14) SE48-3112 Sitting Bennett, Erisman, Steinauer, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Art Gasbarro, Nantucket Engineering & Survey Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP Brian Madden, LEC Environmental Public Kevin Dale, Vaughan, Dale, Hunter and Beaudette P.C., Rich & Claudia Gatto at 69 Squam Road Discussion (4:07) Gasbarro — This is to relocate a sand, travel way off private property into the legal way. Resource area is a bordering vegetated wetland. Reviewed revised plan that tightens up the limit of work and shows the silt fencing. Mr. Madden reviewed the application and area of work and submitted a letter confirming negligible adverse impact. This qualifies for the requested waiver under no reasonable alternative/no adverse impact Reade — On the no reasonable alternative point, that relates to this way being the only access location into Mr. Bewkes house due to the wetlands. The existing traveled way deviates from the layout and is partially into land not subject to an easement. He has been in communication of that property owner who indicated that an easement would be problematic; also, we do not have a proscriptive easement for the current location of the drive. All that information is included in the packet. Erisman — Confirmed that there will be a marker on the side of the road to keep people from driving off it Bennett — Asked if there was physical evidence the way is in an old road layout. (No) Dale — His client opposes the request for the waiver. There are alternatives the applicant should pursue that would allow this to remain where it is. This travelled way has been there more 62 years with no problem. One solution is to ask the applicant to seek an easement from Squam Head, LLC; until that easement is pursued, it remains a reasonable alternative. Title insurance is another reasonable alternative. It is likely that Mr. Bewkes has an implied easement by necessity; this land and Squam Head was all under single ownership so there is a common grantor and unity of title. There is an adverse impact; it's not just the construction and relocation of the road, there is use of the road by motorized vehicles; they will have more than a negligible impact on the wetland vegetation. Asked ConCom to either deny the application or at least ask the applicant to pursue all reasonable alternatives. Reade — This existing way has been used by fossil -fuel vehicles for years with no adverse impact; there will be no additional vehicles. This right of way is also used by other property owners in the area. This has been registered land up until 2008; the property was split up by a common owner and the easement and way were created. The principal of Squam Head, LLC wrote that he is not optimistic he could be convinced to issue an Page 1 of 6 ConCom Minutes for October 3, 2018, adopted Oct.17 easement. We are trying to solve an access problem, whereby use of the way caused it to deviate from the legal way. He believes they have met the performance standards. Dale — Rebutted Mr. Reade's comments. Madden — No native vegetation will be removed, at best there will be pruning back brush. The elbow in question has standing water in Spring; recommend sloping, gravel base, and hardener to stabilize the area. The work activity meets the definition for no adverse impact. Steinauer — Asked how many square feet (SF) of the way would encroach into the buffer zone. Golding — 170 SF. He'd like Town Counsel to weigh in on this; He would prefer no work within the 25 -foot no disturb zone. It would be helpful if the applicant and Gattos could come to a compromise. Erisman — Looking at other areas where this is widening, asked if the way can be kept the same width so that it doesn't encroach as much. Gasbarro — He minimized the width to the extent possible; more room is needed on a curve to maneuver. One portion of the way already encroaches further into the 25 -foot buffer than the proposed area of work. Madden — Relative to contaminants from vehicles, that's more of an issue with parked cars. Dale — Argues the impact is more than negligible. Encroaching six feet into the buffer and using hardener is more than negligible. Bennett — The road is moving six feet not six feet into the 25 -foot buffer. Topham — Confirmed the flagged edge of the road. Gasbarro — Flag 52 is where the road already encroaches. Pointed out that it's not 170 SF of disturbance in the 25 -foot buffer; that's total area of work. The actual area of disturbance within the buffer is small Steinauer — Apologized for sounding cynical but he wonders if what's really going on is someone who assumed his property went up to the way as it exists is now going to lose what he thought was his yard. Discussion about the use of hardener and if there will be an increase of runoff into the wetland. Bennett — The right of way isn't under ConCom purview. Asked if other commissioners want to hear from Town Counsel. (No response) Staff No reasonable alternative also has a qualifier, "... that would allow the project to proceed in compliance with the regulation." Have everything needed to close. Motion Motion to Close. (made by: Topham) (seconded by: Steinauer) VoteCarried 4-1 //Golding opposed Champoux recused 3. Ninet en BR Property, LLC —19 Baxter Road (49.2.3-14) SE48-3116 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Represeritative Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP Public None Discussi( n (4: o) Reade — This involves the relocation of a path to the beach that meanders onto an adjacent property. The portion going onto the adjacent property will be blocked with vegetation to prevent usage. This was continued due to no file number. Staff Have everything needed to close. Motion Motion to Close. (made by: Champoux) (seconded by: Topham) Vote Carried unanimously 4. * eth 8c Kim White — 47A West Chester Street (41-227.1) SE48-3117 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Brian Madden, LEC Environmental Public None Discussion (4: 1) Madden — For construction of a cottage. No work is proposed within the 25 -foot buffer to wetlands across a shared access driveway. At the request of the abutter, a hedgerow was included around the cottage and statement confirming no additional hardscaping. No waivers proposed. Foundation to be a crawl space. Staff Have everything needed to close. Motion Motion to Close. (made by: Champoux) (seconded by: Steinauer) Vote Carried unanimously 5. * d G. & Nan M. Freeman — 68 Union Street (55.1.4-68) SE48-3118 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Docume tatio Site and topographical plans, photos, requisite departmental reports and correspondence. Represenlativ Brian Maxwell, Bracken Engineering, Inc. Public None Discussio a (4:5) Maxwell — This is to raise an existing cottage to be compliant with FEMA requirements. Golding — There is no description of the project in the package, no dimensions. Maxwell — The crawl space is at about elevation 4; first floor going up four feet. Staff Have everything needed to close. Motion Motion to Close. (made by: Steinauer) (seconded by: Topham) Vote Carried unanimously Page 2 of 6 ConCom Minutes for October 3 2018 adopted Oct.17 6. *Jon & Kerry Walker —112 Wauwinet Road (11-20) SE48-3119 (Cont. 10/17/2018) 7. *Morris & Karen Smith — 235 Madaket Road (59.4-364) SE48-3121 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative David M. Haines, Haines Hydrogeologic Consulting Jessie Dutra, Waterscapes by Jessie Public None Discussion (5:02) Haines — This is for a swimming pool. Resource areas are bordering vegetated wetlands, within 100 -year flood elevation, and the wood and stone retaining walls are now considered coastal bank because of the flood area. He did an alternative analysis to get the pool away from the coastal bank; the only location is elevation 3.4 so fill and dewatering will be necessary. Propose to relocate the wood retaining wall five or six feet, put in the pool, then build additional retaining around the pool and patio. Wetlands Protection Act did not consider land subject to coastal storm flowage; the local bylaw specifically addresses that resource area. Explained how he calculated flood water displacement volume. Explained the flood storage area. Requesting a waiver for work within 50 feet of a coastal bank, the retaining walls. Golding — If there is that much flooding, the proposed flood storage seems to be inconsequential. Erisman — The plan is confusing for her. Dutra — Clarified the plan. Steinauer — We don't usually allow walls in the flood zone, so water can flow through. Discussion about manipulating the flow of flood waters and flood storage within a property so it continues to handle the historical volume of flood waters. Dutra — The flood storage in the back would be planted with natural vegetation. Staff The flood zone area gives this area a 1% chance of flooding. It flooded last winter. There are a number of places where we've permitted retaining walls in the flood zone; we didn't think of it as permitting construction of a coastal bank. Have everything needed to close. Motion Motion to Close. (made by: Topham) (seconded by: Champoux) Vote Carried unanimously 8. *August Pointe, LLC — 7 Walsh Street (42.4.1-55) SE48-3120 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Jeff Blackwell, Blackwell & Associates Public None Discussion (5:25) Blackwell — The resource is land subject to coastal storm flowage. This is for construction of a new dwelling on a concrete foundation with flood vents; roof runoff is directed into low -runoff infiltrators; no proposed change in grade. The existing asphalt driveway is being removed. The shed will be on piers with flood vents. Champoux — The foundation displaces flood waters. Golding — Wants the basement conditioned with no hard floor. Staff Have everything needed to close. Motion Motion to Close. (made by: Steinauer) (seconded by: Topham) Vote Carried unanimously III. PUBLIC MEETING A. Requests for Determination of Applicability 1. 56 Monomoy Road Realty Trust - 56 Monomoy Road (43-41) Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Paul Santos, Nantucket Surveyors Public None Discussion (5:32) Santos — This is to establish the resource areas on a developed lot. The plan shows existing conditions; the site is tied to public sewer and Town water. Resource areas include: the harbor land under the ocean, salt marsh, coastal beach, coastal dune, land subject to coastal storm flowage, bordering vegetated wetland, isolated vegetated wetland, FEMA flood zone, and drainage ditch. The most restrictive resource area is the FEMA flood zone; it is determined to be a policy coastal bank. Staff When we did our site inspection, on the north end there are two salt marshes that have been added to the plan and would have to meet the performance standards. Recommend issue as a Positive 2A confirming resource areas. Motion Motion to Issue as a Positive 2A. (made by: Champoux) (seconded by: Steinauer) Vote Carried unanimously Page 3 of 6 ConCom Minutes for October 3, 2018, adopted Oct. 17 2. Blue Shutters Realty Trust — 4 & 2 Hulbert Ave (42.1.4-2 & 2.1) Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Documentation Site and topographical plans, photos, requisite departmental reports and correspondence. Representative Paul Santos, Nantucket Surveyors Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP Public None Discussion (:38) Santos — To establish/confirm the resource areas, which include: bordering vegetated wetland and land subject to coastal storm flowage. Some flags have changed from the original filing. Reade —The same family owns both lots. Staff We verified all the flags. Recommend issue as a Positive 2A confirming resource areas. Motion Motion to Issue as a Positive 2A. (made by: Golding) (seconded by: Steinauer) Vote Carried unanimously B. Certificates of Compliance 1. Smith — 62 West Chester Street (41-373) SE48-2625 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Staff This was issued to allow completion of half -done work. Recommend issuing. Discussi n (5 42) Erisman — Asked if the conditions for planting would be continued. Carlson — No. New orders are being opened that will address that more carefully. Motion Motion to Issue. (made by: Champoux) (seconded by: Steinauer) Vote Carried unanimously 2. el O'Mara — 240 Polpis Road (26-23) SE48-2451 (Cont. 10/17/2018) C. Orders of Condition 1. E. Garrett Bewkes III — 67 Squam Road (13-14) SE48-3112 Sitting Bennett, Erisman, Steinauer, Golding, Topham Staff Will add Condition 20 addressing marking the edge of the new roadway. Discussion (5:44) Topham — Suggested considering marking the road so it doesn't migrate again. Motion Motion to Approve as amended. (made by: Topham) (seconded by: Steinauer) Vote Carried 4-1//Golding opposed, Champoux recused. 2. inet.-en BR Property, LLC —19 Baxter Road (49.2.3-14) SE48-3116 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Staff Will add a condition requiring native plants. Will add Condition 19 addressing plant survival rate. Discussion (5:49) Erisman — Wants a condition for using only native plants. Champoux — Asked for a failure criteria for plants. Motion Motion to Approve as amended. (made by: Golding) (seconded by: Champoux) Vote Carried unanimously 3. P Norwell —111 Washington Street (55.1.4-71) SE48-3116 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Staff Reviewed conditions addressing issues specific to this site. Will add to Condition 28 requiring an Amend Order of Conditions for use of herbicides. Asked for support to add Condition 29 addressing the transfer of Town property to be filed with the Town. Condition 30 requires that a ConCom wetland specialist be on site during work. Discussi n (5: 2) Steinauer — Asked for a condition about seeking amended order for use herbicides. Champoux — Condition 21: "any" plant. Also we had talked about a wetland specialist being on site. Motion Motion to Approve as amended. (made by: Topham) (seconded by: Champoux) Vote Carried unanimously 4. Seth Kim White — 47A West Chester Street (41-227.1) SE48-3117 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Staff Will add a Condition requiring the vegetated screen to be native species Discussion (5:58) Erisman — Wants to require native plants. Motion Motion to Approve as amended. (made by: Champoux) (seconded by: Steinauer) Vote Carried unanimously 5. da. G. & Nan M. Freeman — 68 Union Street (55.1.4-68) SE48-3118 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Staff Will add Condition 19 about maintaining existing grade. Will add Condition 20 requiring the interior of the crawl space be a pervious material. Discussio (6:0) Golding — Asked to condition no increase in grade. Bennett — Pervious interior crawl space. Motion Motion to Approve as amended. (made by: Topham) (seconded by: Champoux) Vote Carried unanimously Page 4 of 6 ConCom Minutes for October 3, 2018, adopted Oct -17 6. Morris & Karen Smith — 235 Madaket Road (59.4-364) SE48-3121 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Staff Didn't draft an order of conditions. Discussion (6:03) Champoux — Area 2 is closest to the pool and should be native vegetation and monitoring. Motion No action at this time. Vote N/A 7. August Pointe, LLC — 7 Walsh Street (42.4.1-55) SE48-3120 Sitting Bennett, Erisman, Steinauer, Champoux, Golding, Topham Staff Not audible Discussion (6:05) Not audible Motion Motion to Approve as amended. (made by: Golding) (seconded by: Topham) Vote Carried unanimously D. Other Business 1. Approval of Minutes 09/19/2018 & 9/17/18 SBPF: Adopted by unanimous consent. 2. Monitoring Report: Seth & Kim White — 74A West Chester Street (41-227.1) SE48-2865 3. Enforcement Actions a. Marsha Fader — 36 Liberty Street (42.3.4-83) Sitting Bennett, Erisman, Champoux, Topham Staff The pond is documented as man-made built in the 1910s; work was done in the pond and it was partially drained. Discussion (6:07) Marsha Fader, owner — Reviewed the historical plan from 1910. She has been a steward of the property as long as she has lived there: the pond is planted with water lilies; the pond dries out about the end of August; at that time, she digs out the silt, old root structure, and dead plants and places that material on the pond perimeter. This is on-going maintenance to maintain the water feature. Submitted into the record a letter explaining what she does; letter includes a plant list and historic photos. Erisman — The issue is the migration of other resource areas over time onto this property. Bennett — Asked if the pond is lined with clay. Carlson — This pond is that this area sits on a large vein of clay. These ponds are often dug in areas that puddle. With the information we were given, hydric soils have developed in and around this pond; to the west is another wetland area that seems to be trying to connect. Champoux —The unintended consequence is over time the pond is connecting to natural wetland area thus changing the buffer zone. Erisman — We need to know exactly where the boundaries he. Would like soil tests to confirm the resource areas. That would help determine how the pond should be maintained going forward. Carlson —The State Act and local bylaw require that any activity within 100 feet of resource area have a permit unless it can be proven to be normal maintenance, such as mowing. New plants might require a NOI depending on the buffer. Fader — She feels what she did is clearly maintenance. If the buildup of muck isn't removed, it has a major impact on the surrounding area. Things happen, and she needs to clean up even though it's within a resource area; she's frustrated that she would have to get a permit to do that. Currently, there is no work underway. Erisman — Part of the impact this pond has on the area is due to the complex system of wetlands in this neighborhood. Carlson — A RDA helps us understand the location of the resource areas and determine when a permit is necessary for what types of work. We want to set Ms Fader up so she can do her work and not keep ending up back in front of the board. Discussion about the need to delineate resource area boundaries to be in compliance with State and Local laws. Fader — Expressed her frustration at feeling like she and the pond are being singled out in an area that has many different water issues. This is a pond with a defined border; doesn't know what else the commission is looking for. Commissioners want time to review the information and take this up at a later meeting. Carlson — The commission doesn't have to take action today but they do have to take some type of action that could include releasing the enforcement order or taking punitive measures. Motion Continued. Vote N/A //Steinauer and Golding recused Page 5 of 6 Minutes for October 3 2018 adopted Oct.17 4. a. CPC, Golding 5. Commissioners Comment a. La xy Cronin — In the last 20 or 30 years, highly invasive water plants are coming onto the Island from off -Island landscape contractors. Asked the procedure for removing those invasive species. Di cussion of the permitting procedure for invasive species removal adjacent to resource areas. E sman — Asked for copies of the photos taken in connection with the enforcement order. 6. istratnr/OtaffRet.nrtc funded everyone Special Town Meeting is Wednesday, October 10; there is an article pertaining to use of Town- ied coastal property for non-governmental erosion control structures. will send commissioners a supreme -court ruling on easement by necessity; you can't have it even on an ancient way must negotiate an easement. iated the vehicle tracks through resource areas on Smiths Point. 7:08 p.m. by unanimous consent. Terry Page 6 of 6